CHAPTER 3
Key issues relating to the Bill
3.1
The majority of submissions and witnesses supported the Bill and its
objectives.[1]
This chapter discusses the key issues raised during the inquiry, including:
- the need for clarity of the Panel's powers and functions;
- the access the Panel will have to regional processing countries
and the processing facilities in those countries;
- the requirement for the Panel to report to the parliament; and
-
the health expertise requirements for members of the Panel.
Clarity of powers and functions
3.2
One of the specific issues raised in relation to the Bill was
whether the functions and powers of the Panel, as set out in proposed new
subsections 198ABA(4) and (5), are sufficiently clear. Professor Louise Newman,
who is also the former Chair of the Detention Health Advisory Group (DeHAG), argued
that the Bill should be 'much clearer' in terms of the power and terms of
reference for the proposed Panel:
DeHAG...[has] not had any clearly defined capacity to
necessarily enter centres, have access to the sort of data that is very
important to monitor health and mental health outcomes, nor to actually review
any actions that might be taken about recommendations. I think our collective
experience has been that over the years of existence of DeHAG we have made many
recommendations about things that we thought would improve health and mental
health within the centres, but we have had absolutely no mandate to review the
implementation of any of those recommendations. This amendment should be much
clearer in terms of the power and terms of reference of a group to really
oversight in a clear way what recommendations are made, what actions are then
taken and whether they actually lead to improvements in the situation.[2]
3.3
Uniting Justice also commented on the lack of specific monitoring
arrangements in the Bill and argued that these details should be codified in
the legislation.[3]
3.4
The committee received evidence that one aspect of the Panel's
functions, as envisaged in the Bill, would be unnecessary or impractical. Proposed
paragraph 198ABA(5)(c) of the Bill provides that in performing its monitoring
and assessment functions the Panel may 'assess the health of an offshore entry
person when he or she first arrives in a regional processing country'. Dr
Singleton of The Royal Australian College of General Practitioners stated
that she could not see how such assessments would practically work:
I think ensuring that the processes are in place to ensure
that people are being assessed adequately is what is important.[4]
Access to regional processing countries and facilities
3.5
The Department's submission noted that the activities of any Panel in,
or in relation to, a regional processing country 'will necessarily depend on
the consent and agreement of the government of the relevant regional processing
country'.[5]
3.6
At the public hearing, an officer of the Department expanded on this
point:
We are very conscious that in establishing the regional
processing centres that they are established within separate sovereign
countries. Each time anybody, whether it be a staff member of the department or
indeed somebody being transferred to the centre, is seeking permission to enter
the country they need to be granted a visa and they need permission to access a
centre. It is a shared arrangement. The challenge we were presenting to the
committee for it to consider was the coverage of Australian law in relation to
a separate sovereign country.[6]
3.7
However, some witnesses dismissed the issue of access as an obstacle to
the Panel's operation.[7]
For example, Mr David Manne of the Refugee and Immigration Legal Centre argued
that the issues in relation to sovereignty could be addressed through further
negotiation with the Nauruan and Papua New Guinean governments as part of the
transfer arrangement:
The transfer arrangement has already overcome, it appears,
certain issues concerning sovereignty, such as transferring people to Nauru and
setting up tents for people to live in at the moment, and so forth. We would
see it as a necessary extension of the arrangements that have already been
undertaken, rather than overcoming any possibly insurmountable obstacle. Were
that not to be the case we would be confronting a situation where the Australian Government
was expelling people from its shores to another country without being able to
provide for their care.[8]
3.8
Professor Gillian Triggs, President of the Australian Human Rights
Commission (AHRC), expressed the view that sovereignty would not be a barrier
to a statutory panel accessing regional processing centres:
[It] is a matter of international law. Australia is legally
responsible for all international activities over which it has effective
control. That is a very broad statement, but, specifically in relation to
asylum seekers, clearly there is an obligation to assess those claims and to
ensure that basic humanitarian rights are preserved. By transferring people to
an offshore facility, those obligations continue. Certainly they would continue
in the specific instances that are in existence at the moment in Papua New
Guinea and Nauru, where Australia is playing such a strong role in relation to
assisting with legislation, training of those likely to undertake assessment
and so on.[9]
3.9
However, Professor Triggs did indicate a problem would arise if the
Australian Government were to 'determine for itself that it will not
permit the jurisdiction of its agencies to extend to offshore territories, and
the Australian parliament would be more than entitled to pass legislation or to
make clear that point if [it] chose to do so'.[10]
3.10
An officer of the Department sought to equate efforts by the
Australian Government in obtaining access for the Panel with the assistance
it might provide for bodies such as Amnesty International Australia or the Australian Red Cross
in negotiating access:
What we are posing for the committee to consider is how that
might be applied under Australian legislation with a foreign country. For
example, over the last three weeks or so, there have been visits by both the
Australian Red Cross and Amnesty International. Both of those visits required
the consent of the Nauru[an] government. We did not take their agreement for
those visits for granted or lightly. We sought their agreement in the first
instance.[11]
Reporting to the parliament
3.11
A number of witnesses welcomed proposed new subsection 198ABA(6) which
provides for the Panel to report at least once every six months on the health
of offshore entry persons taken to regional processing counties, and to provide
a copy of that report to the Speaker of the House of Representatives and the
President of the Senate.[12]
For example, Professor Triggs noted:
[I]f independent monitors can report publicly on their
findings there will be a significant increase in transparency and
accountability...
