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Collins, Sen Jacinta
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Wright, Sen Penny
Brandis, Sen George
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Legal and Constitutional Affairs Legislation Committee
(Senate-Wednesday, 27 May 2015)
Senator JACINTA COLLINS
Senator JACINTA COLLINS
Senator JACINTA COLLINS
Australian Crime Commission
Senator JACINTA COLLINS
Ms C Jones
ACTING CHAIR (Senator Jacinta Collins)
Ms K Jones
ACTING CHAIRMAN (Senator O'Sullivan)
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CHAIR: We had set aside an hour and a half for the Crime Commission, but I caution people not to be too concerned about that. Under the standing orders of the Senate, we continue with every group until such time as all questions are exhausted. But our indicative timetable allows an hour and a half. We thank you for raising with us, Mr Dawson, your difficulty in attending tomorrow. As a result of that, the committee decided to put you on today. It is not beyond the realms of possibility that you could still be here tomorrow, in which case I think the committee resolved—
Senator JACINTA COLLINS: Don't scare him.
CHAIR: that we would not deal with you until after 3 pm tomorrow. If we have not concluded by five tomorrow, the committee has resolved that you will be excused at that time. Hopefully we will be a little speedier than that. But thanks very much for coming along, and welcome. Did you want to make an opening statement at all, Mr Dawson?
Mr Dawson : Thank you. Yes, I will make several comments. I thank the chair and the committee and take the opportunity to place on record my thanks for the support from not only the government but the staff, chair and board of the Australian Crime Commission and for their contribution over the past year. In the past year, the commission has continued its strategy of disrupting, understanding and responding to serious and organised crime threats to the nation. Amongst our activities in the past year, we recently released an unclassified report on crystal methamphetamine, commonly known as ice. I note that since that publication the Prime Minister has implemented a National Ice Taskforce which, as the committee may be aware, is scheduled to report to COAG later this year.
Further activities of the commission are highlighted through strong operational outcomes against serious and organised crime syndicates, including outlaw motorcycle groups, the continuation of a largely international and national money-laundering operation known as Task Force Eligo. That, with our partner agencies, has resulted in over $70 million of currency and more than one tonne of illicit drugs being seized.
I will just quickly highlight further matters in closing. We also recently released an organised crime assessment in a public report that Minister Keenan launched a week or so ago. That focuses on the characteristics of organised crime, including legitimate markets that organised crime have moved into, the impact of technology including cyber and the way that organised criminals and international cybercriminals are using that technology, and the increasing globalisation of organised crime. The assessment of the Crime Commission is that approximately 70 per cent of Australia's national criminal targets of the highest order are connected or have international connections.
We have advanced planning to broaden the ACC's scope internationally by deploying officers in the coming year to Asia, the USA, Canada, Europe and the Middle East. We are doing that in conjunction with the Australian Federal Police and other partners internationally. Of course, as well as those partnerships we have enduring strong relationships with Customs and Border Protection, the tax office, ASIO and ASIC, amongst others.
A focus of the commission since our appearance 12 months ago has been the government's funding of a Foreign Fighters Taskforce for Australia's response to terrorism in Syria and Iraq. The commission's role there is to assist in the intelligence products that are shared with partners and also in particular in the use of coercive examinations for persons who may be of interest to the commission or our partners. That continues on.
In terms of budget, we will no doubt be able to answer questions there, but we are tracking towards a balanced budget and a very small percentage either way is what we are forecasting. With that, I would be ready to receive any questions from the committee.
CHAIR: Thanks very much. The committee has quite a bit of interaction with your commission and its various officers and we are perhaps more conscious than most other Australians of the very, very good work that you guys do in fighting organised crime. On behalf of the parliament, can I again thank you for the work you do.
Mr Dawson : Thank you.
Senator BILYK: Can I just reiterate the chair's comments there. As you know, I am involved in the ACLEI committee and that is another one of those committees that understands the great work you guys do, which, as the chair said, maybe a lot of other people do not recognise. I wanted to talk about the potential merger—or the merger; I do not think it is potential any more, is it?—of the Institute of Criminology and the ACC. Where are the discussions and consultations at the moment?
Mr Dawson : That is a matter that Minister Keenan and the Attorney have before them in terms of a policy consideration, but we certainly have been having discussions with the Australian Institute of Criminology and, in particular, the Criminology Research Advisory Council. So I have personally met with them in anticipation. I would stress that there has not been a decision made yet by government about that, but we have engaged in discussions in order to help inform any government decision.
Senator BILYK: Are you able to tell me, then, what the motivation for the potential merger is?
Mr Dawson : It is a policy matter for government, but certainly there is a very strong alliance with the activities of the AIC. While the government has not made a final decision, a merger was discussed at the most recent law council meeting on Friday, in which the state and territory attorneys and relevant ministers were discussing the matter. There certainly are some correlations with the work that the Crime Commission does for strategic intelligence reports. It is part of our mandate under our act to report on threats of serious crime, and clearly the criminology work that the AIC have been undertaking has some very close parallels. In fact, we have for quite a number of years worked quite closely together on joint reporting. So there is that pre-existing synergy.
Senator BILYK: So there has been exploration of opportunities and weaknesses for the terminology in any such merger happening?
Mr Dawson : The discussions have been going for quite some time, including at the executive and staff levels. Clearly the ministers have been advised accordingly.
Senator BILYK: I do not suppose you are able to tell me, then, if there is any sort of time line, because we are not quite at that stage of implementation yet. Is that correct?
Mr Dawson : It is really a matter for government decision, yes.
Senator BILYK: What effect would it be likely to have in regard to staffing numbers if there were to be a merger?
Mr Dawson : In our discussions, both agencies are working within the efficiency dividends that all agencies are budgeted for. In terms of staffing numbers, the AIC is not a large agency. In fact, it is under 45 FTE and a number of those are non-ongoing contract staff and there is an element of fee-for-service within that. So, consistent with the government's smaller government policy for shared services, there is obvious alignment for a smaller number of corporate services resources. Obviously they do have some distinct work themselves, but given it is such a small agency we do not anticipate any major impact likely there.
Senator BILYK: How many people currently work for the ACC? I think you did tell me this at a meeting a couple of weeks ago, but I cannot remember now.
Mr Dawson : We have of the order of 520.
Mr Williams : Our average staffing level is 533—that is Australian Public Service employees. By the time you add on secondees from state police forces and other agencies, the number sits around 624 FTE.
Senator BILYK: We add that on to the 500? So there is an extra 124 on average?
Mr Dawson : There are some contract staff as well.
Senator BILYK: On notice, can I get a breakdown of the number of contract staff and so on? I assume that secondees come and go a bit—or are they long-term secondees?
Mr Dawson : It depends. Many of them are attached to the commission because of joint task forces. In the case of NPP funding, we will co-opt and get cooperation from Commonwealth, state or territory agencies, including police. The present number of contractors in the Crime Commission, as of 31 March this year, is 20. We also have of the order of 34 secondees on our books.
Senator BILYK: There are 533 public servant FTEs—is that right?
Mr Williams : I will break that number down. At this time we have about 535 Australian Public Service employees. There are 57 task force members, mainly from state police jurisdictions, who are currently working with the Australian Crime Commission around the country on specific operations. There are a further 35 staff who are seconded to the Crime Commission from Commonwealth and state agencies and 13 of our own staff are seconded out of our agency to our partner stakeholders around the country. That is roughly the maths.
Senator BILYK: Has there been any consultation with existing employees within either the ACC or the AIC in regard to potential mergers?
Mr Dawson : Yes, there has.
Senator BILYK: Can you give me some details of those?
Mr Dawson : I personally met with all AIC staff within the past week. I spent several hours discussing matters with their executive and their staff. Similarly, there is a joint executive committee which the Attorney-General's Department's deputy secretary, Katherine Jones, chairs. Both the director of AIC and I regularly attend meetings of that committee to discuss those matters. There is also a joint consultative committee that has met. That is at about a band 1 level. We also have ongoing subgroups in order to do planning in order to inform any government decision that may emerge.
Senator BILYK: Without giving me names, are you able to tell me whether the unions are represented on the joint consultative committee?
Mr Dawson : It is agency representation, so we have consultative discussions with representatives of the CPSU.
Senator BILYK: I do not suppose there has been any early advice or assistance needed yet for existing employees? Is anyone likely to lose their position over this potential merger?
Mr Dawson : There has been no decision at all about that. There is no present indication—
Senator BILYK: It might be more a question for future estimates.
Mr Dawson : Depending on government decisions.
Senator BILYK: When you have talked to the staff, have all staff been able to access those talks?
Mr Dawson : Yes, they were all invited.
Senator BILYK: Are you able to tell me what the current budget of the ACC is?
Mr Dawson : I do not have the exact numbers with me, but it is in the order of $8 million per annum. Part of that is revenue that has been generated on a fee-for-service basis. There is also another amount that is part of a Commonwealth, state and territory shared arrangement for some grants. They are on a pro rata basis depending upon the jurisdictions and they range from in the order of $50,000 from the larger jurisdictions down to $2,000 for the smallest.
Senator BILYK: On notice are you able to give me a breakdown of those areas? When you talk about fee for service—
Mr Moraitis : Do you want the AIC—
Senator BILYK: No, the ACC.
Mr Dawson : We can give ours, but I would not be able to give you the—
Senator BILYK: We have the AIC tomorrow or later today so I will ask them as well.
Mr Williams : In the next financial year, 2015-16, we will have a net appropriation of $88.149 million. That is our net appropriation once you take the inputs and the outputs into account.
Senator BILYK: Mr Dawson, I know in general what fee-for-service means but are you able to tell me what sorts of areas that might be?
Mr Dawson : I interpreted your question to be an AIC matter, so they have fee-for-service arrangements.
Senator BILYK: That is why you said $8 million and Mr Williams said $88 million.
Mr Dawson : Correct.
Senator BILYK: That does clarify that. Are we expecting to see any change to these figures?
Mr Dawson : In terms of our annual appropriation?
Senator BILYK: Yes.
Mr Dawson : No, they are as set out in the PBS.
Senator O'SULLIVAN: Welcome, Mr Dawson. Might I attach myself to the remarks of senators with respect to the good work done by the Australian Crime Commission in somewhat difficult circumstances from time to time. I have a continued interest that I have expressed before in another place. I will set some base questions. When one considers the Australian Crime Commission tracking organised crime, we have spoken before—and I just want to take a reference point again—about what involvement, if any, the Crime Commission has in tracking the exploits of individuals, particularly with behavioural based crimes, roughly referred to as serial offenders, using the base language.
Mr Dawson : Our remit is specifically towards serious and organised crime and the definitions in our act generally accord to two or more persons at a level of sophisticated planning, so individual offenders in a serial type of offending pattern do not necessarily fall within our exact operational area except for where they are part of a sophisticated gang or syndicate. A good example clearly would be outlaw motorcycle groups. We have through the Gangs Intelligence Coordination Centre quite a sophisticated tracking process and that includes secondees from border protection agencies and a whole raft of others. We have a 24-hour-a-day, seven-day-a-week gang intelligence list which is enlivened so that law enforcement around the country can get live tracking of any movement through our data fusion on the movement of outlaw motorcycle gang members or associates. That is one such facility that we provide for law enforcement around the country.
Senator O'SULLIVAN: I want to go across a couple of the agencies and explore your knowledge of them. Obviously I am going to come to a sharp focus on what in my own view is perhaps a weakness in the law enforcement space. Would it be fair to say that, to the extent of your knowledge of CrimTrac, CrimTrac is largely to do with biometrics and a database that records physical and known parameters with respect to offenders?
Mr Dawson : Yes it is. It is very rich data—rich in terms of the data links for the National Police Reference System; we have ongoing discussions and liaison about that, and there is biometric data, through fingerprints and DNA, and several other datasets including the National Child Offender System.
Senator O'SULLIVAN: With the National Child Offender System and the Child Exploitation Tracking System, would it be fair to say they do not accumulate a lot of real-time intelligence about the activities or movements of individuals?
Mr Dawson : It is fair to say it is not a fully optimised intelligence system. It is more an information system.
Senator O'SULLIVAN: Is any agency anywhere in Australia tracking real live-time actual known intelligence with respect to individual offenders, particularly in the field of serial offenders—a good example would be, and we all know this was the famous case of almost 30 years ago, if someone commits a rape in Broome today and there are features, or modus operandi, about that that are quite peculiar and then they commit the same offence in Cairns tomorrow, which is all possible with modern transport, is there anyone bringing that data together at a point so an alarm goes off and we advise the agencies, or at least bring those two relevant agencies together in WA and Queensland?
