Legal and Constitutional Affairs Legislation Committee : 15/04/2024 : Migration Amendment (Removal and Other Measures) Bill 2024 (2024)

CAVANAGH, Ms Tara, Group Manager, Immigration Policy, Department of Home Affairs

CUNNINGTON, Mr Kevin, Assistant Secretary, Legislation, Department of Home Affairs

FOSTER, Ms Stephanie, Secretary, Department of Home Affairs

JEFFERY, Ms Sandra, Acting First Assistant Secretary, Immigration Programs, Department of Home Affairs

SHARP, Ms Clare, Group Manager, Legal Group, Department of Home Affairs

SONTER, Rear Admiral Brett, Commander, Joint Agency Task Force Operation Sovereign Borders, Australian Border Force

THOMAS, Mr Michael, Group Manager, Department of Home Affairs

CHAIR: We will resume the hearing. I now welcome representatives from the Department of Home Affairs and Operation Sovereign Borders. Thank you for taking the time to meet with the committee today. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you and is available from the secretariat. I remind senators and witnesses that the Senate has resolved that an officer of a department of the Commonwealth or the state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions around when and how policies were adopted. Do you have any comments to make on the capacity in which you appear?

Rear Adm. Sonter : I am also the commander of the Maritime Border Command.

CHAIR: Ms Foster, would you like to make an opening statement before we go to questions?

Ms Foster : Yes, thank you. I thank the committee for the opportunity to appear before you today.

Firstly, I wish to acknowledge the concerns raised by those who have appeared before us at today's hearing, particularly in relation to family unity. In making any decision to cancel or refuse a visa, that decision-maker must consider the best interests of the child. Our obligations under article 3 of the Convention on the Rights of the Child are given effect through a series of operational policies and practices which have been the bedrock of our immigration system for many decades.

I'd like to emphasise that this bill provides a series of measures of last resort to be used in situations where people have come to the end of a lengthy set of processes to determine their right to remain in Australia. In the majority of cases, noncitizens on a removal pathway depart Australia voluntarily or cooperate in efforts to ensure their prompt and lawful removal. Last financial year we had 2,184 voluntary removals and 90 involuntary removals from detention. A further 6,000-plus people from the community on a removal pathway left Australia. I give you these statistics to highlight that the department always seeks to work with individuals to affect their removal when they no longer have a legal basis to remain.

Australia has a long and proud history of generous migration and humanitarian resettlement programs. These rely on the government also having the ability to remove people once they no longer have the lawful right to remain. This bill is an effort to deal with a gap in our legislative scheme for managing a critical aspect of the migration framework. It's also about strengthening the tools available to deal with a relatively small caseload of noncitizens who have come to the end of the line in their efforts to stay and who are not cooperating with lawful arrangements for their departure. Every opportunity has been given for this group of noncitizens to make their claims in relation to remaining in Australia. In nearly all cases, these noncitizens have exercised their right to merit review and judicial review of decisions to deny or cancel an Australian visa and no longer have a lawful basis to remain in Australia.

There's been a lot in the media that implies this bill will be used to expand the cohort of people who are required to be removed from Australia. To be clear, this bill does not expand the cohort of people who are required to be removed from Australia.

I wish to be clear about the application of this bill to noncitizens who have sought protection in Australia. We uphold our obligation to ensure that Australia does not breach international law on non-refoulement. Anyone with an ongoing protection visa application cannot be subject to a removal pathway direction until such time as their application has been finally determined.

I also wish to be clear that the provisions in this bill that allow the minister to revisit a protection finding apply only in relation to noncitizens who are on a removal pathway. Consistent with existing provisions in the Migration Act, it is appropriate to include an ability to reassess the circ*mstances of a person who is already on a removal pathway—for example, because they've committed a crime in Australia and are unable to meet the criteria for a visa to remain. Designating a country as a removal concern country would be a very serious matter taken in the national interest, and any decision to do so would be taken only after extensive consultation within the highest levels of government. Our first and highest priority will always be to work cooperatively with countries for them to accept the return of their citizens.

This is a starting point for implementation of this legislation if passed. There is no preconceived list of countries that might be designated. In a situation where we face problems with another country, we would hope that, in the first instance, the fact of this legislation being in place would be sufficient to allow us to negotiate an outcome. In the case of a designation being made, the legislation provides significant flexibility for it to be designed in a way that provides the greatest incentive for a foreign government to cooperate, as well as exemptions to ensure it does not punish communities in Australia.

We look forward to answering the committee's questions.

CHAIR: Thank you, Ms Foster. I think a copy of your opening statement has been circulated to senators, so we'll be able to review that. Senator Paterson, you have the call.

Senator PATERSON: Ms Foster, on page 6 of your submission you say:

Some people smugglers may seek to use some of the measures in the proposed legislation to market their services to vulnerable potential irregular immigrants, suggesting there is no legal way for them to travel to Australia.

You then go on to talk about some possible mitigations to that risk through strategic communications. I'll come to the mitigations in a moment, but which are the parts of the legislation that you're concerned may be used by people smugglers to send that message?

Ms Foster : I think the statement that's being made is one that's general, but I will pass to Rear Admiral Sonter to articulate the rationale behind that statement.

Rear Adm. Sonter : It's not a new risk. We constantly know that the people smugglers monitor the Australian-political domestic environment for key decisions or policy changes, whether real or perceived, to market to the unfortunate people that we see. Strategic communication is a tool that I have and have had for many years.

Senator PATERSON: I'll come to that. I've got some questions about that, but I want to establish the factual basis of your statement first, because it doesn't seem general in nature to me. It says 'some of the measures in the proposed legislation', so it's clearly relating to this bill in some way. Which are the measures in the proposed legislation that you are concerned could be misused by people smugglers in this way?

Rear Adm. Sonter : My concern is that they would take any element of that particular bill and they would actually articulate it in a non-truthful manner. Again, as I say, we are constantly countering that with agile strategic communications.

Senator PATERSON: So it's not the power to designate a country as a 'country of concern' and ban people from applying for visas? That's not the power?