[R]eporting to parliament gives an element of independent
oversight by parliament—that is, a direct role within the democratic system. So
I would see that as a very positive improvement.[13]
3.12
Mr Adam Fletcher from the Castan Centre for Human Rights Law argued that
public reporting would make the Panel a more effective body than the
Immigration Health Advisory Group (IHAG):
[W]e see that an independent body which has some sort of
public reporting requirement is likely to be more effective in achieving good
health outcomes than the internal bodies, such as the IHAG – which, we
understand, has not yet been formed – because...the transparency and
accountability of such an independent body which reported publicly would be far
greater.[14]
3.13
Professor Newman spoke of the frustration faced by DeHAG members in
relation to being able to follow up on the implementation of recommendations
that DeHAG made:
We share, I think it is reasonable to say, a common view and frustration
that many of the recommendations we and our professional bodies have made have
not necessarily been implemented, or there have been systemic barriers to
implementation, that the reporting back to us has been inadequate, and that we
are not provided with adequate data to actually make reasonable policy
recommendations. So, part of [both the] challenge and frustration of being an
independent advisory body is, of course, that you can make many recommendations
and give a lot of advice that is not necessarily acted upon.[15]
3.14
Witnesses suggested that, in addition to the Panel providing reports to the
parliament, there should be a requirement for the Minister to respond to the
reports within a mandated timeframe.[16]
Mr Kon Karapanagiotidis OAM of the Asylum Seeker Resource Centre
argued for a response from the Minister within 45 days of the Panel's report
being presented to parliament:
We need statutory obligations on the part of the government
when these recommendations are put forward. We need the government to be bound
to provide a mandated written response within 45 days of this report being
tabled by the panel. We need to ensure we have a panel that has clout,
standing, rights and, most critically[,] independence – so it can call it like
it is, hold the government to account and have binding recommendations, genuine
oversight and resourcing[.][17]
Expertise of the Panel
3.15
The committee received some evidence on the range of expertise of the
Panel, as provided for in proposed subsection 198ABA(3) of the Bill.[18]
For example, Dr Singleton outlined the expertise that key health
organisations consider should be represented on the Panel:
[The] expert panel should include health professionals with
experience in health needs of refugees and asylum seekers, including
professionals with specific expertise in psychiatry, psychology, general
practice, public health, infectious diseases, paediatrics, dentistry and
nursing. Representatives with health expertise from the countries in which the
centres are located should also be involved in an advisory capacity.[19]
3.16
The inclusion of human rights expertise on the Panel was also raised in
some submissions.[20]
In relation to this issue, Professor Triggs stated:
[I]t would be extremely helpful if a member of the commission
had some reasonable competence and understanding of international human rights
law...One of the reasons I would encourage you to make a recommendation in
relation to this is that so frequently we find in our work here at the
commission that we are met with the answer, 'Well, that's not what Australian
domestic law provides.' Our benchmark provisions are international human rights
treaties that may not have been implemented directly into Australian law. With
the scrutiny process that you would be aware of and other increased awareness
of international human rights, it would be very helpful if a commission member
were at least competent in this area.[21]
3.17
The committee also sought the view of witnesses on whether the Panel
should include a representative from a disability organisation. Associate
Professor Amanda Gordon of the Australian Psychological Society suggested
that such expertise is present within a number of organisations – such as The Royal
Australian College of General Practitioners, The Royal Australian and New Zealand
College of Psychiatry, the Australian Psychological Society and the Australian Medical
Association – which would be nominating representatives to the Panel. However,
Associate Professor Gordon did not believe there would be any objection to
including a specific reference to such expertise in the Bill.[22]
Committee view
3.18
In the committee's view, the oversight and monitoring of health services
provided to asylum seekers transferred to regional processing countries is currently
inadequate. Despite this view, however, the committee does not support the
establishment of a panel of health experts as proposed by the Bill as the
appropriate mechanism to address this deficiency.
3.19
Fundamentally, it is not clear to the committee where the Bill's
proposed panel would be administratively and operationally located within the
framework of government or, alternatively, how it is to be funded if it is to
be a body entirely independent from government. In this context, the committee
notes the answer to a question on notice from the Office of the Commonwealth
Ombudsman, which stated:
The Ombudsman is open to further consideration of the
establishment of an independent expert panel located within the Ombudsman's
Office to monitor and evaluate the well-being of asylum seekers sent to
offshore regional processing centres. There are possible benefits to this
proposal depending on its construction...[However, the] independent panel would
require appropriate expertise and may need a legislative power to undertake
inspections in regional processing centres.[23]
3.20
The President of the Australian Human Rights Commission indicated that,
while that organisation would be 'very happy to have the [Panel proposed in the
Bill]...linked in some way with the Human Rights Commission', it lacked the
resources and expertise to support such a panel, and would need a designated
legislative function and associated funding in order to have an operational
role.[24]
3.21
The committee notes the evidence of an officer of the Department that
the Joint Advisory Committee and IHAG will be providing scrutiny of health
services in regional processing countries. Clearly the Joint Advisory Committee
lacks the necessary expertise to perform the specific role envisaged by the
Bill's proposal. Further, it is obvious from the evidence the committee has
received that IHAG, if merely a reincarnation of DeHAG, would not be able to carry
out independent oversight of health services in regional processing countries.