Mr Dawson : There are myriad different systems around, and they are not all optimised by automatic alluding. The example you use would require, on my present understanding of the systems, unless they are particularly monitored because of unique characteristics or manually uploaded to the Crime Commission's Australian Criminal Intelligence Database—ACID—which all agencies can manually uploaded to, there is no automated system necessarily that would track individual offenders unless officers are particularly galvanised on or targeting an offender.
Senator O'SULLIVAN: Sure—but you are aware, as a professional in this area, that there are other nations that do have this capability?
Mr Dawson : Yes I am.
Senator O'SULLIVAN: Is there any consideration by your agency of looking at introducing something that will be an additional capability to what you do now that might capture this?
Mr Dawson : Yes, there is—in fact, the Crime Commission has been engaging with CrimTrac on this very issue in terms of fusing analytics with the large datasets. That is a matter that I and the CEO and our respective boards, the ACC board and the CrimTrac board, are actively considering. We have pilot projects that we would want to try and further optimise by the merger of both information and intelligence analytics to improve capability.
Senator O'SULLIVAN: If I were an officer, to stay with the example, in Broome in WA and I have just been exposed to an event and I feed that data in in a timely fashion into a database and then 48 hours later an officer in Queensland feeds similar data in, is it your intent that this system will in a very real-time way alert the two agencies—or at least yourselves—of these modus operandi characteristics?
Mr Dawson : That is the clear intent that we are seeking.
Senator O'SULLIVAN: I imagine that this is going to require some support of government. I imagine you do not have a bucket of money under your chair waiting for you to make this decision. Do you have any sense of what resources are required?
Mr Dawson : Yes, we do. We have a National Criminal Intelligence System which has been quite extensively planned for. We have some funding support from the government in this financial year to further develop that. We have engaged contractors and our existing staff in highly developed analytical skills and data mining skills. That has been and is being progressed at both a government and a departmental level.
Senator O'SULLIVAN: Is the database technology that you would use out there on the shelf?
Mr Dawson : There are a number of technologies that are commercial, off-the-shelf products, but again because the national systems do not all interface in an automatic way—and the technology people will talk about data being pushed or pulled—what I described about the Australian Gangs Intelligence Coordination Centre has benefitted from the Crime Commission analysts being able to have the technology to optimise anything live. For instance, if an outlaw motorcycle member even goes through the airport, we have systems built in place so that once they go through the SmartGate, or whatever, that immediately populates such a system within the Crime Commission, and we are able to then disseminate that around the country very quickly—in fact, live. It is not the case with all such crime types. So, in answer to your broader question, that is what we are very much wanting to optimise through the National Criminal Intelligence System.
Senator O'SULLIVAN: When would you anticipate that you will bring a full system online? And will it be you, or will it be more CrimTrac? How does this work? Where will it be housed?
Mr Dawson : The Crime Commission's role is in the intelligence space and in the analytical space. CrimTrac's role is in the data being drawn in from each of the police jurisdictions. That data does not have an analytical interface over it, and that is what is required in terms of CrimTrac information systems interfacing much more readily with the Australian Crime Commission's analytics.
Senator O'SULLIVAN: Thank you for that. Obviously it will be an area that I will have a continued interest in. Quite apart from that, we have had very significant changes in the law in Queensland in relation to motorcycle gangs. I imagine it is something that the Crime Commission has monitored closely. Do you feel confident enough to make a comment on how effective the changes in the legislation have been? Are we at a point where it is measurable?
Mr Dawson : I cannot give you definitive measures, but in a broad response I would state that they have been effective. We obviously have an Australian Crime Commission office in Brisbane and a close relationship to Queensland Police Service and other agencies there, and the Queensland CCC. In that space, we have seen an impact of what are commonly known as VLAD laws, and other Queensland law, which has assisted in interdicting the outlaw motorcycle groups and other gangs in Queensland. It is an area that we obviously monitor because of our spread and our role as well.
Senator O'SULLIVAN: Using a term of my own, has it had any 'waterbed effect'? Have you found a migration of outlaw motorcycle gang members moving interstate and has it been impacting on what you are seeing happening elsewhere?
Mr Dawson : Because each state and territory has some laws that are not entirely consistent—New South Wales, for instance, being on the border, have very good consorting type laws, which have also been successful—it is a case of using whatever tool you can, particularly when they are so mobile. My short response to you is: yes, the Queensland laws have been effective in terms of OMCGs. But there other jurisdictions that have slightly different laws, and we will obviously use whatever stick we can. I might, with your indulgence, invite the acting executive director of operations, who has operational responsibility there, to add any comment.
Mr Gray : Anecdotally, there has been some movement of the groups across borders. We are still looking at that, but the big dividend I guess out of the more in-depth probe that happened in Queensland is the richness of intelligence that we have been able to gather, and that is now with the Australian Gangs Intelligence Coordination Centre. It gives us a much better picture and is helping right across Australia.
Senator O'SULLIVAN: Are we sensing any active consideration by other jurisdictions here, the other states, who have been no doubt monitoring the effectiveness of Queensland's manoeuvres, to look at trying to nationalise, harmonise and bring the good bits into play in other states?
Mr Gray : Obviously that would be a matter for each of the states in their own right, but-
Senator O'SULLIVAN: My question to you is the mood. I mean, you are in the space.
Mr Gray : If one tracks the evolution of laws, I think they have copied off all the good bits for each other as they have gone along. I think they are obviously getting to a point where those discussions are happening quite often.
Senator O'SULLIVAN: With respect to the impact of the consorting aspects of the legislation in Queensland, is there an argument in your mind? Consorting was an offence at one stage in all jurisdictions, but as time went on that aspect of policing was weakened, for pretty solid reasons in some cases, I would imagine. Are you sensing that some of the consorting provisions could be overlaid across other organised crime outside of the motorcycle gangs?
Mr Dawson : Yes, there is. I am aware that in Western Australia there is a specific consorting provision in the Criminal Code for the consorting of paedophiles. So if persons have consistently shared child exploitation material or other crime types, there is an expressed provision within the Western Australian Criminal Code. In the example of New South Wales, a real practical outcome in the last 12 months was that a Rebels national run, as they call them, was very successfully interrupted as soon as they entered into the New South Wales jurisdiction because they had quite progressive and effective consorting laws which, in fact, halted that run.
Senator O'SULLIVAN: Do you have that as a tool yourselves, for example in the drug trafficking space or importation space?
Mr Dawson : We do not have that, no.
Senator O'SULLIVAN: So do you live vicariously through state legislation or do you have a crime code? The burden of my question is: do you have laws that are made for the practice of the Crime Commission?
Mr Dawson : Yes, we do. The act is the subject of a statutory review from 1 July onwards and we will be making submissions regarding some reform of that law. The Crime Commission Act is not a conventional police or criminal code type of statute. It is a mix of both powers for coercive examination and some search warrant powers, but there are no overt arrest stop and search powers that are common—
Senator O'SULLIVAN: That is a power that would not exist in the states in the first instance. You do not have powers. Anyway, my time is up. I am conscious that he gets a big cranky and he has got the flu, so I will conclude.
CHAIR: Thanks, Senator O'Sullivan. We can come back to you later. Senator Lambie.
Senator LAMBIE: It has been alleged the management of Indigenous affairs in Tasmania is corrupt and power is held by a small number of families who look after their own interests. The 2015 Productivity Commission report on government services recognises a total of 19,800 Indigenous Tasmanians for provision of services. The federal government provides funding to the state government based on those figures, yet I have heard a large proportion of that number has not been recognised at a state level due to this alleged corruption. My concern is that a number of people are missing out on much-needed services and this is corroborated by the Australian Crime Commission report of the National Indigenous Intelligence Task Force 2006-14. A redacted version of the report states, 'Financial crimes and exploitation of Indigenous organisations occur in every jurisdiction and are likely to increase with remote communities being particularly vulnerable.' What investigation, if any, are you doing in relation to the alleged management of Indigenous affairs in Tasmania, and is there a link between Indigenous affairs and what is going on in Tasmania and organised crime?
Mr Dawson : I am not aware that the Crime Commission has any specific operations with regard to that Indigenous community group in Tasmania.
Senator LAMBIE: You are not aware of any paperwork that has been put into my office to the Crime Commission in relation to those allegations? Is that what you are telling me, Mr Dawson?
Mr Dawson : Yes.
Senator LAMBIE: We will check up on that then. Moving on to something else: how much organised crime is in Tasmania? Can you please detail the number of organised crime gangs in Tasmania. How much property has been bought by organised crime gangs? Do you believe there should be a national law which deals with organised crime gangs, like the RICO laws they have in America? Please detail the links that organised crime gangs have with terrorist organisations.
Mr Dawson : In terms of known organised crime gangs, they are best represented in Tasmania—I should not say 'best', but they are represented in Tasmania—through a number of outlaw motorcycle groups. As to the exact number, I will ask my colleague if he has that number, but my recall—and I can take that question on notice—is that it is in the order of about six different outlaw motorcycle groups. I would be surprised if there were more than six, but certainly there are a number, including the Rebels. I am not certain about the Bandidos, but certainly some of the larger groups are represented in Tasmania. It is also fair to say that some of the crime syndicates in Tasmania are not necessarily those that are badged up as outlaw motorcycle groups. Each of the states and territories, including Tasmania, supply the Crime Commission with their national criminal targets, which are subject to the risk assessment. We rate them from extreme high downwards. We then apply that matrix—
Senator LAMBIE: Who provides that?
Mr Dawson : Tasmania Police.
Senator LAMBIE: And the Federal Police?
Mr Dawson : The Australian Federal Police are part of that framework as well.
Senator LAMBIE: If the Federal Police have received a report from me in relation to what is alleged to be going on with Indigenous in Tasmania, is there any reason why you would not have seen that report that I have sent in to the Federal Police?
Mr Dawson : It may not have been referred to us, depending on the AFP's operational response to that. To fall within the ACC's act, it has got to be a federally relevant offence, as our act prescribes. Unless the particular law enforcement body, in this case the AFP, wanted to invoke the ACC's powers—they could if it was within the statute. The ACC cannot, of its own volition, simply go out and investigate criminal conduct, unless it is within one of our board determinations. But certainly the Tasmania Police Commissioner and the Australian Federal Police Commissioner, who is our chair, may or may not, depending on the nature of the investigation, whether it would be handled by the AFP themselves or in concert with the ACC or Tasmania Police. But my long answer to you is: I am unaware of whether the AFP have referred the matter you have just referred to within the ACC, unless Mr Gray knows.
Mr Gray : No. I am not aware.
Senator LAMBIE: It bothers me, because federally they are only funding 3,000 Indigenous in Tasmania, when what we are seeing is that there are 19,800. That is a massive gap. That is a lot of federal money that is going down to Tasmania. That is what my problem is.
Mr Dawson : Again, it is a matter that certainly the Australian Federal Police would be better positioned to answer, if it has been referred to them. But I am unaware of the specific investigation you are referring to.
Senator LAMBIE: That is all from me. Thank you.
Senator WRIGHT: Good afternoon. I would like to go back and just ask a few more questions about the proposed merger of the ACC with the Australian Institute of Criminology. I was in transit for some of my colleague Senator Bilyk's questions, so I may be asking questions that have already been asked, but I do not think so. I would like to ask you questions around the merger that relate to the fact that the two bodies have very different functions and very different organisational cultures. I am really interested in what thinking there is about how that will be managed. The AIC is focused on crime prevention and funds and prepares independent research on the impact and causes of crime, on the one hand, and of course the Australian Crime Commission is largely criminal investigation focused, with a range of coercive powers and investigatory powers and an increasingly large intelligence-gathering mandate. So to an outward observer they would seem to be quite different cultures and quite different functions.
My first question may be for the minister or it may be a question or for the ACC. What thinking is there around how the public can be assured that, if this merger were pursued, the full range of work that is currently undertaken by the Australian Institute of Criminology will be able to be undertaken and that there will not be any detraction from its independent capacity to determine its own future work priorities?
Senator Brandis: As you say, no decision has been taken to proceed with the merger at the moment, so I think we are getting a little ahead of ourselves here. However, it is true to say that a merger of the Australian Institute of Criminology into the Australian Crime Commission is under consideration. You are right when you say that they are different institutions, but nevertheless, whenever you merge two bodies with a somewhat similar function into one, then obviously you are bringing together bodies which have heretofore been somewhat similar.