Rear Adm. Sonter : That's not what I'm specifically talking to. It's more, as I say, some aspects which are general. We know that people smugglers take it, they take it into their own language and they try and sell it as the idea that our strong borders are no longer the case.

Senator PATERSON: Rear Admiral, were you involved in preparing this submission?

Rear Adm. Sonter : I was.

Senator PATERSON: Is this particular part of the submission based on your advice?

Rear Adm. Sonter : It is.

Senator PATERSON: Why didn't you say in the submission what you just said then, which is that people smugglers are liars, they'll say anything and it doesn't matter what our legislation is—they'll tell desperate people anything? You didn't say that; you said 'some measures in the proposed legislation'.

Rear Adm. Sonter : In hindsight, I probably should have. That's my mistake. But my indication, as I'm talking to you now, is that it's more on a generic basis, where they take the whole proposal and try and sell it.

Senator PATERSON: Right. You go on to say that strategic communications can mitigate this risk. How significant do you think this risk is? How likely do you think it is that this bill will be misused in this way?

Rear Adm. Sonter : Again, we know that people smugglers look at any changes, whether they are real or perceived, and they sell them, so we are constantly strategic messaging to make sure that vulnerable people understand what is right and what is not truthful.

Senator PATERSON: What additional resources will the government give you to assist that strategic communication if this bill passes?

Rear Adm. Sonter : We are in the midst of already getting that additional resourcing in terms of more funding for strategic communications. That's already in process.

Senator PATERSON: How much extra money are you getting?

Rear Adm. Sonter : Generally, we're getting up to in the order of $20 million a year for strategic messaging.

Senator PATERSON: And what was the previous number? What was the increase? What's the change?

Rear Adm. Sonter : In the 2022-23 financial year it was $17.1 million. The baseline is generally $8.5 million per year.

Senator PATERSON: So 2022-23 was $17 million, but obviously this bill hasn't passed yet. It's a future issue. What is the increase in the 2023-24 year or the 2024-25 year?

Rear Adm. Sonter : At the moment we're asking for and we're getting towards looking for the next financial year being in the order of $20 million.

Senator PATERSON: And what about 2023-24? I thought you said 2022-23 was $17 million.

Rear Adm. Sonter : 2022-23 was $17.1 million. We're looking to an increase of $20 million next financial year.

Senator PATERSON: What about this financial year, 2023-24?

Rear Adm. Sonter : I'd have to take that on notice.

Senator PATERSON: Right, but is it similar to the $17 million? Is it lesser or greater?

Rear Adm. Sonter : It would be of a similar magnitude.

Senator PATERSON: Why don't you have that figure if you got the previous financial year and your hopeful for next financial year figure?

Rear Adm. Sonter : Again, I don't have it in front of me. I'd have to take it on notice.

Senator PATERSON: If anyone in the room could assist while we're still going, that would be helpful. What would you spend this money on? What are the kinds of strategic communications you will be doing?

Rear Adm. Sonter : Strategic communications break down effectively into three levels; branded, digital, outreach are the three areas that we look at. We currently strategically communicate over 11 countries in 16 different languages.

Senator PATERSON: What's your evidence about your expected effectiveness of this strategic communications to mitigate this risk you have identified? How likely do you think it is going to be in deterring people from going through with paying a people smuggler and getting on a boat?

Rear Adm. Sonter : Deterrence is always difficult to manage. Obviously, ideally you'd want to measure what you can get through potential irregular immigrants. But how we actually measure at the moment is based on a quantitative and qualitative look at how many people actually click on the messaging, how many people read the messaging. It's quite macro, but it indicates to us that the messaging that we have is quite successful based upon just those numbers.

Senator PATERSON: We have had 13 attempted people smuggling ventures since the election, and we have had three that have made it to the Australian mainland. Do you think that represents successful strategic communications in deterring people?

Rear Adm. Sonter : Well, again, deterrence is always hard to measure. When you look at what is success, success for us is whether we can turn back or if we can take to regional processing. We would argue that we have had some success.

Senator PATERSON: I'm not sure the Australian people would agree that three boats reaching the Australian mainland in five months is success. That's obviously not what you hope or aim to achieve, is it?

Rear Adm. Sonter : It's never what I hope to achieve, but, again, what I hope to achieve in terms of deterrence is that most people understand the regular ways to get to Australia, most people understand the dangers when they take up irregular pathways. Hopefully that deters them from any messaging that we're seeing that people smugglers are selling to them.

Senator PATERSON: So you're not concerned, if someone is banned from applying for any form of visa to come to this country, that they might be persuaded by people smugglers who say, 'Now, your only option to come to Australia is to get on a boat'?

Rear Adm. Sonter : I think aspects of that are a bit of a hypothetical. What we can do is, as we've talked about, we can message and make sure that what is accurate about this is being delivered in that messaging.

Senator PATERSON: It's not that hypothetical, though. It's a provision in the bill, and it's envisaged that the minister could apply it the moment it's passed. It would then not be possible to come on a tourist visa or a student visa or any other visa—you'd understand it's very common for people to apply for those visas, come to Australia and then apply for protection on shore. If that avenue is taken away from them and if they're desperate to come here, why wouldn't they be persuaded by a people smuggler who says, 'This is your only choice now'?

Rear Adm. Sonter : Again, what I can say is we know strategic messaging is effective; we will strategic message. There is no change in risk that we see here. We are constantly addressing lies that we know the people smugglers are telling to vulnerable people.

Senator PATERSON: If there's no change in risk, why do you need increased funding for strategic communications?

Rear Adm. Sonter : To be clear, we actually asked for the increase in funding previous to this—

Senator PATERSON: So it's got nothing to do with this bill, the increase in funding?

Rear Adm. Sonter : The increase in funding is part of what I am overseeing in terms of a balanced and deliberate uptick across all levels of Operation Sovereign Borders to address the threat.

Senator PATERSON: I had understood, based on your previous evidence, that this increased funding was to mitigate any risks that would arise from this bill.

Rear Adm. Sonter : It could be used for that, is what I'd say.

Senator PATERSON: But actually your evidence is: you just applied for this increase in funding anyway—presumably, because it's a desirable tool for you to have.