Establishing IHAG as an independent
oversight and monitoring body
3.22
In the committee's view, however, if IHAG is constituted with
appropriate expertise, powers and reporting functions to ensure transparency
and accountability in relation to the work it undertakes, then it would be able
to perform the functions proposed for the Panel. While the committee
appreciates that DeHAG is in a 'transition phase' to IHAG,[25]
IHAG should be made fully operational as soon as possible and as a matter of
urgency.
3.23
In terms of IHAG's remit, the committee has been told that the group
will 'take a broader, more systemic look at health policy and service delivery
across not only the detention environment but also the whole of the immigration
environment' than was the case for DeHAG.[26]
In addition, there appears to be some anticipation within the Department that
IHAG will provide advice in relation to regional processing centres,[27]
but this may not be clear in the current draft of IHAG's terms of reference.[28]
3.24
In addition to clarifying at the most basic level that IHAG will have
responsibility for oversight and monitoring of health services for asylum
seekers in regional processing countries, the evidence to the committee
highlighted the importance of having the powers and functions of an independent
oversight body clearly articulated.
Negotiating access for IHAG in
regional processing countries
3.25
The Department put to the committee that one of the matters in the Bill
requiring further clarification is acknowledgement that access by the expert
health panel would depend on the consent and agreement of the government in the
relevant regional processing country.
3.26
The committee appreciates the matter of sovereignty raised by the
Department, and accepts the evidence that all workers, visitors, and asylum seekers
going to regional processing countries require visas and permission to enter
the processing facilities from the relevant country. However, the committee
also notes that the Department is already expecting that IHAG will request to
visit the regional processing centres and that the Department will 'facilitate'
that access.
IHAG reports to be made public
3.27
In terms of IHAG undertaking a review and monitoring role, the committee
takes seriously the evidence it received of numerous examples of DeHAG, and
other professional health representative organisations, putting recommendations
to the Department that have not been implemented or actioned;[29]
as well as apparent uncertainty as to whether particular recommendations have
been, or are to be, implemented.[30]
There also appears to have been ineffectual feedback and communication in
relation to the implementation of recommendations.[31]
3.28
While the committee appreciates that, at present, IHAG is intended to
have an 'internal' role providing advice to the Department, in the committee's
view the Department should make the reports and recommendations of IHAG publicly
available. In addition, the committee considers that there would be substantial
value in the Minister tabling a response to IHAG's reports and recommendations
within three months. Making IHAG's reports and recommendations publicly
available, and requiring a ministerial response to those reports and
recommendations, will provide transparency and accountability in terms of the
implementation of recommendations by IHAG.
Expertise represented on IHAG
3.29
The evidence that the committee received in relation to the expertise represented
on the expert health panel proposed in the Bill indicates that the expertise on
that panel should be augmented. The committee understands that the membership
of DeHAG covered a much broader cross-section of professional health
organisations, and expects that IHAG would cover a similar cross-section of
health expertise.[32]
However, the committee believes that there would be significant benefit in
appointing to IHAG a specialist representative from a disability organisation.
3.30
As a final point, the committee encourages the Department to consider
whether the Australian Human Rights Commission should be granted observer
status on IHAG in order to address concerns raised during the inquiry in
relation to the need for human rights expertise to be represented.
Recommendation 1
3.31
The committee recommends that the terms of reference for the Immigration
Health Advisory Group (IHAG) should explicitly state that IHAG's role includes
the oversight and monitoring of health services to offshore entry persons in
regional processing countries.
Recommendation 2
3.32
The committee recommends that the terms of reference for IHAG should
include provision for IHAG to:
- access processing facilities in regional processing countries to
conduct monitoring and oversight activities;
- meet with offshore entry persons in processing centres in
regional processing countries (with the consent of those people); and
- review the implementation of recommendations it makes, or other
professional health organisations make, and provide further advice on the
implementation of those recommendations.
Recommendation 3
3.33
The committee recommends that the Department of Immigration and
Citizenship should be required to consult with IHAG on the development and
design of all aspects of the Australian Government's policy to send asylum
seekers to regional processing countries.
Recommendation 4
3.34
The committee recommends that IHAG's terms of reference should include
the requirement that IHAG provide the Minister with a report on its work at
least every six months, and that the Minister make that report publicly
available.
Recommendation 5
3.35
The committee recommends that the Minister table in the parliament a
response to all reports by IHAG, within three months of those reports being
made public.
Recommendation 6
3.36
The committee recommends that the health expertise represented on IHAG
should also include a representative from a disability organisation.
Recommendation 7
3.37
The committee recommends that the Senate should not pass the Bill.
Senator Trish Crossin
Chair
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