The integration of the agencies would result in a single authoritative voice on crime prevention and justice issues and that could potentially extend the external relationships and influence that both agencies currently enjoy. It would also result in greater use of intelligence to inform a national criminal research agenda which would derive from the release of both classified and unclassified research products. It would also lead to greater use of research to underpin intelligence, particularly strategic intelligence, to inform policy development. The government's thinking is that although the bodies, as you rightly say, are somewhat different, there are obvious complementarities between the roles of the two which would only be strengthened were they merged into one.
Senator WRIGHT: I hear what you are saying there and I can certainly see why this might be under consideration. Given that it is under consideration, then I think it is really important to tease out some of these questions. I am interested in how it would be envisaged in terms of the consideration—how there would be a reconciliation between what, at this stage anyway, is a fairly open, public and transparent environment of the research and the research findings of the AIC and what is often, understandably necessarily, top-secret intelligence work that the ACC does. It would seem that there is inherently going to be some kind of tension there. I am interested in how potential conflicts of interest might be managed—for instance, and just so you understand what I have been asked to think about, the functions and the priorities of the ACC, such as its focus on investigating organised crime on the one hand and the research priorities of the AIC, which may include studies that query the effectiveness of existing legal or administrative organised crime frameworks, potentially even looking at what might critique the work that the ACC is doing. So there may be conflicts of interest. How is it being envisaged that will be managed?
Senator Brandis: As I say, the design features of any merger are some of the things that obviously are taken into consideration if the merger occurs. I do not see the tension that you apprehend. The Australian Crime Commission can produce confidential, secret or top-secret reports and the AIC does not do so. But that is no reason why, were the two entities to be merged, the merged entity could not produce, where appropriate, confidential, secret or top-secret reports, where it was appropriate that they be so classified, and also release publicly reports that did not have a confidentiality requirement. In that regard, might I point out to you, the Australian Crime Commission itself publishes publicly available reports. Mr Dawson has referred me to three: its recent report on organised crime in Australia, its recent report on the Australian methamphetamine market and its 2013-14 illicit drug data report. So just as any agency which produces top-secret product may very commonly also produce product for public digestion, a merged entity could do that as well.
Senator WRIGHT: Yes, but I suppose the concern, as you would understand, is a bit more the other way—that is, perhaps there might be a limiting effect on the capacity of the AIC to publish publicly. If it has a history and no particular reason not to be, as it is at the moment, merging with a body where there may be concerns about public knowledge, then that is one of the legitimate concerns that would need to be considered.
Senator Brandis: I think you are jumping at shadows, if I may say so, particularly given, as I just pointed out, the ACC publishes public reports for public consumption. There is no reason to believe that material of the kind produced publicly by the AIC would not continue to be produced for public consumption were it to be merged into the ACC.
Senator WRIGHT: Thank you. I have two specific questions about the scope of future research, as it might be. Under a merged model, would the AIC be able to continually and independently conduct socio-legal research into specific groups of people's experiences of the Australian criminal justice system?
Mr Dawson : I do not see any difficulty, other than the normal prioritisation process as to what are the most important matters that would come across the existing AIC desk. Equally so, the Australian Crime Commission would apply a very similar approach to what is of greatest priority. Regrettably, crime comes in all forms and I have already had discussions in fact, in anticipation of this same possibility, with the Criminology Research Advisory Council as to how they apply their requests. They are represented at the state and territory level, but of course the Commonwealth itself, being a Commonwealth agency, has its own priorities as well. Often they are the same, and it is a case of which one takes the highest priority.
Senator WRIGHT: The other specific question is: do you envisage that, if the merger went ahead, the AIC would be able to continue to administer the Criminology Research Grants program, which is partly funded by the Australian state and territory governments?
Mr Dawson : Yes, we have had discussions in regard to that. They are quite open, transparent discussions, subject to a government decision as to whether or not a merger would go ahead, but we have progressed planning in order to help to inform the government for a decision.
CHAIR: As there are no more questions for the Australian Crime Commission, thank you very much. We have got you away 24 hours in advance. Thank you all for everything you do and good luck.
CHAIR: We now move on to outcome 1—A just and secure society through the maintenance and improvement of Australia's law and justice framework and its national security and emergency management system—as well as group 1 cross-portfolio general.
Senator JACINTA COLLINS: Chair, this might be a good opportunity to return to the answers to questions on notice issue.
CHAIR: It is your time.
Senator JACINTA COLLINS: I think it is an issue for the committee as a whole. Mr Fredericks was exploring what had happened there.
Senator Brandis: Senator Collins, since you asked those questions this morning, I have some further information for you. This might put this issue into context. In the last round of estimates, during the previous government, in this committee 91.9 per cent of answers to questions on notice were either late or not received at all.
Senator JACINTA COLLINS: I am sorry, Senator Brandis, but before you go on, I am more than happy for you to cover those issues, but the issues we were covering earlier were, at this point in time, at least attempting to clarify what the facts of the matter were.
Senator Brandis: Well, Senator, you made a song and dance about three questions being late.
Senator JACINTA COLLINS: No, it was not about three questions being late.
Senator Brandis: Yes it was, actually, when we drill down.
Senator JACINTA COLLINS: No, it was not.
Senator Brandis: There were three that were signed off last night.
Senator JACINTA COLLINS: No, that was not what it was about.
Senator Brandis: The last time you were responsible for this process, or your party was, in this committee, 91.9 per cent of all questions taken on notice were either received late or not received it all.
Senator JACINTA COLLINS: Chair, a point of order.
CHAIR: One moment, minister. A point of order?
Senator JACINTA COLLINS: My question was to clarify, from the discussion we had earlier this morning, what precisely was the situation that occurred with respect to questions on notice. Senator Brandis is indicating that he believes that there were only three answers that were outstanding, that he cleared, as I think he just said a moment ago, overnight.
Senator Brandis: No. Three outstanding.
Senator JACINTA COLLINS: That is obviously not the case from all committee members here, and I would ask that Mr Fredericks provide us with the explanation of what the facts of the matter are before Senator Brandis then seeks to make his political points about past governments.
CHAIR: I do not think there is a point of order. Are we clear of the eight questions in the arts portfolio?
Senator JACINTA COLLINS: No, I am not clear.
Senator Brandis: There are no questions outstanding in the arts portfolio.
CHAIR: I thought we had worked out that there had been eight or 11 of them answered last night, sent to the secretariat, but the secretariat only got them this morning.
CHAIR: You are not questioning that?
Senator JACINTA COLLINS: No. I am wanting, firstly, that issue to be confirmed. The secretariat has told us this privately.
CHAIR: Well, it is confirmed.
Senator JACINTA COLLINS: I am wanting a cross-portfolio assessment of what has happened with questions on notice, because it is not just the arts questions that I was asking before we got to this stage of the issue.
CHAIR: I just note that we have resolved those. As I understand it, the minister has said already that he has signed off on everything. The question is, I guess, where have they gone after the minister has signed off, from the minister's office to the department office to here. That is what your question is, but there is no point in asking Senator Brandis that. You will need to ask—
Senator JACINTA COLLINS: I was not asking Senator Brandis that. That is my point. Senator Brandis was attempting to make a political statement about the behaviour of past governments, before we even have the facts of the situation.
CHAIR: Perhaps we can come back to your answer to the non-existent question later, Senator Brandis. I accept your point, Senator Brandis: under the previous government—
Senator Brandis: Shocking.
CHAIR: : we used to get the answers three days after the next estimates. But that is not the question being asked here. Perhaps we could start again. Can you ask the question?
Senator Brandis: Given that Senator Collins is being political here, I do hope that I will have the opportunity to put this into context.
Senator JACINTA COLLINS: You are more than welcome to put it into context once we have clarified what the facts are.
CHAIR: We will certainly do that, but not now. What was the question?
Senator JACINTA COLLINS: I will go back one step. From the committee's point of view, I think we are all agreed that we would prefer to receive answers to questions on notice in enough time for us to be able to review them before we are dealing with those portfolios in the committee in the next round of estimates. Is that a reasonable expectation?
CHAIR: Yes, we did discuss that in the committee.
Senator JACINTA COLLINS: That has not occurred on this occasion.
CHAIR: That is okay.
Senator JACINTA COLLINS: I would like to understand what has occurred, where the problems are and how we may be able to remedy that. We had a discussion about just the arts component earlier today, but I would like a better sense of what has occurred, if possible.
CHAIR: We can do that, but factually, I think Senator Brandis said that he had signed off on all of them, some of them quite recently. Over to Mr Moraitis on what happened from there.
Mr Moraitis : This morning we undertook to speak with the secretariat to verify the question and ascertain where the various questions on notice were and at what stages—not just the arts questions but, as you said, Senator Collins, the cross portfolio questions. I have asked Tony Sheehan, who is our CLO, to explore that this morning. He has a series of clarifications for you which perhaps will explain some of the context and the situation.
Mr Sheehan : Just for a small amount of context: from the additional estimates hearing on Tuesday 24 February and then the spillover day that we had on 27 March the portfolio received 151 questions. Some came through the hearing, and then some were submitted in writing, as is the normal practice, up until Wednesday 1 April. We have calculated that of those 151 a total of 128 have been lodged and 23 are outstanding. Of those 23 that are outstanding, it is our understanding that none relate to the arts. So, Senator Brandis's statement about the arts accords with the records in the department that all the arts related questions have been lodged. We expect that those 23 QONs that are outstanding will be finalised in the coming days. There are a small number of them that are back with the department, where we are doing some more work on them.
Senator Collins asked what has occurred in terms of process. The department prepares the answers and in all cases will provide an opportunity for the Attorney or the minister to see those answers before they are lodged. And we do not lodge the answers until we have confirmed that that has occurred, which has been the practice of the department for the time that I have been here, over the past 4½ years or so. So, just to state it again: we have 23 questions on notice outstanding at this point. That is our understanding.
Senator JACINTA COLLINS: My advice from the secretariat was that the first attempt to send this last 71—the most recent batch—was made at 10.30 last night.
Mr Sheehan : That may be. My understanding from staff in the department is that they were sent as quickly as possible yesterday evening, so I could not state exact times. The secretariat presumably will be able to tell you what time particular answers were lodged.
Senator JACINTA COLLINS: I am dealing with this issue now across portfolio, because, despite the minister's assuring me that he had cleared all the arts ones that I had yet been able to see—
Senator Brandis: I have.
Senator JACINTA COLLINS: Well, I accept that, but, Minister, the concern is the 71 that arrived in batch at 10.30 at night—the night before estimates was due to occur. And you said in a relatively cute way that you had cleared them at some point in the past. Am I to understand that you had cleared them close to 10.30 at night, the night before estimates?
Senator Brandis: No. That is incorrect.
Senator JACINTA COLLINS: Well, when did you clear them?
Senator Brandis: The last batch of questions that I cleared, I cleared early on Sunday evening.
Senator JACINTA COLLINS: So, Mr Sheehan, can I get an understanding of why answers that were cleared on Sunday evening took until last night to hit the secretariat?
Mr Sheehan : I will have to take that on notice and find out whether there were further delays in the department. I do not have the details of what happened between when the Attorney cleared them and when they were provided to the secretariat. It is always our intent to make sure they are lodged as quickly as possible. More generally, I have asked that we look at the processes in the department from the time we are aware of what the questions are to see whether we can streamline those process any more. But as for what has happened specifically, I will need to take that on notice and check.
Senator JACINTA COLLINS: Yes, because that is two days in which we would have had an opportunity to review and address further questions in this session.
Senator Brandis: Well, in fairness to Mr Sheehan, I cleared the questions in my office, and I had finished doing that before 7.30 pm on Sunday, so they probably would not have gone to the department until Monday morning.
Senator JACINTA COLLINS: Sure; I understand that.
CHAIR: Do you have any more questions on this?
Senator JACINTA COLLINS: The minister wants to make his political statement about—
CHAIR: As chairman of the parliamentary committee, this is a problem we have had with governments in the past. I agree with Senator Brandis: it was infinitely worse under the previous government than it has been under this one so far but that does not excuse this here. There are occasions, I understand, when the departments simply do not have the resources to do it, in which case I would prefer the department to get back in touch with the committee and say, 'Look, sorry guys; know the problems; know the urgency, but we're just flat out', or whatever other reason. I say to committee members too, there are so many questions put on notice, many of which I suspect are never ever looked at again once the answers come, and I think the committee needs to target its questions on notice better as well.