Rear Adm. Sonter : Again, what I would say is that I asked for this actual increase previously, earlier this year, as part of an uptick across the three pillars of Operation Sovereign Borders.

Senator PATERSON: So there is in fact no extra funding as a result of this bill?

Rear Adm. Sonter : To be clear: no, there is no additional funding for strategic communications affiliated directly with this bill.

Senator PATERSON: In your view, why have three people-smuggling ventures, that we know of, made it through to the Australian mainland without being detected?

Rear Adm. Sonter : Again, it's quite a vast geography that we are trying to protect, as you would appreciate. Just in the north-west alone, in the North West Cape, we are looking at twice the size of Victoria, just for that particular avenue. I have overseen an uptick again in the actual posture there to address that.

Ms Foster : And, Senator, I'm conscious that the chair indicated earlier that witnesses should not be asked to give opinions.

Senator PATERSON: That's not an opinion on a matter of policy; it's just an explanation for an operational outcome, which is obviously, as the rear admiral said, not the objective of OSB. Anyway, I'll move on.

Secretary, there has obviously been very critical evidence given about this bill in the inquiry today. At last check, there were 99 submissions online that the committee had been able to process. Other than that of the Department of Home Affairs, I have not been able to identify one which is supportive of the bill. Is the department considering any amendments or changes to the bill in light of this overwhelming evidence?

Ms Foster : I think it's important to think about the different perspectives that people are bringing to this committee. Obviously, most of the people who have appeared today have appeared in either an advocacy or a similar role. Our job, as the Department of Home Affairs, is to protect the integrity of the migration system. We remain very strongly of the view that this bill is an important measure to take to protect that integrity.

Senator PATERSON: Is that a 'no' to my question—you're not considering any changes to the bill in light of the submissions?

Ms Foster : Obviously, changes to the bill are a matter for parliament—

Senator PATERSON: Or the government.

Ms Foster : or government. Our job is to put forward our advice. We've been very clear about the fact that we think that the absence of a power to enforce someone leaving the country when they no longer have a legal right to be in the country is fundamental to the integrity of our system, and I make no apology for that.

Senator PATERSON: Sure, and I'm sympathetic to that point as well. But that's not really my question. Have you provided any advice to government, or do you intend to provide any advice to government, that amendments are necessary to this bill?

Ms Foster : We are confident in the advice we have put forward about what needs to be done to fix this problem. Obviously, the government may consider the information that has been put forward today, but it's in progress at the moment.

Senator PATERSON: It's not the department's position that changes are necessary to this bill?

Ms Foster : It's not.

Senator PATERSON: Okay. Just finally, before I share the call with my colleague the Deputy Chair, one of the rationales for the designation of a country of removal concern is that it will be a diplomatic tool and hopefully help persuade that country to engage. One of the countries of possible concern is Iran. It's been discussed extensively in this committee today and in other hearings. How likely is it, based on the recent behaviour of the Iranian government, do you think, that they will be persuaded by the threat that Australia might prevent their citizens from applying for visas?

Ms Foster : I think I can only repeat my advice from last time. All of our efforts will be targeted to trying to change the behaviour of the country so we're not accepting involuntary returns. I don't want to prejudice those efforts by speculating about likely outcomes. Our focus is on using the provisions in this bill to get the best possible outcome for Australia.

Senator PATERSON: Sure, but, for the parliament to agree to a power like this, particularly such an extraordinary one exercised by an individual minister, there would have to be a reasonable prospect of success—there would have to be some reason to think that this would be a useful tool and one that's likely to succeed. So what comfort can you give us that it is possible that this would be useful?

Ms Foster : It's hard for me to project forward on a bill that hasn't yet been introduced and that we're not yet implementing. But, if I could perhaps answer in the reverse: not having that power, not having the capacity to negotiate with countries in this instance, doesn't give us an option at all. I'm confident that there will be a range of countries for whom this will be an effective lever.

Senator GHOSH: Thank you to the witnesses for appearing in front of this committee today at the hearing. As I understand it, the purpose of this bill is to improve the integrity of the migration system and ensure that certain aspects that have previously not been addressed will now be addressed. Can I go to you, Rear Admiral Sonter, for a moment in relation to deterrence messaging and people smugglers. The department's submission says that there are measures in the bill that could be used to supplement existing deterrence messaging. Can you elaborate on that.

Rear Adm. Sonter : Sure. As I said before, we are regularly strategic messaging. It's part of a pillar of the OSB model that we regularly address. It gets back to the fact that we do know that people smugglers tell lies and perceive things in certain ways that help their business. So we've found over time that the most effective way is to counter that by using strategic messaging. We look at telling the truth, as I said, across largely 11 countries, in 16 languages.

Senator GHOSH: Are there particular messages or particular aspects of this bill that are being used in that messaging or that will be used in that messaging?

Rear Adm. Sonter : There are no particular aspects of this bill under consideration that we're currently using—obviously because it's before government—but we do use previous related legislation that tells the story about the fact that there is no irregular pathway via a maritime venture to Australian settlement and that importantly tells of the risks and dangers of people that are seeking or looking to travel by boat.

Senator GHOSH: In relation to the power of the minister to issue a direction with respect to cooperation, to assist the removal of individuals, what are the mechanisms that are currently in place to seek or try to obtain that cooperation from individuals who are on a removal pathway?

Ms Jeffery : We have removal officers that work with detainees in each detention centre, and they will meet with them regularly to talk about what their options are, where they've got family and where they've got contacts—that kind of thing—and seek their cooperation to get the travel documents or whatever we need to get them removed from Australia.

Senator GHOSH: Exploring the rationale for the granting of this power, how does the power for the minister to make a direction in relation to cooperation and the related sanction assist in removals?

Ms Foster : At its very simplest, at the moment someone can simply choose not to cooperate. This power would compel them to cooperate or face the consequences of not cooperating.

Senator GHOSH: Of that cohort who, at the moment, are choosing not to cooperate, how large is it?

Ms Foster : Mr Thomas has some statistics for you.