My admonition is not only to governments past and present to try and respond to parliamentary questions but also to my colleagues to be more judicious about the number and extent of the questions they ask. There is an enormous drain on departments in answering questions that are very often for questions that appear to me to have little relevance. I am quite sure—and I know this—because people come and ask the same questions at the next estimates and they have not even read the answers that are given. I think all of us can improve. Perhaps, now, we would be better served by moving on to questions that we can try and get answers to so that we do not have to put questions on notice.
Senator Brandis: Can I just add something to my previous answer. The last questions that I cleared, which were within the Attorney-General's portfolio and not the ministry of the arts, I cleared at around half past two yesterday afternoon. There were either three or four of those, and they are the very last. Those were ones that I looked at in the early evening of Sunday, but I wanted to take some counsel on them.
I wonder if I might read onto the record what the position was at the equivalent of the estimates committee two years ago. It will not take me long, but this criticism is coming from the Labor Party.
CHAIR: You can, Senator Brandis, but the fact that the previous government was absolutely hopeless in this regard does not excuse this government.
Senator Brandis: No, I am not saying that it does.
CHAIR: Most of us know that the last government was—as I say, we used to get them four or five days after the Senate estimates so it could finish for the next period.
Senator JACINTA COLLINS: Well, we are yet to get to some of ours.
Senator Brandis: That being said, Mr Chairman, I wonder, given the allegations made, if I might give some context. It will not take me long.
CHAIR: Yes, okay.
Senator Brandis: The evidence is that 128 have been lodged and 23 are outstanding. So that is a default rate of 15.2 per cent. The equivalent for this committee two years ago, during the period of the Labor government, was 91.9 per cent of all questions taken on notice were either late or not answered at all. In the Attorney-General's portfolio, it was 54.8 per cent of questions taken on notice; and, in the immigration and citizenship part of this committee's affairs, it was 100 per cent of questions taken on notice.
Now, just quickly, in other committees: 86 per cent of questions taken on notice in community affairs; 89 per cent of questions taken on notice in economics; 83.5 per cent of questions taken on notice in education, employment and workplace relations; 53 per cent of questions taken on notice in finance and public administration; 41.9 per cent of questions taken on notice in foreign affairs, defence and trade; and 99.6 per cent of questions taken on notice in rural and regional affairs and transport were either late or not answered at all. In context, with an average default rate of about 80 per cent, 15.2 per cent on this occasion—although a default is relatively modest. It does not lie in the mouth of those responsible for that shocking default to criticise a much better record of compliance.
CHAIR: Thank you, Senator Brandis. You would not want to model yourself on the record of the previous government with regard to answering. I think you are better than that.
Senator Brandis: Indeed. That is very wise counsel. If you are saying that this government is at least eight times better than the previous government, that would understate this current government's record by comparison to the previous government.
CHAIR: It does. We all know the problem. I know you are busy, Minister, and I know that the department gets snowed under—I have had experience of it myself—but, as I say, there has to be more judicious selection of questions on notice by this committee and the departments' situation might not be so bad. The immigration department valiantly attempted to answer questions during the previous two days without taking any notice, but towards the end the questions just came so thick and fast—in my view they were irrelevant, but that is not for me—that they just had to take them on notice, which meant that, after all their efforts to save their staff the problems of trying to answer these questions, it was to no avail at the end. Be that as it may, I think everyone understands the position. If we can get onto questions that we can get answers to now rather than on notice, that would be good.
Senator JACINTA COLLINS: Mr Moraitis, there were 150 questions from those two sessions of the previous round of estimates. Do you regard that as a burden for the department?
Mr Moraitis : It requires quite a few resources involving not just the department but, in some cases, the cross-portfolio. Having said that, the statistics—I spoke with Mr Sheehan about this over the lunch break—mean that we should think of ways to triage to expedite the process from the department's perspective to try to get through questions as quickly and expeditiously as we can from our perspective, and see what we can do in process terms through the department and through avoiding double-handling or triple-handling or whatever you want to call it. So we will look at ways to improve that rate, if we can.
Senator Brandis: I should say, too, in fairness to the department, that some element of this delay was undoubtedly in my office.
Senator JACINTA COLLINS: Mr Moraitis, I am more trying to clarify whether you are on the verge of a Dr Shergold effort with a trolley.
Mr Moraitis : Dr Shergold effort? I am sorry—
Senator JACINTA COLLINS: This is a piece of Senate estimates history, where Dr Shergold brought into, I think, the education and workplace relations committee a whopping big trolley, briefed the media and said, 'You're burdening us way too much. We can't deal with the weight of all of these questions on notice.'
Mr Moraitis : I could do that, if you like!
Senator JACINTA COLLINS: Are you close to that position?
Mr Moraitis : No, we are not close to that position, but you have placed something in my mind.
Senator JACINTA COLLINS: You remember what I am referring to now?
Senator Brandis: This government is not given to ad misericordiam statements.
Senator JACINTA COLLINS: I am sorry, you will have to translate that for me.
Senator Brandis: 'O, woe is me,' statements.
Mr Moraitis : If I may, the questions vary in scope and size. Some are pro forma questions about how many photocopiers or stuff like that we have, as distinct from nuanced questions of policy that need to be looked at often in a cross-portfolio way. That is just the dynamic of it.
Senator JACINTA COLLINS: And I do not think 150, on the face of it, appears that—
Mr Moraitis : They could be 150 really difficult substantive questions or 150 questions about how many chairs we have in the office and where our office is—that sort of thing.
Senator JACINTA COLLINS: I understand, which is why I asked you the consequent question.
Mr Moraitis : I cannot tell you that. Perhaps Mr Sheehan can—
Mr Sheehan : Part of the issue this time, I think, was that, because we had the spillover day and then the time between when we had all the questions and the due date was a lot lesser, it put a lot more pressure on, but we will do everything that Mr Moraitis has said to try and expedite the process in the department.
Senator JACINTA COLLINS: That is a helpful thing to understand in relation to our new standing orders and some of the potential consequences of those. But the government's election commitment was to 'restore accountability' and 'improve transparency measures', and Senate estimates is one of those key processes.
Senator Brandis: We have to failed to reach perfection, Senator Collins—
Senator JACINTA COLLINS: I understand why you are a tad sensitive—
Senator Brandis: but we are seven times better than you were.
Senator JACINTA COLLINS: With the opinion piece in The Sydney Morning Herald today from three former justices of the Supreme Court, I do understand why you are a bit sensitive.
CHAIR: Do we have questions about the budget?
Senator JACINTA COLLINS: No, I am finished for now.
Proceedings suspended from 15:39 to 16:02
CHAIR: We are dealing with group 1 cross-portfolio general corporate.
Senator WRIGHT: I was going to ask questions in relation to undertaking privacy-impact assessments. I am not sure who would need to be responding to those. Really, it is about the Attorney-General's Department's approach to undertaking privacy-impact assessments in relation to its policy proposals and the development of legislation.
I understand that the office of the Australian Information Commissioner has produced a guide to undertaking PIAs, privacy-impact assessments. This strongly encourages government entities to conduct PIAs 'as a matter of course for projects that involve personal information'. It also says, 'To be effective, a PIA should be an integral part of the project-planning process not an afterthought.' With that in mind, I am interested to know how the Attorney-General's Department determines whether to conduct a PIA in relation to its policy development—so what the criteria and the processes are—particularly with respect to laws and policies that empower government agencies or offices to collect, share and use personal information.
Mr Moraitis : I will ask Mr Walter, who is the relevant assistant secretary, to answer this question.
Mr Walter : In relation to privacy impact assessments, I do not know that there is a set policy for how we go about doing this within the department, but the usual way it happens is: when a policy proposal is being considered by a relevant area in the department they will come to my branch, to my privacy section in particular, to discuss the proposal. Depending on the nature of the proposal and how much impact we think it is likely to have on privacy, we encourage them to go away and do a privacy impact assessment, to consult with the Office of the Australian Information Commissioner as appropriate, and in some circumstances if it is a very large proposal we might recommend to them that they seek external help for that.
Senator WRIGHT: Did you say that other departments will come to you—as well as within Attorney-General's?
Mr Walter : I was talking only about within the department, but it is also true that other departments will come to us at various stages during their policy development processes, and, depending on the nature of the proposal, we might suggest to them to that go and do a privacy impact assessment.
Senator WRIGHT: Thank you. I would like to come to an example of recent legislation. Can I ask what steps the Attorney-General's Department took when determining whether or not to conduct a PIA in relation to the foreign fighters bill that contained provisions that proposed to expand biometric data collection.
Mr Moraitis : I will ask the relevant area that was responsible for that bill to come forward.
Ms K Jones : I think the provisions that you are talking about in relation to the foreign fighters legislation, about the biometric matching, are actually immigration department measures that were included in that legislation.
Senator WRIGHT: Is that different from the measures that would be included in the Migration Amendment (Strengthening Biometrics Integrity) Bill 2015? That is a different piece of legislation. Those are different measures, I understand, aren't they?
Ms K Jones : I am going to defer to my colleague Andrew Rice to see if he can answer that.
Mr Rice : My understanding is that that is a separate measure which the immigration department portfolio is progressing.
Senator WRIGHT: Let's go back to the first one that I mentioned: aspects of the foreign fighters bill, which was the Attorney-General's Department's responsibility. I am interested to know, first of all, whether a PIA was in fact conducted.
Ms Lowe : That particular bill was a whole-of-government effort that captured amendments to a whole range of portfolio legislation. The provisions that you are talking about are matters that are the responsibility of the immigration department and Customs. What we did not do, however, was to conduct a privacy impact assessment on the bill as a whole. Different policy processes were undertaken, depending on which particular provisions were being amended. As to the process that was undertaken by the Department of Immigration and Border Protection, that would be a matter best put to them—about their process of developing their provisions. But there was not a PIA done on the bill as a whole.
Senator WRIGHT: Was there any PIA done on the aspects of the bill that were within the responsibility of the Attorney-General's Department?
Ms Lowe : No.
Senator WRIGHT: It sounds to me like no PIA was started at all, but I would need to confirm that I suppose?
Ms Lowe : I think you would need to confirm that.
Senator WRIGHT: In which case I have missed the boat for these estimates, I think. I might have to ask if that can be taken on notice. Can that be forwarded to them, please?
Ms Lowe : Yes.
Senator WRIGHT: Thank you. What I am hearing is that there was no PIA on the whole bill and there were apparently no steps taken to determine whether there would be a PIA on the whole bill by the Attorney-General's Department?
Ms Lowe : No.
Senator WRIGHT: I guess you are going to say that you cannot tell me what the process was in relation to the more recent Migration Amendment (Strengthening Biometrics Integrity) Bill, because that is under the province of the Department of Immigration and Border Protection?
Ms Lowe : That is entirely their bill—that is right.
Senator WRIGHT: Then I am interested in asking you about the approach that was recommended by this committee, in fact—well, the legislation committee, the Senate Legal and Constitutional Affairs Legislation Committee—when it conducted an inquiry into and reported on the foreign fighters bill. It recommended:
… the Government consult with the Privacy Commissioner and conduct a privacy impact statement prior to proposing any future legislative amendments which would authorise the collection of additional biometric data such as fingerprints and iris scans.
That was a recommendation of this committee. First of all, are you aware of that recommendation?
Ms Lowe : I am certainly aware of that committee's report.
Senator WRIGHT: Yes. And are you aware that there was a recommendation of that nature in the report? Or am I refreshing your memory today? That may be the case!
Ms Lowe : To some extent you are, in that that particular recommendation went to a piece of the legislation for which we are not primarily responsible.
Senator WRIGHT: The recommendation was for the government, not the Attorney-General's Department, so perhaps I can come to the minister in a minute about that. Obviously, the concern that I am raising is that there are serious privacy implications for legislation that is being passed by the parliament. We have the Office of the Information Commissioner recommending that PIAs be conducted and it sounds like there was not even a process to determine whether it was appropriate to conduct a PIA for that legislation. Is that accurate, what I am saying there? Is there anything I have wrong there? There was no process. Mr Walter, are you the person who might be able to respond?
CHAIR: Perhaps I could just speak in relation to this? Oh, I was going to ask if anyone could tell me if the government has responded to the committee's report, but it was a legislation committee report on a bill and no doubt it would have been mentioned in the debate in the parliament at the time. I do not recall exactly what was said—sorry for interrupting, Senator Wright.
Senator WRIGHT: I do not want to put you in a difficult position, but I need to be really clear that there was no process undertaken whereby it was decided that it was appropriate or that it was not appropriate. In a sense, it sounds to me that there was no advertence made to that possibility—is that right?
Ms K Jones : I think that the way we took the recommendation was that it applied to those provisions that were the responsibility of the Department of Immigration and Border Protection. We did not extend it beyond those specific provisions.
Senator WRIGHT: Someone has to take responsibility, though, for being the proponent and having the oversight of the whole bill, even if it has aspects that go across into different departments. Am I right in thinking that? That someone does? That in this case it was the Attorney-General's Department?
Ms K Jones : Yes.
Senator WRIGHT: It concerns me, I suppose, that no-one really then took responsibility for asking, 'What are the overall implications of this bill? They have significant privacy issues for Australian citizens, but we are not going to consider whether to have a privacy impact assessment, as recommended by the person who is well equipped to make recommendations like that—the Australian Information Commissioner.'
CHAIR: Can I just interpose by indicating—and I noticed vague looks on your faces, as there was on mine—that I have just had a look at the majority report, that is, the report of that committee, and it made no such recommendation that Senator Wright is talking about. That is probably why none of you noticed it and, certainly, I was confused myself when I heard Senator Wright's question.
Senator Brandis: I thought Senator Wright said the committee did make that recommendation?
Senator WRIGHT: I did, and I—
CHAIR: Well, it is quite wrong.
Senator WRIGHT: I will then say I will have to go back and check. I had no intention to mislead you. My understanding was that was a majority report, but it may not have been. In that case, I apologise; it may have been a minority recommendation, in which case my questioning would be slightly different. I did not mean to mislead and it might be that my information was a bit ambiguous or not totally accurate. The point about—
CHAIR: The report contained about five recommendations. Apart from recommending the bill be passed, it contained no other recommendations.
Senator WRIGHT: Perhaps if I could—
CHAIR: Five paragraphs, sorry, I should have said.
Senator WRIGHT: If I could come back to the thrust of the question I was finishing up with. It was essentially that we still have a recommendation of the Information Commissioner that PIAs be conducted. It would seem to me that the proponent of the whole bill would have some responsibility—
CHAIR: Senator, this is a very long question. What is the question, actually?
Senator WRIGHT: Chair, if you did not keep interrupting me, I would—
CHAIR: You keep making statements and this is not the place.
Senator WRIGHT: I am not interested in—
CHAIR: Your party is very prone to making statements at estimates. This is for asking questions.
Senator WRIGHT: I am not interested in your belligerence.
CHAIR: What is your question?
Senator WRIGHT: I am not prepared to tolerate it, Chair.
Senator BRANDIS: I think you are reflecting on the chair, Senator.
CHAIR: What is your question? Otherwise I will just rule you out of order.
Senator WRIGHT: I will ask my question if I can have the chance to do so. I asked the question before, and I am going to be clear: the Information Commissioner has recommended—
CHAIR: No. If you do not have other questions, I will pass to others, Senator Wright.
Senator WRIGHT: Chair, people are very aware of the way you are conducting this committee.
CHAIR: Senator Wright, I am not interested in your view on my chairmanship.
Senator WRIGHT: I am interested in fair chairing.
CHAIR: I will chair this properly—which means making sure that committee members ask questions, not make five-minute political statements which do not even contain a question. Now, if you have a question, repeat it, please, and the officer will answer it. Otherwise we will move on to another senator.
Senator WRIGHT: What is your understanding of who has responsibility to determine, in relation to a piece of legislation, whether a PIA should be conducted or not?
Ms K Jones : Broadly, in terms of any recommendations that come out of parliamentary committee inquiries—
Senator WRIGHT: I am not talking about a parliamentary committee. I need to be very clear: I am talking the Information Commissioner guidelines.
Ms K Jones : It would be a matter for the lead agency to be consulting on. If another department had responsibility for the relevant provisions, in the general course of consultation that would be a matter of discussion. But in terms of specific responsibility for directing or taking up Office of the Australian Information Commissioner recommendations, it is ultimately a matter for the department to which it is directed.
Senator WRIGHT: So, in this case, was that general discussion had by the Attorney-General's Department with the immigration department?
Ms K Jones : I need to take that on notice. In the course of developing the legislation and going through the parliamentary inquiries, working with the Office of the Australian Information Commissioner, we engaged with a whole range of relevant agencies. I would need to take that on notice for you.
Senator WRIGHT: And what the process was, if there was any process. Thank you. Those are my questions, thank you.
Senator LAMBIE: I just want to make sure nobody else has any questions. Mine is about the institutional response to child sexual abuse. I just want to make sure I am not skipping the line, if other people have questions on what we are already talking about.
CHAIR: No. This is group 1, and royal commissions are part of that, so you are quite entitled to deal with that now.
Senator LAMBIE: Thank you. Attorney-General, I was just wondering if you could detail the communications you have had with the people and the staff running the DART?
Senator Brandis: The DART? The Defence Abuse Review Taskforce?
Senator LAMBIE: That is the one.
Senator Brandis: Bear with me a moment, Senator.
CHAIR: I am sorry, Senator Lambie, for misleading you but I, like most people, am confused by the departments. Program 1.9, which is royal commissions like the royal commission into the insulation program and the royal commission on institutional responses to child sex is in group 1, but—and do not ask me why, I can never understand it—the Royal Commission into Trade Union Governance and Corruption and also the Defence Abuse Response Taskforce are in group 2, another group. I am sorry, this is not the right area; I misled you. If you would not mind leaving that until we move onto group 2.
Senator LAMBIE: I am sorry. Are you talking about group 2?
Senator Brandis: If it helps—sorry to jump in, Chair—I can respond to Senator Lambie quite briefly in a way that I think will probably foreshorten this.
CHAIR: Alright. Let's do that.
Senator Brandis: Senator Lambie, the Defence Abuse Response Taskforce is an inquiry which is under the auspices of the Department of Defence, not the Attorney-General's. As Mr Fredericks can elaborate if you want to press him about it, the Attorney-General's department provides some administrative support to that particular task force, but in terms of outcomes or findings and policy responses and so on, that is a matter to be pursued with the Department of Defence, which you are free to do in their estimates next week. If you want to ask about administrative issues you could ask about them here, but it follows—coming directly to your question—that because this is a Department of Defence issue, there is no reason why I would have had any communication other than to meet the chair of the commission, which I have done a couple of times. But beyond that I have not had any communication with him.
Senator LAMBIE: Attorney-General, if there is a royal commission to be decided, are you not part of deciding that royal commission?
Senator Brandis: It is not a royal commission, it is a task force.
Senator LAMBIE: It is a task force that is coming up with recommendations on a royal commission. What part will you play in that royal commission?
Senator Brandis: That is a different question. It is a task force, it is not a royal commission. If there is a recommendation that there should be a royal commission, then royal commissions are a matter for the Attorney-General's department to constitute. But just like the royal commission into trade union governance and corruption, the topic of the royal commission may have little or nothing to do with the Attorney-General's department. My department is responsible for constituting the royal commission under the Royal Commissions Act. What we did with the home insulation program royal commission and the trade union royal commission is that I and the relevant minister—respectively in the HIP royal commission, Mr Hunt and Mr MacFarlane and in relation to the trade union royal commission, Senator Abetz—would jointly take a submission to the cabinet. It would be constituted. The Royal Commissions Act is administered by the Attorney-General's department, but unless it relates to an area of policy or governance within the jurisdiction of the Attorney-General's department, our only role is to constitute the royal commission and, depending on what cabinet decides, also to pay for it.
Senator LAMBIE: Has the royal commission into child abuse been given access to the secret report of the DLA Piper volume 2, which details in thousands and thousands of pages the most horrific abuse and assault in our military? Surely that is your area. Has that report been passed over to that royal commission that is currently going on?
Senator Brandis: Sorry, are you talking about the defence abuse task force or the child sexual abuse royal commission?
Senator LAMBIE: I am talking about the child sex royal commission. Has that child sex royal commission—the institutional one that is currently going on—received a full copy of the DLA Piper volume 2?
Mr Fredericks : I think I can assist on this matter. That particular royal commission is independent of government and so, at the end of the day, the question as to whether a particular document has been received by the royal commission is not one that would be known to the minister or known to this department.
Senator LAMBIE: Attorney-General, have you read through every page of the DLA Piper volume 2? Have you sighted it?
Senator Brandis: No.
Senator LAMBIE: Would it not be in the best interests of the government to pass those over? I have read that, and I know that there are children that are involved in that. That is what I am asking you. Are we missing a connection here? I would have thought that was extremely important to be passed over to that royal commission.
Senator Brandis: This royal commission is still ongoing. It has produced a series of interim findings which have been received by the government, but the government is not provided as a matter of course with evidence that is provided to the royal commission, because a royal commission is completely independent of government. If the document to which you are referring, which obviously somebody has shown you, was provided to the royal commission and admitted by it into evidence as a confidential document, not only would I not see it but I should not see it; nor should any minister, unless the royal commissioner refers it to the government. That has not happened, to the best of my knowledge.
Mr Fredericks : Correct.
Senator LAMBIE: So you do not believe, as the Attorney-General of this country, that it is your responsibility to make sure that DLA Piper volume 2—in full, the whole 42 volumes of dirty secrets—goes right across to that royal commission on institutional child abuse?
Senator Brandis: It is my responsibility as the Attorney-General to make sure that I do not do anything to interfere with the proper and lawful conduct by a royal commissioner of a royal commission. As I understand you to be saying, this royal commission has received into evidence, and marked as confidential, a particular report. It would be improper and perhaps illegal for me or any minister to interfere with the conduct of the royal commission. If the royal commissioner refers the matter to me or the government, that is a different matter. But, as we have heard, that has not happened yet. I have no jurisdiction, no authority and no right to instruct the royal commission to provide something to me that they have not chosen to provide to me and have in fact received as a confidential piece of evidence.
Senator LAMBIE: There are criminal offences in there.
Senator Brandis: There may be.
Senator LAMBIE: There are sexual criminal offences against children in there and you do not believe it is part of your job to make sure that is passed over?
Senator Brandis: I do not have it. As I understand from you, it was given to the royal commission. It has not been given by the royal commission to the government.
Senator LAMBIE: Obviously you have not seen the documents. There is no point asking you any more questions.
Senator Brandis: That is why I thought this answer might foreshorten your questions. I am not for a moment saying—
Senator LAMBIE: There are sexual predators on the loose and some of them are still serving—and they are responsible for this child abuse.
Senator Brandis: Look, Senator Lambie—
Senator LAMBIE: They are sitting in limbo.
Senator Brandis: The reason the government, when we were in opposition, supported the then Labor government in establishing this royal commission—in fact we called for the royal commission before the previous government decided to establish it, so this is a bipartisan exercise—is that we regard this problem as a deeply serious national priority. We wanted it examined in a painstaking way and the best way to ensure that was to have it done by a royal commission. That royal commission is ongoing. It is the longest royal commission in Australian history. It is the most comprehensive royal commission in Australian history. There are six royal commissioners led by Justice McClellan. By the time the royal commission reports, the Commonwealth will have funded its operation to the tune of about half a billion dollars. This is a major forensic fact-finding exercise of the greatest importance. The last thing the government would, could or should do is interfere with it while it goes about its business.
Senator LAMBIE: So the military, and its dirty little secrets, has an exemption to that.
Senator Brandis: That is not what I said at all.
Senator LAMBIE: I just want to know how those documents are going to get from point A to point B—to that royal commission that is going on at the moment.
Senator Brandis: The answer is that the royal commission will report to government. It has delivered a series of interim reports. It will deliver a final report. It may deliver a confidential report in its final report, as is very common with royal commissions. What the royal commissioner, or the chair of the royal commission in consultation with the other royal commissioners, chooses to pass to government—or to pass to the police or to pass to the Commonwealth Director of Public Prosecutions or to pass to state prosecutors and state police—is a matter for it, not for the government.
Mr Fredericks : I will just add that it is a fundamental principle of royal commissions and the conduct of royal commissions that a royal commission decides how to inform itself, what evidence to receive and how to receive that evidence. It is entirely a matter for the independent decision of the independent royal commissioner.
Senator Brandis: There are actually provisions in the Royal Commissions Act about contempt of a royal commission which are somewhat similar to the provisions in the general law about contempt of court. For me to interfere with the operation and conduct of the commission would probably be a contempt of the royal commission, which would actually be a crime.
Senator LAMBIE: Attorney-General, the royal commission into child abuse held hearings which examined child abuse in different religious organisations and community groups, which we are all aware of. Why has the royal commission into child abuse refused to hold hearings and hear evidence from victims who have been assaulted while they were members of the military?