Mr Thomas : In terms of the cohort currently in immigration detention, there are approximately 150 to 200 people that fall into that category.

Senator GHOSH: Who are refusing to cooperate with removal efforts?

Mr Thomas : That's correct.

Senator GHOSH: What proportion of those individuals have been subject to a character-test related refusal or cancellation?

Mr Thomas : Unfortunately, I don't have that number in front of me, but anecdotally I would say it's a fair proportion of that number that are in immigration detention because they've had their visa cancelled.

Senator GHOSH: Forgive me for asking, but what does a 'fair proportion' mean?

Ms Foster : Most.

Mr Thomas : Most, yes.

Senator GHOSH: Is it possible for you to take that on notice?

Mr Thomas : Yes. Can do.

Ms Foster : Just to clarify, the reason we're confident that it's most is because most people in that circ*mstance are there because of a character concern.

Senator GHOSH: Perhaps I can ask this in a more open way—would the cohort of individuals to whom this power would currently apply have otherwise exhausted efforts to remain in Australia?

Ms Foster : The power can only apply to people who are unlawful noncitizens and who have exhausted all avenues to remain in Australia lawfully, so yes.

Senator GHOSH: It that what's meant when it's described as being on a 'removal pathway'?

Ms Foster : That's correct, because until they have exhausted all avenues they are not on a removal pathway.

Senator GHOSH: Do you have any indication, or are you perhaps able to shed some light on, whether you think this measure will be effective in obtaining cooperation from those individuals?

Ms Foster : I'll turn to the experts who work with this cohort.

Mr Thomas : I think yes is the short answer. Of that 150 to 200 group of people, there are individuals who aren't engaging in obtaining a travel document, for example, or identity document. Because they're not engaging in that step to do so, the effect of this would be to direct that action to undertake that step. So, yes, is the short answer.

Senator GHOSH: What proportion of that cohort are subject to Australian protection obligations in relation to their country of citizenship?

Mr Thomas : None.

Senator GHOSH: Turning to the second plank of this bill, which relates to the designation of a country as a 'removal concern country', what's the rationale for the minister's power to designate a country as a removal concern country?

Ms Foster : The rationale is essentially to provide an additional tool to be used in our engagement and negotiations with foreign governments. It would operate in addition to the ways we seek to engage now. Home Affairs has a network of senior staff based overseas whose role is partly to engage with foreign governments on returns. As well as engaging individually, we work with our colleagues in Foreign Affairs, including through, for example, formal dialogues between countries. We also have a range of other tools that help us in that engagement. For example we have programs where, when we identify that the challenge another country is facing is around their technical capability to confirm a person's identity and nationality, there have been examples in the past of us working with them and providing capacity-building funding to strengthen those capabilities so that they can work with us more closely on removals and accepting their nationals back. So this would be one tool that we would use within that broader toolbox.

It would not be intended to be the first step in a discussion where other measures were not successful. I think, as we mentioned at the last hearing, if the bill was to pass, our first step would be to make the existence of the power broadly known. We would then commence discussions with relevant countries, starting at the point of asking, 'What is it that we can do to work with you to enable removals?' The point at which we might get to an actual designation would come much later, after many conversations and, of course, a great deal of advice and assessments had been given to government.

Senator GHOSH: I understand from one of the answers given at the last hearing that there are intermediate steps that are available under the United Kingdom's equivalent of this regime. Would you see utility in those intermediate steps if they were included in this bill?

Ms Cavanagh : I think the UK bill, for example, includes measures such as increasing visa application charges for some countries. Through the work of the migration strategy, we've actually been on a mission to take complexity out of our system. The approach that the UK has taken is one that adds a lot of complexity back into the system, which is why we haven't recommended its inclusion at this stage.

Senator GHOSH: There has been, I think it's fair to say, scepticism expressed in submissions to this committee today about the impact of the potential to designate a country as a removal concern country in affecting the policy settings of those countries, particularly some of the countries that have been identified perhaps as potential designated countries. How likely or how effective in those conversations is this power going to be, or how likely is it to be effective in changing another country's policy settings?

Ms Foster : I think Senator Paterson asked a similar question before. It's very difficult for us to project into a bill that has not yet passed and negotiations that we've not yet undertaken. Suffice to say that we would not have proposed it as a key pillar of the legislation if we were not confident that it would be an effective diplomatic tool.

Ms Cavanagh : I could point to some international experience in this space. The US has had a scheme in place since 1952. There are a couple of recent examples. For example, a designation was issued by the US for Guyana in 2016. That resulted in Guyana changing their approach to removals within two months. Similarly, there was a designation made in respect of Guinea in 2017. Within 12 months, Guinea had changed their approach to removals.

Senator GHOSH: There is a capacity for the minister to designate a country but make a number of carve-outs or exceptions to the scope of that designation. What types of exceptions is the minister able to make, and what is the difference between those types?

Ms Cavanagh : The bill makes clear that there are exemptions for immediate family members of Australian citizens. The bill makes clear that there are exemptions for humanitarian applications. It also makes it clear that the minister can issue another type of exemption for a class of persons or for a range of different visa subclasses. To that last point, I think what I would point out here is that the bill has been designed with all of those options for exemptions to be sufficiently flexible so that it can be used to really be effective in negotiations with countries. By that I mean, as part of the engagement that we would be conducting with a foreign government, one of the questions that we would be asking ourselves, with our colleagues from Foreign Affairs, would be around which visa programs matter most to the foreign government.

The intent of this measure is not to punish Australian citizens or diaspora communities. It's about effecting a change in behaviour of a foreign government. So we would be looking very closely at what visa programs we think matter most to them. In some cases that could be, for example, temporary skilled visas, which might, for example, link to amounts of money being remitted back. It could be international education visas. Without wanting to speculate on how we might design a designation—and it would be very different for every country—we do feel that the measures in the bill can be used so that it is very targeted and focused at what we need to change in the behaviour of a foreign government.

CHAIR: I'm going to share the call, but I will come back to you. Senator Shoebridge, you have the call.