Senator Brandis: I do not know that that is right. But even if that were the case—and I am not accepting that it is—that is not a question I can answer. It is for the royal commissioner to interpret their obligations in accordance with two things: the letters patent, which constitute the royal commission and which can be amended from time to time; and the Royal Commissions Act, and that is it. What I am trying to convey to you is that royal commissions are absolutely independent of government. They are as independent of government as courts are. In a sense, they are even more independent because although courts have settled processes for the hearing of causes before them, royal commissions can go about the investigation of the matters in their letters patent subject only to the Royal Commissions Act in any manner they choose.
Senator LAMBIE: If the children's royal commission fails to hold a special hearing into child sex abuse in the ADF, will you then support a royal commission into Defence abuse which has broad enough terms of reference to include sexual abuse of children in the military?
CHAIR: I do not know that that is a question for this estimates committee.
Senator LAMBIE: Somebody has to make a decision on it, and I have got victims out there.
CHAIR: There are procedures of the parliament and all I am saying is that you are asking questions that, I think, are beyond the realm of this committee.
Senator LAMBIE: And I think the Attorney-General is under fire and he needs to answer that question. I have victims out there that want that.
CHAIR: The Attorney-General is not under fire and he does not need to answer anything that is not relevant to this committee, but he may choose to do so.
Senator Brandis: Chair, it may assist if I say that I am not aware that the royal commission has refused to examine this matter. I would need to check the terms of the letters patent to see whether in fact the letters patent would even extend to the subject to which you are referring. But, in any event, what the government will do and should do is examine the final report of the royal commission when that report is received.
Senator LAMBIE: I just have one more question for you. Yesterday the Prime Minister's department confirmed that a confidential secret report from the Heyden royal commission detailing a grave threat to the power and authority of the Australian state had been received by the Prime Minister's department. When I asked you at the last sitting of the Senate if that report had been received by the Prime Minister or yourself, you avoided the question and covered that up. So I would just like to know why.
Senator Brandis: I have not avoided any questions. I have not covered anything up. The fact is you asked me about a confidential interim volume of the Heyden royal commission's report. We are now talking about a completely different one, the one into trade union governance and corruption. What I told you in the Senate and what I will tell you again is that it would not, for obvious reasons, be appropriate for me to publicly disclose a volume which has been provided by the royal commissioner to the government as a confidential volume.
Senator LAMBIE: Do you know why I just put that in with defence abuse? Because obviously we were given certain time to go and look at those DLL Vol. IIs under secret and see what was in those volumes, the 40 plus dirty little secrets of massive volumes. So my question to you is: why can you not do the same and release the Heyden report that was released to the Prime Minister and cabinet before Christmas to the crossbenchers? If you can do it for those people who have been sexually abused and those kids and we can look at that, what is holding you back from us having have a look at that Heyden report that was produced to you before Christmas?
Senator Brandis: Because we are bound by the terms on which the royal commissioner provided the confidential volume to the government.
Senator LAMBIE: So if the royal commissioner now says it is okay under the terms for the DLL piper Vol. II to be seen by the people on the committee, would you allow that to happen with the Heyden report?
Senator Brandis: I do not think I can answer that question in the abstract. What I am saying to you is that royal commissioners quite commonly provide either final or interim reports, which are, at least in part, kept confidential. The terms on which those are provided to the government are determined by the letter of transmittal from the royal commissioner to the government. I cannot answer your question because I cannot immediately call to mind the terms of the letter on which royal commission Heyden provided that material to the government.
Senator LAMBIE: Have you ever seen the report?
CHAIR: Your time has finished. We can come back to you if you want to pursue that further if it is relevant to this estimates committee.
CHAIR: Senator Xenophon, are you wanting to ask questions?
Senator XENOPHON: I can are some questions supplementary to Senator Lambie's on notice in relation to the royal commission.
CHAIR: In relation to which one?
Senator XENOPHON: In relation to Senator Lambie's line of questioning, I will put them on notice.
CHAIR: I understood from the minister that these questions are not relevant to this committee. I do not know what your questions are.
Senator XENOPHON: I am happy to put them on notice. And a decision can then be made as to whether or not they are relevant.
CHAIR: You can put them on notice here, I guess, and if they are not relevant here Mr Moraitis will forward them on to the relevant estimates committee for you.
Senator BILYK: I did put on notice a number of questions about the engagement and remuneration of Commissioner Hayden, counsel assisting and solicitors for the royal commission. Some of the answers, I have to say, were not that helpful so I have got some other questions. I did ask previously about Mr Hayden's pay and was told in a response that this information is commercial-in-confidence—you know, some sort of state secret. Can I at least find out how he is paid? Is he paid personally or through a company or a trust structure?
Senator Brandis: Mr Heyden is a barrister, and I am sure he would be paid directly because he is a professional person. He does not carry on his practice as a barrister through a corporation if that is what you mean.
CHAIR: Are you sure?
Senator Brandis: I would be reasonably sure of that.
Ms Innes-Brown : The commissioner is actually a salaried employee and is paid on a casual basis through the payroll through the Attorney-General's Department.
Senator BILYK: Through the Attorney-General's Department?
Ms Innes-Brown : Yes.
CHAIR: How come it is confidential if he is a salaried employee?
Senator Brandis: I think when Ms Brown says 'a salaried employee', that is way the public service treats it. I would think of the payment as a fee, myself. But, nevertheless, he is paid at professional fee-for-service, which is obviously treated for accounting purposes as a salary.
Senator BILYK: Can I get some confirmation as to whether it is commercial-in-confidence?
Senator Brandis: We said that to you in our answer.
Senator BILYK: You did but you did not give me an explanation of why it was commercial-in-confidence.
Senator Brandis: That was because I was not required to.
Senator BILYK: I am asking you now to take that on notice.
Senator Brandis: I took it on notice last time and that was the answer you got. I can explain to you the general principles. The Attorney-General's Department has taken a view for some time now that the fees paid to individual lawyers, whether solicitors or barristers, carrying out legal work on behalf of the Commonwealth are not individually disclosed because they are treated as commercial-in-confidence matters.
Senator BILYK: But you cannot just say they are commercial-in-confidence. There has got to be an explanation as to why they are commercial-in-confidence. Is that your answer?
Senator Brandis: Because they represent a payment made by the Commonwealth to an individual practitioner or, in the case of a law firm, to that firm for carrying out professional services. So they stand on a similar footing to other commercial contracts. In this case, although for technical reasons I will not go into, a fee paid to a barrister is not a contract for personal services. For the sake of estimates, it will be good enough for you to think of it in terms of being alike to a contract for personal services.
Senator LAMBIE: Would it not be in the public interest to know that?
Senator BILYK: I am wondering if the minister is making a public interest immunity claim?
Senator Brandis: No I am not. Commercial-in-confidence and public interest immunity are entirely different bases for non-disclosure.
Senator BILYK: You talked about the department's practice but to me practice is irrelevant. I want to know what the proper procedure is, not what the practice might be.
Senator Brandis: The procedure is, when these questions are asked, to say that they cannot be answered for reasons of commercial-in-confidence.
Senator BILYK: So it is a state secret?
Senator Brandis: That is not a term of art. It is something that the Australian government does not publish.
Senator BILYK: I know you will not disclose the actual amount he is paid but can you provide me some insight into how his remuneration is calculated. Is it a daily sitting fee? Is he receiving an annual salary?
Senator Brandis: Yes, I can. Mr Hayden is paid an hourly fee up to six hours a day and if, as is usually the case, he works for more than six hours on a given day, he is paid a daily fee. So if, for example, Mr Hayden were to work for 12 hours on a given day, which I am sure he commonly does, he would not be paid 12 times the hourly fee, he would be paid the daily fee.
Senator BILYK: So up to six hours a day, it is an hourly fee and after that it is a daily fee?
Senator Brandis: That is right.
Senator BILYK: So if it is six hours and five minutes—
Senator Brandis: I suppose it follows from what I said that it would be a daily fee.
Senator BILYK: How was that figure arrived at?
Senator Brandis: It is arrived at by multiplying the hourly fee by the number of hours up to six hours and then, if it is more than six hours, by paying the daily fee.
Senator BILYK: Sorry, can you just repeat that.
Senator Brandis: It is arrived at by multiplying the hourly fee by the number of hours if it is up to six hours. And the number of hours multiplied by the hourly fee gives you the fee. But if it is more than six hours, it is the daily fee.
Senator BILYK: No, but how was the hourly fee arrived at?
Senator Brandis: By negotiation with Mr Hayden.
Senator BILYK: So was it in accordance with an established scale relied upon by the Commonwealth to remunerate royal commissioners?
Senator Brandis: It was arrived at in accordance with the appropriate procedures adopted by the Commonwealth for the remuneration of counsel, yes.
Senator BILYK: But I cannot find out those procedures. Is it consistent then with, say, that of the commissioner presiding over the royal commission into institution responses to child sexual abuse?
Senator Brandis: There are six of them and they are remunerated, I think, on a somewhat different basis. Do not hold me to this. I will have it checked but my understanding was that each of them is paid the equivalent salary of a Federal Court judge.
Senator BILYK: So is his payment consistent with commissioners presiding over previous commissions of inquiry for the Commonwealth?
Senator Brandis: Whose payment?
Senator BILYK: Mr Hayden's.
Senator Brandis: I would need to check. Certainly the principles on which he is remunerated are consistent. Whether previous royal commissioners were paid the same fee or a higher fee or a lower fee, I would have to check.
Senator BILYK: Does he have any support staff?
Senator Brandis: Yes he does. I will ask Ms Innes-Brown to respond to that. She knows about it.
Ms Innes-Brown : Support staff? He has a PA—
Senator BILYK: Sorry, does Mr Heydon employ the support staff?
Ms Innes-Brown : No, she is also part of Attorney-General's on a non-going contract. She gets paid through the Attorney-General's Department and she is on a non-ongoing contract to the end of the life of the commission.
Senator BILYK: Okay. Did you have anything else to add to that?
Ms Innes-Brown : That is the only staff he has working directly for him.
Senator BILYK: With regard to counsel assisting, Mr Stoljar, how was his remuneration calculated? Is he, once again, paid a daily hearing fee or an hourly rate up to six hours?
Senator Brandis: On the same basis; hourly up to six hours a day and after that a daily fee.
Senator BILYK: You did not really tell me how that was arrived at, except in negotiations, I presume, with Mr Stoljar?
Senator Brandis: I can tell you that it was arrived at in negotiation, yes.
Senator BILYK: With Mr Stoljar?
Senator Brandis: Yes.
Senator BILYK: Once again, is that consistent with counsel assisting the royal commission into child abuse—his fee?
Senator Brandis: We do not know, do we? I am sorry, I am told that, yes, it is—at least the principle is.
Senator BILYK: The principle is?
Senator Brandis: Whether it is the same fee I would not be able to tell you.
Senator BILYK: What is the principle then? You keep telling me 'the principle is'.
Senator Brandis: The principle is fair remuneration for the professional service provided by the particular barrister concerned. It is ordinarily the case that the Commonwealth pays a bit below the market rate. Certainly when I was engaged by the Commonwealth in my former career as a barrister it was usually at a fee less than the ordinary market rate, but one does this work for the Commonwealth because one should.
Mr Moraitis : I would add that there is also a legal services direction which we follow in these circumstances—Mr Minogue can explain how that works—so there is that basis.
Mr Minogue : As the Attorney says, the engagement of commissioners and counsel assisting follow the principles for the engagement of counsel for legal work by the Commonwealth. That is governed by the legal services direction, which is an instrument issued by the Attorney-General under the Judiciary Act. It is in those directions the reason for the six hourly fee being the maximum, then you flick over to a daily rate, and that is all consistent with the directions governing the engagement of external barristers.
Senator BILYK: Even so, Mr Heydon was able to negotiate his own fee.
Senator Brandis: You are at cross-purposes, Senator Bilyk. What Mr Minogue has explained is the way in which remuneration is structured. The actual fee—that is, the quantum rather than the formula—will vary depending on who the particular barrister is.
Senator BILYK: I just want to be clear though. You did say that his fee was in discussion with him, for Mr Heydon.
Senator Brandis: Mr Heydon indicated a particular fee and there was a conversation and a particular fee was agreed to.
Senator BILYK: With regard to Mr Stoljar, AusTender says he is being paid $3.4 million. Do you think that is below the market rate? What would the market rate look like?
Senator Brandis: It will depend. The fee a barrister commands in the market is really a function of their seniority and reputation. I have not seen the AusTender document that you refer to, and I do not know over what period—
Senator BILYK: It was published on 20 January 2015.
Senator Brandis: I do not know over what period that figure is arrived at, so I am not really in a position to comment.