Senator SHOEBRIDGE: Thanks for your attendance. Secretary, as I speak, there are 102 submissions to this bill that have been published, and 101 oppose it. The only submission in support is the submission that your department has put forward. You don't think that you should reflect upon the fact that out of the entire country not a single organisation—not one—is supporting the proposal you are putting forward?

Ms Foster : As I said earlier to Senator Paterson, we are listening to the issues that other groups are raising, but our role is fundamentally different. Our responsibility is to provide advice to the government on how to manage an immigration system that protects the best interests of Australia, and that's what we're doing.

Senator SHOEBRIDGE: Have you heard the evidence today about the diaspora community feeling blindsided, attacked and hijacked by this legislation, with no consultation? Have you heard that evidence? Does that make you reflect upon the conduct of your department?

Ms Foster : We have indeed listened to the evidence today. My team has been watching the process all day. We have reviewed every submission. I return to the basic point that our roles are different. Our job is to ensure that our migration system is robust, has integrity and protects the interests of Australia.

Senator SHOEBRIDGE: Ms Foster, the way your department has gone about this, with no consultation, with no proactive communication—the evidence we've had today is that it's sent ripples of fear across multicultural Australia and deep anxiety that their government may be seeking to permanently break their ties with communities or deport their loved ones and friends. That doesn't make you in any way reflect upon the way this legislation was brought to parliament with agency and inexplicable haste? That doesn't make you reflect at all on that?

Ms Foster : I'm conscious that the government has made a number of statements about its intent in relation to the bill which are aimed at assuaging the concerns of those communities.

Senator SHOEBRIDGE: The concerns of the communities have only heightened since they've had time to read the bill and understand its real legislative impact. That would have been made clear to you from reading the submissions. You say the department has digested the submissions. The submissions make it clear that on a close reading of the bill the community is deeply fearful of the scope of this bill. That's what the submissions say, isn't it?

Ms Foster : Both the presentations today and the submissions raise a number of concerns. We believe that the way in which the bill is structured will allow us to respond to, for example, impacts on communities—the sorts of flexibilities that Ms Cavanagh was outlining before. I'm not diminishing the concerns raised by people. I'm simply saying that I believe the bill has sufficient flexibility in the way in which it can be administered for those concerns to be accommodated.

Senator SHOEBRIDGE: Let's go to your opening statement and see if we can get some light on what you meant. You say it's 'about strengthening the tools available to deal with a relatively small case load of noncitizens'. How many people does this bill potentially cover?

Ms Foster : I'll let Mr Thomas take you through the statistics.

Mr Thomas : In addition to the 150 to 200 people that I noted earlier are currently in immigration detention, there are also a number of people currently in the community on a bridging visa E for departure purposes. That's approximately 1,200 who have been granted a BVE, a bridging visa E, for the purpose of departure from Australia and where the department believes that there may be an issue with their departure if they do not voluntarily engage. I'd note that the composition of the number changes frequently; it's a fluid cohort on bridging visas. That's an approximate number, and it's based on best understanding at the moment. That's the BVE cohort on departure grounds, noting that there are also BVEs granted for other reasons and that the vast majority of BVEs are granted while people are resolving their status resolution purposes.

Senator SHOEBRIDGE: If we could go to the legislation itself, how many people are in the category of 199B(1)(a)? These are unlawful noncitizens required to be removed. How many are in that category?

Ms Sharp : That figure reflects those in immigration detention, so that is 150 to 200.

Senator SHOEBRIDGE: How many are in category 199B(1)(b)—lawful noncitizens who hold a subclass 070 visa? I asked these questions three weeks ago and you had no answers, so I'm assuming you've got the numbers.

Ms Sharp : There are currently 152 BVR holders who have been released as a result of the NZYQ decision. There is another group of BVR holders in the community that pre-existed NZYQ and—

Mr Thomas : That's 99 people.

Senator SHOEBRIDGE: So it's 152 plus 99. How many are in category 199B(1)(c)?

Ms Sharp : That's 4,463 people.

Senator SHOEBRIDGE: That's a lot more than 1,200.

Mr Thomas : To clarify—

Senator SHOEBRIDGE: It's 3½ times more than 1,200.

CHAIR: Senator Shoebridge, the officials are seeking to clarify for you.

Mr Thomas : As at 11 April this year, the 4,463 are people that have been granted a BVE for the purpose of departure from Australia writ large. The 1,200 are the subset of that group with whom the department believes there may be issues for departure if that person does not voluntarily engage. The rest of the cohort are in a group where they could depart or there might be involuntary removal options.

Senator SHOEBRIDGE: So the legislation, as drafted, applies to the better part of 5,000 people, on current numbers. But you say that you've got some sort of—what is it, some sort of administrative intent to apply it to only a subset of that? Is that how I should understand your evidence?

Mr Thomas : The balance of that 4,400 number is people that we don't think we would need to apply it to, because they would either depart or could potentially be involuntarily removed from the country.

Senator SHOEBRIDGE: But you could, couldn't you?

Mr Thomas : Yes, if it was required.

Senator SHOEBRIDGE: If a future immigration minister wanted to, they just could, couldn't they, if this power was given?

Ms Foster : Except, as I said earlier, it's a measure of last resort.

Senator SHOEBRIDGE: Where does it say that, Secretary? Where in the legislation does it say that? Point me to the provision.

Ms Foster : As I said very clearly, if there is an option for us to work with individuals to effect their departure or their removal, we do that as a first option.

Senator SHOEBRIDGE: You say it's a measure of last resort, and I'm going to ask you again: where in the legislation does it make even the slightest reference to that? If the answer is nowhere, just say 'nowhere'.

Ms Foster : It doesn't, in the legislation. What I am saying to you is that there is no need for us to use that if people are departing through our normal measures that we use with them. There is no reason for us to use that.

Senator SHOEBRIDGE: Secretary, to go back to your opening statement, you said, 'Not only will there be a relatively small case load of noncitizens'—and we now understand there are some 5,000 people in the gun—

Ms Foster : Senator, I think—

Senator SHOEBRIDGE: Let me finish my question. You then said that these are noncitizens who have come to the end of the line in their efforts to stay. I ask you again: where in the legislation do you have any support for that statement that you gave to the committee?

Ms Foster : I've just answered that question. I've also demonstrated, by our annual removal numbers, how we typically remove people from the country.

Senator SHOEBRIDGE: But you haven't been given these powers yet. Your department has such a reputation amongst multicultural Australia that 101 of the 102 submissions have opposed giving you anything like this power. You haven't got the powers yet. We're not interested in the past; we're interested in the future. There are no protections at all, are there?

Ms Foster : We will always work with people in the first instance to effect their removal. It's part of the way we have done business for decades.

Senator SHOEBRIDGE: But a future immigration minister may have no such constraints. This legislation puts no such constraints, and it doesn't even have to be about a removal pathway. These directions are pretty much at large, aren't they?

Ms Foster : I don't agree with the way you're characterising them.

Senator SHOEBRIDGE: Tell me what the constraints are.

Ms Foster : The legislation applies to people who are unlawful citizens who no longer have a legal right to remain in Australia.

Senator SHOEBRIDGE: Where does it say that?

Ms Sharp : As Ms Foster has made clear, it doesn't say in the legislation that it's a measure of last resort. However—

Senator SHOEBRIDGE: No. Stop. Ms Foster, you said, 'The legislation'—

CHAIR: Senator Shoebridge—

Senator SHOEBRIDGE: You started your answer with, 'The legislation', and you now find, from your own department, that your answer is incorrect.

CHAIR: Senator Shoebridge, Ms Sharp was seeking to answer your question. Can we just allow that to happen? I don't want to interrupt people.

Senator SHOEBRIDGE: I was asking Ms Foster.

CHAIR: I understand that. If we can allow the officials at the table to answer your questions, then we can get to your next question as quickly as possible.

Ms Sharp : I think your question was going to: what's a safeguard that would limit how broad a direction could be?

Senator SHOEBRIDGE: In the legislation.

Ms Sharp : The legislation will be—the decision to make a direction will be open to judicial review. Should a direction have no relevance to removal, I think it would be open to claims of legal unreasonableness.

Senator SHOEBRIDGE: Where is the requirement to link removal to the direction?

Ms Sharp : I think the reason for the subdivision—

Senator SHOEBRIDGE: Is it the vibe?

Ms Sharp : Section 199A makes pretty clear what the purpose of this subdivision is.

Senator SHOEBRIDGE: So the hope for constraint is that a judge at some point may think that a direction has gone beyond any jurisdictional power? That's the hope. A judge at some point might say that a future immigration minister has gone rogue. That's your protection. Is that right?

Ms Sharp : It's a fairly substantial protection in the migration system. We do see a large number of requests for judicial review, and we have a very substantial body of case law where courts do draw boundaries around ministerial powers in the Migration Act.

Senator SHOEBRIDGE: Is that your rationale, Secretary, for having no legislative constraint? You think a court at some point might restrain a rogue immigration minister. Is that right, Ms Foster?

Ms Foster : I'm not quite following the question.

Senator SHOEBRIDGE: Can you point to any legislative restraint on the direction-giving power, Ms Foster?

Ms Foster : Ms Sharp has just answered that question.

Senator SHOEBRIDGE: She has said that there is none. Is that correct?

Ms Foster : She said that the—I won't verbal her. She can repeat her answer.

Senator SHOEBRIDGE: There is no legislative constraint?

Ms Sharp : Section 199C itself and 199D both contain constraints on how the power is used. I was referring to, in my comments about the availability of judicial review as a further court based—or the way the judicial system will wrap around the legislation and interpret it. I don't think it's reasonable to say, 'There are no constraints on the exercise of power under this bill.'

Senator SHOEBRIDGE: Secretary, the Law Council of Australia raised concerns about coercing people, through the threat of imprisonment, to give their purported consent to documents such as passports or birth certificate applications. Have you had any legal consideration about whether or not the purported consent that somebody gives in the face of these coercive powers would be lawful or binding?

Ms Foster : I'll ask Ms Sharp to augment my answer, but, as we do with all legislation we prepare, we seek legal advice on its legality.

Senator SHOEBRIDGE: Ms Sharp, have you had any advice on whether purported consent given in circ*mstances of coercion like this would be lawfully effective?

Ms Sharp : Consistent with our usual practice, I'm not going to disclose the content of any legal advice received on the bill.

Ms Foster : I'll make a general statement, Senator, that we will get legal advice, not on the content of that advice.

Senator DAVID POco*ck: Thank you for your time this afternoon. Earlier today Senator Scarr pointed out that there seems to be an inconsistency between the department's submission and almost everyone else's. Senator Shoebridge has touched on that. In the last hearing of this committee, I asked if the removal directions aspect of the bill could be used while people have requests for ministerial intervention on foot. I'm keen to confirm that your advice remains that, yes, the removal pathway can happen while that is also happening.

Ms Sharp : Yes, that's correct.

Senator DAVID POco*ck: Could these removal directions be given to people while they have a court matter on foot?

Ms Sharp : Under the Migration Act they can be given when somebody is finally determined, which means that they have no merits review in practice. The department does not attempt to affect the removal of someone while they have judicial review proceedings on foot. The reason we don't is that it would be very easy for the person to obtain an injunction preventing the removal taking place. In effect, no, we would not be issuing a direction while judicial proceedings were on foot.

Senator DAVID POco*ck: What if they are seeking a review of their protection decisions in the Federal Court?

Ms Sharp : The injunction risk would be very significant to the department, and we would not seek to issue a direction while there was a Federal Court matter running.

Senator DAVID POco*ck: You would not seek to do that, or this legislation does not allow that?

Ms Sharp : The bar is the injunction risk as opposed to a hard bar in the Migration Act. But the injunction risk, I should emphasise—risk is almost the wrong word for it. We would be hit with an injunction immediately.

Ms Cavanagh : There is a constraint that is written into the bill that makes it clear that a removal pathway direction cannot be given to a person not to commence, discontinue or not take particular steps in the conduct of court or tribunal proceedings, nor can it require a person to discontinue or withdraw an application.