Senator BILYK: 13 March 2014 to 31 December 2015 was the contract period.
Senator Brandis: I am sorry, give me those figures again?
Senator BILYK: 13 March 2014 to 31 December 2015 was the contract period for $3.4 million.
Senator Brandis: Okay.
Mr Minogue : In terms of what is reported on AusTender, it is not fees paid; it is an estimate of what the total value of a contract might be over the reporting period, so it is a projection of what the maximum might be. The reasons for that under the Commonwealth Procurement Rules are for transparency and accountability. It does not necessarily reflect what amount was actually paid.
Senator BILYK: So it could be over or it could be under?
Mr Minogue : No. If it was over, it would have to be adjusted. What it does not reflect is the amount of work that goes into the services being provided, and you cannot extrapolate, for example, from the estimate on AusTender with, say, the number of sitting days and mathematically come up with a number that equals a daily rate.
As the Attorney says, negotiation with external counsels is quite common. In fact, I think we would be quite horrified if there wasn't negotiation with the external barristers, because the Commonwealth's starting position is to get a better rate than counsel's normal rate for the commercial work that they do. That is in fact one of the strongest reasons why the rates that are being paid are kept confidential. One of the strongest reasons for them to keep confidential is so the Commonwealth does not lose its bargaining position when it is undertaking those negotiations with external counsel not just for any particular job or with respect to any particular counsel but in the broad reach of Commonwealth's legal work across all agencies. It is that commercial interest and the value of the Commonwealth being able to negotiate reduced rates for the work that it does, that is what is thought to be kept valuable.
Senator BILYK: I would like to know how much the rates were actually reduced by but, because it is such a state secret, I cannot find that out, can I? How do we ever know?
Senator Brandis: Senator, as I said, it is not the practice to provide information to the remuneration of individual counsel. I should say Mr Stoljar is a very senior commercial silk at the Sydney bar. The fee he would be able to command, no doubt, in private practice would be a very high fee indeed.
Senator BILYK: I have asked questions about this before but I have not been particularly happy with some of the answers I have received. I want to know if you can explain why the contract was let out of Minter Ellison's Brisbane office, if the TURC is based in Sydney and Minter Ellison headquarters are also in Sydney, why was the contract let out of the Brisbane office?
Mr Minogue : I am not aware that it was. The lawyers leading the support for the commission in Minter Ellison, as far as I am aware, are Sydney based lawyers. They may draw people in from other offices, depending on the expertise required but, certainly, the lead partner is based in Sydney.
Senator Brandis: I think that the Brisbane or Melbourne, for that matter, partners of Minter Ellison might cavil at the suggestion that the headquarters of the firm is in Sydney.
Senator BILYK: Could you just take that on notice, Mr Minogue, and confirm your answer to me as being correct. I am fairly certain it was led out of the Brisbane office.
Senator Brandis: I am sure this would merely be a matter of the billing practices. Fees paid to a professional firm are paid to the firm. It is not as if these are different branches of a company, for example.
Senator BILYK: I will defer to you, Senator Brandis. You did work for them previously. I have not worked for them, so I do not know what their billing practices might be but I am sure that—
Senator Brandis: I have not worked for a predecessor firm of Minter Ellison for 32 years.
Senator BILYK: But you have, so maybe their practices have changed over the years, maybe they have not. Some legal firms are quite slow to change, I know that.
Senator Brandis: I am sorry: did I say 32 years? I should have said 30 years.
Senator BILYK: You just aged yourself a bit, Senator Brandis, by two years.
Senator Brandis: I have not worked—
Senator BILYK: Or made yourself younger.
Senator Brandis: for that firm or its predecessor firm in Brisbane since 1985.
Senator BILYK: Did you have a role in the selection of the solicitors for TURC?
Senator Brandis: None.
Senator BILYK: None at all.
Senator Brandis: None at all.
Senator BILYK: Did you suggest to the royal commission that they engage Minter Ellison?
Senator Brandis: No.
Senator BILYK: Did you have any discussions with anybody in your department or the royal commission about the appointment of Minter Ellison before that decision was finalised?
Senator Brandis: None.
Senator BILYK: Has the cost of the contract for Minter Ellison blown out from $2 million to almost $17 million?
Senator Brandis: No.
Senator BILYK: Can you tell me what the cost of the contract is?
Ms Innes-Brown : If you are referring to the amount that is now showing on the AusTender document, that is the aggregated amount that takes into account the extension that occurred at the end of last year, so the original—
Senator BILYK: How long did we extend for?
Ms Innes-Brown : Another 12 months.
CHAIR: Senator Bilyk, you are over your time.
Senator BILYK: Can I just ask that that last question be taken on notice?
CHAIR: Yes, finish this one; I am sorry.
Senator BILYK: Sorry, Chair. Thank you. If that last question could be taken on notice, could I get a breakdown of those different areas you were going to talk to me about? I am not sure; did you finish your answer, Ms Innes-Brown?
Ms Innes-Brown : In relation to what is now currently appearing on the AusTender website, that is actually the aggregated amount that appeared from the start of the commission back in March 2014 and takes it through to December 2015. The original amount that was shown on there related to the provisional amount that was put in for the 2013-14 financial year and then the second amount that was taking it up to December 2014—the $7 million. And then, when the extension was announced in October last year, the new contract, which is the aggregated amount of $16.9 million that now appears on AusTender, is the provisional amount up to 31 December 2015.
Senator BILYK: I will re-read Hansard just to be clear on that. Thank you.
CHAIR: Senator O'Sullivan has some questions on group 1.
Senator O'SULLIVAN: I believe they are in group 1. I was hoping you might be able to take the committee through initiatives of government to deal with family violence.
CHAIR: Is this group 1, Mr Moraitis?
Mr Moraitis : It is all over because it is various—we will try our best.
CHAIR: It is cross-portfolio, which does mean that it is group 1.
Senator Brandis: I can tell you something about the government's action plan on violence against women, if that is really where you are going.
Senator O'SULLIVAN: That will fit in part—violence against women and children.
Senator Brandis: I have quite a lot of information, so it might be a long answer. Can I tell you that the issue of violence against women has been elevated as a priority for the Council of Australian Governments. At its meeting on 17 April 2005, COAG agreed to the model law framework for the national domestic violence order scheme being finalised by the end of 2015, and the working group responsible for the national domestic violence order scheme will report through the Law, Crime and Community Safety Council—that is the ministerial council which I chair—to COAG. As well as that, the national domestic violence order scheme working group will engage with an advisory panel, which was announced with the Prime Minister, to prioritise the implementation of that scheme, and that will be done under the auspices of the Department of the Prime Minister and Cabinet.
Parallel to that and the work of the working group, CrimTrac has been provided with $3.35 million in Commonwealth funding over four financial years, expiring in June 2017, to design, develop and test a prototype national domestic violence order information-sharing system, the object of which is to develop a prototype for a technical solution to improve coordination and information sharing of domestic orders and related court orders across systems used by courts, police and justice agencies and between jurisdictions in Australia. At its 17 April 2015 meeting, COAG also agreed that progress would be reported by the end of this year on the national information system.
In addition to that, Senator, as you would be aware, earlier in the year the Prime Minister and the minister assisting the Prime Minister on the status of women, Senator Cash, announced an action plan to deal with the issue of violence against women. That is being conducted under the auspices of the Department of the Prime Minister and Cabinet. I do not have the details here, but you can inquire through the Department of the Prime Minister and Cabinet in relation to those measures. But, within the Attorney-General's portfolio and the ministerial council for which I am responsible, those are the measures that are being undertaken at the moment.
That is, of course, in addition to the provisions we make that bear on this issue for legal assistance, family relationship centres and so forth. There are a couple more, and Mr Fredericks wants to add to my answer.
Mr Fredericks : There are a number of initiatives that the department is undertaking in the family law space as well. Firstly, the senator might recall that there were some amendments done to the Family Law Act back in June 2012 which were specifically designed to strengthen the way that the Family Law Act deals with family violence, so the department has currently engaged a very significant researcher in family violence and family law issues, the Australian Institute of Family Studies, to undertake an evaluation of those amendments to ensure that they are appropriately addressing issues of family violence. That report is due in August 2015, so that will be an appropriate opportunity for the department and ultimately the government to consider that report and any necessary change as a consequence.
Secondly, the department has provided a grant to the Australasian Institute of Judicial Administration to develop what is known as a national family violence bench book. As the name implies, it is an online resource for judges, for judicial officers and for family law practitioners in order to essentially draw their attention to relevant family law family violence issues. That grant is for three years, and it is due to be completed, I think, in the next year. I will stand to be corrected on that. So that is the second element of the response.
Thirdly, it is always worth noting, as the Attorney referred to, funding that is provided to community legal centres, which of course is utilised in aid of people who are suffering family violence. The same, of course, can be said of the considerable amount of money that is provided by the Commonwealth through state legal aid offices. In particular, that money is prioritised by the Commonwealth for family law matters and, obviously, for family violence matters that are dealt with as well. That is worth noting generally.
It is also worth noting that the government, of course, for some time has conducted various programs in the family relationship space. My notes here refer me to one particular service which is of crucial importance for dealing with family violence issues, and that is children's contact services. Essentially, that is the service that is available to assist separating and separated families to deal with the handover of children, obviously at difficult times in their life, in order to minimise the chance of family violence in that very difficult circumstance.
Finally, Attorney, just in the family law space, it is worth noting also that the Family Law Council has been provided with some terms of reference in order to specifically address the issues of families with complex needs where there is an intersection between Commonwealth family law and state and territory child protection systems. Issues of family violence often can emanate in either or both the Commonwealth family law system and the state child protection systems. This is a report which will seek to ensure the maximum overlap between those systems to ensure that, in a sense, issues of family violence are not falling between the two systems. The interim report of the Family Law Council is due by 30 June 2015.
Senator Brandis: Can I just comment on that last item, please, Senator O'Sullivan. I gave that reference to the Family Law Council last year because Professor Helen Rhoades, who is the Chairperson of the Family Law Council, identified it to me as one of the issues that she thought were the most acute—one of the most acute shortcomings in the family law system. As Mr Fredericks has said, there are a lot of matters concerning children where there is both a jurisdictional overlap and jurisdictional gaps when it comes to the interface between the federal family law system and state children's courts or equivalent courts in the various states, however so described. What Professor Rhoades's reference—we will have the interim report on 30 June, and we will have the final report on 30 June next year—is looking at is how those two systems can best be configured to ensure that children's matters, including, of course, the issue of violence against children, are best dealt with.
Senator O'SULLIVAN: There was reference in the answers provided to harmonising arrangements. Are there difficulties in enforcing orders now in different jurisdictions? Do we have a difficulty there, and, if so, what is in train to respond to that?
Mr Anderson : It is currently possible to manually register domestic violence orders in other jurisdictions so that they can be enforced, but that of course requires a greater degree of effort. They are not immediately mutually recognised, hence the desirability of seeing if we can harmonise the laws around the different jurisdictions, and that is work that is underway. Tasmania is leading a working group to seek to develop model laws for mutual recognition and enforcement to make that a much more streamlined process.
Senator O'SULLIVAN: Will this be part of the CrimTrac efforts?
Mr Anderson : The CrimTrac efforts are separate but related. CrimTrac is developing a prototype at the moment for information sharing because there are disparate information sources in terms of courts and police. CrimTrac is developing a prototype at the moment. It got some funding from the department of social security, $3 million odd, and it is developing a prototype that is being trialled in Queensland, New South Wales and Tasmania. The system will be useful, but you need to have the laws in place as well, so there are two different bodies of work progressing side by side.
Senator O'SULLIVAN: You may have said this earlier, but is it the case now that I can get a domestic violence order in one state and currently, today, it cannot be enforced in another? An individual would not be in breach of an order issued in Queensland if he visited a separated spouse in, say, Victoria or South Australia?
Mr Anderson : If you have got an order that you have already taken out from a court and you move to a different jurisdiction, you can get that order registered in the jurisdiction you have moved to and it can then be enforced in that jurisdiction as though it were issued by that jurisdiction. Indeed, last Friday, when the ministerial council on law, crime and community safety met, attorneys noted that this is something we need to make more apparent to those who hold domestic violence orders.
Senator O'SULLIVAN: So the beneficiary of the order has to make—
Mr Anderson : They do have to take that action. That is why it would be desirable to have the harmonised mutual recognition scheme so they do not have to take that further step.
Senator Brandis: That is something that is going to come back to the Law, Crime and Community Safety Council when it next meets in October or November this year.