Senator DAVID POco*ck: Another thing I'm keen to clarify after the two-hour hearing we had during the last sitting week is that the government's Administrative Review Tribunal bills before the parliament abolish the IAA and fast-track processbutthereare still thousands of people who received unfair IAA decisions, many of whom are Canberrans who have been in touch with me. How will the provisions of this bill impact them?

Ms Foster : Senator, could you repeat the last sentence?

Senator DAVID POco*ck: How does this bill affect people who got an adverse finding and weren't found to be genuine under the AAT fast-track process, which the current government said was basically a sham and didn't work? What does this bill mean for those people?

Ms Sharp : The bill doesn't change the outcome of somebody's—if somebody has been finally determined, regardless of which process they were finally determined through, their status is their status. If they've been found to be not owed protection, whether that's through the fast track or otherwise, they are on a removal pathway and we can take steps, if this legislation were to pass, to issue them with a direction.

Senator DAVID POco*ck: The government's—

Ms Cavanagh : Senator, sorry, if we could add to that?

Senator DAVID POco*ck: Yes.

Ms Cavanagh : Our advice to people in that cohort who feel that they have new information they would like to be considered is that they can lodge a request for ministerial intervention. We have publicly available information on our website that provides guidance to people on that.

Ms Foster : We both publish that on our website and provide that advice to people, if they approach us with concerns about the validity of the decision.

Senator DAVID POco*ck: I guess you are in a tight spot, generally, just implementing what the government's doing. But I am rather alarmed that a government that says that fast track didn't work is now giving itself legislation to force people who got a finding under fast track to be removed. And in that legislation, even, as you said, they could seek ministerial intervention, that legislation means that even while they do that they could still be removed. It's massively concerning for people out there who are living in limbo.

I'll move on. The designation of removal concern countries and the associated visa application bars—I'm interested in what this would potentially mean for, say, the Brisbane Olympics. If a country has been designated a removal concern country, would those athletes have to get a special ministerial exemption to travel, to compete in the Olympics, or how does that work?

Ms Cavanagh : I guess I'd point you back to the answer I gave to Senator Ghosh a bit earlier. There is sufficient flexibility in the bill for the designation to be crafted in many different ways. It would be open to the government to provide an exemption for athletes to travel for an Olympic Games, if that was the assessment made.

Senator DAVID POco*ck: They would create a loophole, potentially, for sporting events.

Ms Foster : That is a point we were trying to make earlier. I don't know if you were online. That arm of the bill has been designed to be flexible so that we can target any such arrangement to maximise the outcome that we're seeking, which is to change the behaviour of the country. Clearly, that is the intent of the provision, not to punish Australian citizens, Australian communities, all of those things. Were we to get to a point where we were making such a designation, all of those things would be taken into account in the way that designation was constructed.

Senator DAVID POco*ck: So it's more to punish people in another country for their government's actions.

Ms Foster : It's to try and change the behaviour of the other government, and Ms Sharp will help me out here. It is part of international norms for countries to accept their citizens. Ms Sharp, can you help or Ms Cavanagh?

Ms Cavanagh : It is a long-held tenet of international law that a country is obliged to take back its own citizens.

CHAIR: One more question, Senator Poco*ck.

Senator DAVID POco*ck: The Status Resolution Support Services program was referenced by the Australian Human Rights Commission as something that could be more useful in assisting people to resolve their status and depart Australia where necessary. Are you able to provide any information or data about the rates of return or departures of people with that support since that program has been significantly reduced over 2018-19?

Ms Foster : We provided some statistics more broadly before; perhaps we might start there and then talk about the role of SRSS before I pass to Mr Thomas or Ms Jeffrey, who will take you through that. As I said earlier, we will always work through our established channels with the people who have come to the end of their migration journey in Australia who no longer have a lawful basis to remain, through programs like SRSS or through our other mechanisms of communicating with them about what their options are and how we can assist them to depart.

Senator DAVID POco*ck: Do you have the stats for the SRSS program from 2011-12 to 2018-19, and since 2019 to the present?

Mr Thomas : I don't have that full range of numbers in front of me. I've got the annual SRSS recipient numbers from 2021 to the present.

Ms Foster : We can give that to you, if that's helpful.

Senator DAVID POco*ck: On notice; that'd be great. Thank you very much.

Senator SCARR: Ms Foster, can you understand, given our obligation is to scrutinise legislation and how that legislation—not operational guidelines, not the intention of people sitting in this table, who won't be here whilst this legislation, if it's passed, is enforced for decades to come. Can you understand, when we hear you talk about operational guidance and say, 'It's not our intention; that would be the last resort but it's not in the bill; our practice is that if someone's made an application for judicial review, there is the threat of an injunction so of course we wouldn't use it in that situation', why that doesn't give us the necessary comfort when we're talking about the rights and liberties of Australians and people, extraordinarily vulnerable people, who have come here? It doesn't give us sufficient comfort to hear about things which are outside of the bill when we're dealing with extraordinarily vulnerable people. Can you understand our concerns in that regard and the concerns of all 101 NGOs who have expressed their concerns in that regard?

Ms Foster : As I said earlier, we have reviewed and listened to those concerns. I know that you know this, but just to be clear: we are talking about unlawful noncitizens who no longer have a right to remain in Australia. The measures that are put forward in this bill are measures that we believe would close an important gap in the integrity of our system and allow us to deal with that small cohort of people. In the context of the nine million plus visas that we process each year, the numbers are very small with that small cohort of people who won't cooperate with their removal when there are no further legal options for them.

Senator PATERSON: A number of suggestions have been advanced by various witnesses about not abandoning the bill entirely or removing the powers from the minister but putting some more robust safeguards around it—that two ministers be required to sign it off, that it have a sunset clause, that it have a mandatory review and that it be referred to a parliamentary committee. Of those suggestions, are there any that the department is particularly concerned about that would impede the operation of the bill, or are they suggestions that wouldn't impede the operation of the bill?

Ms Foster : I think we would need to stand back, look at all of the evidence from today, look at all of the evidence that has come forward and provide that advice to government. I think it would be really inappropriate for me to speculate publicly about that before we have gone through that process.

Senator PATERSON: Sure. I do appreciate that. Can I just ask you to reflect on what you can provide to the committee on notice, by way of advice to the committee, because the committee will have to make its own recommendations to government and it would assist us if we knew that this sort of recommendation would be a nonstarter because it would severely impact the operation of the bill or wouldn't have a material impact on the operation of the bill.

Ms Foster : I'll absolutely take that on notice.

Senator PATERSON: Thank you.

CHAIR: I have a quick follow-up question. We had some discussion about this with previous witnesses, so, for clarification, how does the department assess non-refoulement obligations before someone is on a removal pathway? What is that process like?

Ms Foster : I'll turn to my experts to run through that.

Ms Cavanagh : I'll start with primary decision-making. If a person lodges an application for a protection visa in Australia, then they're assessed against the Refugee Convention. There is a fairly senior, experienced delegate of the minister who interviews the person, considers their documented claims that they put forward and comes to an assessment of whether that person is owed protection under the Refugee Convention. There are then opportunities for those people to apply for merits review, currently through the AAT, and, indeed, judicial review through the Federal Court. Noting that there can in some circ*mstances then be a period of time between that decision-making and the removal, I will hand to my colleague who will talk about what then happens at the removal stage.

Ms Jeffery : There is also a pre-removal clearance that we would use as a safety net. That's a final check before someone would be removed that there are no risks of breaching Australia's non-refoulement obligations. If a removal officer had concerns about that, they would refer the case to one of our protection officers within the department, who would undertake that assessment.

CHAIR: That process would apply to an individual where a direction is made under this new legislation. There would be a pre-removal clearance undertaken.

Ms Jeffery : This is the current process, but, yes, we would apply that in cases where people are from high-risk countries, for example, and had a direction issued.

CHAIR: Finally, Rear Admiral, thank you for being here today. You've previously stated that the mission of Operation Sovereign Borders remains the same today as it was in 2013. Is that still the case today?

Rear Adm. Sonter: It's still the same. The mission is to deny an irregular pathway to Australian settlement via maritime means. That has not changed.

CHAIR: You've said before that any alternative narrative can be exploited by criminal people smugglers. Can you just explain to us how a misinterpretation of this bill or even the uncertainty of it in itself could be used by criminal people smugglers to encourage people to risk their lives.

Rear Adm. Sonter: As I said before, we regularly see this risk. That's why strategic communications is a part of our toolbox that we use in OSB. We're regularly messaging to try and counter that message that we know people smugglers use.

CHAIR: I'll just squeeze in one more. Ms Foster, there's been a lot of discussion in the last few months about a certain cohort of people who don't have the right to be here anymore who've had character test fails. They've been described by some members of parliament in pretty colourful terms. 'Hardened criminals' is the way that Mr Peter Dutton referred to them. I'm not going to seek to clarify the cohort in that way, but we're talking about people who have made it difficult for Australia to remove them. Will this legislation and these stronger powers provide a pathway for Australia to remove those people from Australia?

Ms Foster : This bill, if it passes into law, will actually strengthen our system across the board. We've also had questions about the court case that will be heard this week. This is a really important tool for any cohort in Australia that chooses not to cooperate with efforts to effect their departure. I might ask Ms Sharp to add any detail to that, but I don't want to restrict it in particular to any particular cohort. It will help us manage the migration system for any people who choose not to leave.

Ms Sharp : That's right. Regardless of the outcome in the upcoming High Court case, this bill will have a place to operate insofar as it does apply to people who are currently in immigration detention and it applies to BVR holders. What the bill does is ensure there's a consequence for people who aren't cooperating with removal efforts. In the event that the executive's power to hold people in immigration were circ*mscribed further by further court decisions, then the powers in this bill would have an additional role to play.

Senator SHOEBRIDGE: Secretary, twice in your submission you seek to rely upon positions put by the UN High Commissioner for Refugees to support the bill—page 7 and page 14. Is that because you recognise that the UN High Commissioner for Refugees has expertise in this space?

Ms Foster : There are instances, as we've included in the submission, where the position of the UNHCR is consistent with the proposals that we're putting forward.

Senator SHOEBRIDGE: You're not seriously suggesting that the position of the UN High Commissioner for Refugees is consistent with this bill? You're not seriously putting that to the committee, are you?

Ms Foster : That's not what I said. I said that, in the specific instances cited in those two places in the submission, that is consistent with the position of the UNHCR.

Senator SHOEBRIDGE: But you know what the UNHCR have recommended in relation to this bill, don't you, from their submission? You know what their recommendation is, don't you?

Ms Foster : I do.

Senator SHOEBRIDGE: It's to not support the bill. The recommendation is that the committee and the Senate not support the bill because it's in such gross breach of our international obligations. That's their submission, isn't it?

Ms Foster : I think we're talking about two different things. One is the UNHCR's position in relation to the bill; the other is their position on two specific points that we have included in our submission.

Senator SHOEBRIDGE: Your evidence earlier was that the 101 entities that made submissions were all advocacy groups and that somehow you could discount their opinion. The UNHCR, though, is the international expert on this, and their statement is very clear that this bill should not be supported and it's in significant breach of Australia's international obligations. How do you deal with their position?

CHAIR: Ms Foster, I need to adjourn, but I will let you respond to that statement.

Ms Foster : I made the point before about advocacy illustratively to say that I understood that the people appearing today and the submissions were coming from particular perspectives. We as the Department of Home Affairs have an obligation to look at the integrity of our migration system.

CHAIR: Thank you very much. That's all the time we have today. Thank you for your appearance and your assistance. The committee has agreed that answers to questions on notice at this hearing should be returned—I'll seek a motion for 24 April as the return date, which is the day before Anzac Day.

Senator PATERSON: What's our deadline to submit QONs, Chair?

CHAIR: There isn't one, but the sooner you do it, the sooner we'll get an answer back, which will allow our reports to be compiled. I thank all witnesses who have given evidence to the committee today. Thanks also to Broadcasting and the secretariat.

Committee adjourned at 16:00