Senator O'SULLIVAN: This is of personal interest to me. Has the department ever considered the complex question—and it is in part a federal matter—of victims of domestic violence and their registration on the federal electoral roll? Has that come under due consideration recently?
Mr Anderson : Not that I am aware of.
Senator O'SULLIVAN: Could you take on notice to provide a little, simple note? I am not asking for a big, complex investigation.
Senator Brandis: Could you express that question a little more specifically please, Senator O'Sullivan?
Senator O'SULLIVAN: Yes. Where victims of domestic violence have moved and taken a new address their obligation is to register on the electoral roll.
Senator Brandis: I am sorry, I do not quite understand. What obligation?
Senator O'SULLIVAN: They have an obligation to register on the electoral roll where they are to vote.
Senator Brandis: Yes, and what do you—
Senator O'SULLIVAN: The protection of their identity.
Senator Brandis: Oh, I see.
Senator O'SULLIVAN: So they cannot be identified. Sorry, I should have been—
Mr Fredericks : I think we might, Senator, with your permission, pass that on to our colleagues in the AEC. The Department of Finance will have responsibility for that issue.
Senator O'SULLIVAN: All right. Thank you.
Senator Brandis: Senator, I know you have a deep interest in this area, so I might also, if you like, make sure the appropriate officials look at this properly and organise a private briefing for you.
Senator O'SULLIVAN: I appreciate that very much. I understand the Senate Finance and Public Administration References Committee has recently reported on its consideration of violence against women. Apart from anything that might have already been expressed, is there anything the department can share with us in relation to where that might take us? I know a number of the recommendations have been covered in our discussions. One thing we have not talked about is the sharing of national outcome standards for perpetrator interventions. I think you have covered the other things that I had interest in there.
Mr Anderson : The report on domestic violence has not been provided yet. It is not due until June.
Senator O'SULLIVAN: I see. You have not received an interim report from that reference?
Mr Anderson : I believe there is an interim report but not on domestic violence. That is my understanding.
Senator O'SULLIVAN: Thank you for that.
CHAIR: Minister, you indicated that certain state governments were working on this. I am wondering if the Queensland state government is part of that. There has been some controversy about members of the government themselves being the subject of domestic violence orders. I am wondering whether the Queensland government is participating and what its attitude to this is.
Senator Brandis: The Queensland government is participating through the Law, Crime and Community Safety Council, which has this as an agenda item. This is largely being discussed at an officials level. I am not aware of any respect in which there has been a lack of cooperation from the Queensland government.
CHAIR: I am just wondering about their own actions in the area. Anyhow, we will perhaps look at that another day.
Senator BILYK: I want to go back to some more questioning on the trade union royal commission. I understand there was an interim report. Was that to you, Senator Brandis, in October 2014?
Senator Brandis: It was to His Excellency the Governor-General.
Senator BILYK: There was a secret portion in that report, was there?
Senator Brandis: There was a confidential—
Senator BILYK: Confidential—secret—confidential. I am presuming you are telling me you cannot tell me what is in it. How many pages was that confidential report?
Senator Brandis: I do not know.
Senator BILYK: Did you see it?
Senator Brandis: Yes.
Senator BILYK: Could you take it on notice and tell me—
Senator Brandis: How many pages?
Senator BILYK: how many pages the secret report was.
Senator Brandis: Yes.
Senator BILYK: Has the secret report been shared with the Prime Minister?
Senator Brandis: I had better take that on notice. I imagine that it has come to his attention.
Senator BILYK: And, if so, if it has been read by any of the Prime Minister's staff as well.
Senator Brandis: I do not know.
Senator BILYK: Please ask the Prime Minister when you check that. It should not be that hard.
Senator Brandis: I am not quite sure what you are asking me. 'Has it been read by him?' Is that what you are asking?
Senator BILYK: I am asking (a) Has it gone to the Prime Minister?—
Senator Brandis: Yes.
Senator BILYK: and (b) Was it read by the Prime Minister? and (c) Was it read by any of the Prime Minister's staff?
Senator Brandis: I will inquire of the Prime Minister. This, of course, is a question not for me but for the Department of the Prime Minister and Cabinet.
Senator BILYK: I do appreciate you inquiring of the Prime Minister for me. Do you know if it has been chaired outside of government at all?
Senator Brandis: I do not. When you say 'outside of government' I am sure it has been shared with the police. I do not know if you regard the police, for the purposes of your question, as being part of government.
Senator BILYK: Not in this particular instance, I guess—the police. Is there anyone else you know it has been shared with?
Senator Brandis: There is a police apparatus, under the jurisdiction of Commander Ney, attached to the royal commission so, perhaps, Commander Ney might be able to add to my answer.
Mr Ney : Yes, Senator. I am from the Australian Federal Police and am performing the role as Commander of Investigations for the trade union royal commission. That report has been shared with me, but it has not gone back to policing agencies. It has stayed within the royal commission.
Senator BILYK: Besides you, have other members of your staff looked at it?
Mr Ney : My inspector for the New South Wales task force has seen the report.
Senator BILYK: But that is all, from your end.
Mr Ney : That is correct.
Senator BILYK: Minister, please take on notice if it has been shared with anybody else.
Senator Brandis: I am not sure that I am going to be in a position to tell you, for reasons I discussed—
Senator BILYK: You have not, is what you are telling me.
Senator Brandis: with Senator Lambie before, about the Royal Commission into Institutional Responses to Child Sexual Abuse. The way the royal commission goes about its affairs is entirely a matter for it, and what the royal commission may do with information is entirely a matter for it.
Senator BILYK: I understand that. If you know of anyone else it has been shared with, I would be keen to know. Has the government officially responded to the report?
Senator Brandis: No, not officially.
Senator BILYK: Just unofficially.
Senator Brandis: My point is, this is the confidential portion of an interim report. The government will respond comprehensively to the royal commission's final report when it is received. There may be—I do not want to anticipate—policing and prosecution consequences arising from the royal commission. I do not know if you recall that, a response by the government; it is a potential law-enforcement response.
Senator BILYK: Is it correct that TURC suspended for five months from the end of 2014 to the first hearings in April 2015?
Senator Brandis: No.
Senator BILYK: What happened when Commissioner Heyden was on his sabbatical, in Oxford, in the UK?
Senator Brandis: The royal commission's work continues. Without going further than I should, I think we can say that there is quite a deal of investigative work which underlies the work of the royal commission. So it is not as if the royal commission only exists when Commissioner Heyden is sitting in a courtroom receiving evidence. The fact that Commander Nay has been appointed the head of the police task force attached to the royal commission should indicate to you that the royal commission has an ongoing function and tasks beyond Mr Heyden taking evidence.
Senator BILYK: Did the extension of the royal commission interrupts Commissioner Heyden's sabbatical in Oxford at all?
Senator Brandis: I think the word 'sabbatical' is inapt. The position was that Mr Heyden was asked whether he was prepared to continue to serve when the government decided to extend the reporting date of the royal commission. Mr Heyden kindly agreed to continue to serve but he had pre-existing academic commitments as a visiting professor at the Oxford law school which he met and which the government was happy to accommodate his meeting.
Senator BILYK: Was Mr Heyden pleased at the extension of the royal commission, or did it get in the way of his plans?
Senator Brandis: Mr Heyden is a professional man of the highest eminence and he was asked to undertake a professional task. He agreed to do so and, no doubt, has gone about it with the dispassion one would expect from a professional man.
Senator BILYK: Is there any correspondence between the commissioner and the Attorney or his department touching upon the sabbatical in Oxford?
Senator Brandis: As I say, it is not a sabbatical. Mr Heyden—
Senator BILYK: His time in Oxford.
Senator Brandis: I do not recall signing any letters to him, if that is what you mean. But I will take that on notice and have it checked.
Senator BILYK: Thank you. Can we get a copy of that correspondence if there is any?
Senator Brandis: I will have to consider that; it may or may not be appropriate for release.
Senator BILYK: To paraphrase you: even though the Commissioner was away, the royal commission was still working away. Is that correct?
Senator Brandis: Yes, it is.
Senator BILYK: So there were no wasted costs at all?
Senator Brandis: No. And obviously Mr Heyden, having been remunerated on a per diem basis, was not being remunerated for the days he was overseas being a visiting professor at Oxford. I am told by Ms Innes-Brown that there were some tasks that Mr Heyden did perform while he was overseas in his capacity as a royal commissioner for which he was remunerated, including, among other things, signing some documents.
Senator BILYK: Did you receive any correspondence from Mr Heyden while he was overseas?
Senator Brandis: No.
Senator BILYK: Not even a postcard?
Senator Brandis: No.
Senator BILYK: Senator Brandis, poor you!
Senator Brandis: Mr Heyden did not even send me a Christmas card.
Senator BILYK: Really? Dear me!
Senator JACINTA COLLINS: Can you quantify the number of hours whilst he was on sabbatical?
Senator Brandis: I will take that on notice; I am sure we can.
Senator JACINTA COLLINS: I want to move on to a different matter, and that is what our secretariat described as a clarification of evidence from Mr Moraitis to the additional estimates. Mr Moraitis, you indicate to the chair that it had been drawn to your attention that your evidence had been misunderstood. Page 95 of the Hansard of 24 February refers to an answer to Senator Hanson-Young. You said:
… I have lost those notes, losing my briefcase by mistake. I am sorry.
Firstly, I want to understand: do you actually mean a correction to Hansard?
Mr Moraitis : Yes. I never said, to my recollection, that I had lost the briefcase, because I had not lost the briefcase. I just think there was a mistranscription of what I had said.
Senator JACINTA COLLINS: Have you sought to correct Hansard?
Mr Moraitis : No, because I was waiting for supplementary estimates to be able to do that. Orally there was not an opportunity, so I followed up with a letter. I apologise for that.
Senator JACINTA COLLINS: Just as a matter of process—senators and even ministers use this process all the time—we are provided with proof Hansards and, if we feel that there is something that has been mistranscribed, it is up to us to essentially ask Hansard to correct the record. It is best done sooner rather than later, and I would suggest, given the clarification you have provided to the committee, that that is something that you should seek to do.
Mr Moraitis : I will take that on board.
Senator JACINTA COLLINS: The misunderstanding is perpetuated as long as this remains on Hansard.
Mr Moraitis : I am sorry. I thought that perhaps, if the occasion arose at the estimates following up, I could raise that, but it did not occur, and so I followed up. In retrospect, it might have been better if I had just written and asked for a correction of the actual Hansard.
Mr Moraitis : So I will do that in future. Thank you.
Senator JACINTA COLLINS: The other issue is that, if you want to clarify any of the evidence that has been provided to us, that is usually best done as immediately as possible after the hearing as well. You ended up subsequently sending us a statement or a summary that you provided to the minister—I think on 25 February.
Mr Moraitis : Yes.
Senator JACINTA COLLINS: I am not sure if there were actually any errors per se that that statement refers to, but if you felt the need to address how the issue was presented to this committee then that is the point in time to provide it to the committee, rather than waiting until some extraneous person runs an FOI.
Mr Moraitis : I am sorry. I just made a judgement call at the time that perhaps I could wait and clarify it in person. It did not occur. I decided to do it this way. In retrospect, I will seek to clarify and change the Hansard, if permitted by the secretariat, ASAP.
Senator JACINTA COLLINS: It will not be the secretariat who permits a Hansard change. That will be Hansard separately.
Mr Moraitis : Okay.
Senator JACINTA COLLINS: In your summary that you provided to the minister for the purposes of question time, I think, you state in brackets around halfway through, 'I do not mention the specific role here, for the same reason that I did not do so in the 24 February estimates.' Is that bracket part of the advice you gave to the minister for question time, or is that a subsequent bracket that was put in for the purposes of the FOI or for the purposes of this committee?
Mr Moraitis : No, that is the full statement I provided to the minister. It was just a reminder of that point that was raised.
Senator JACINTA COLLINS: Anticipating, for instance, freedom of information or some other request that might make it available beyond the minister.
Mr Moraitis : Not really. I was trying to be as accurate as I could, and that was put in parentheses to remind of the context in which I have not mentioned it in this statement. The same reason applies in this case as it did during the actual estimates hearing. That was explored, I think, with Mr Reed, if I recall correctly.
Senator JACINTA COLLINS: There was a media report about a Queensland barrister, Alex McKean. Is he the person for whom the freedom of information request occurred?
Mr Moraitis : I would have to confirm that. I am not sure who the actual person was. It could well be, but I am not sure.
Senator JACINTA COLLINS: I do not intend to reprosecute this issue, especially given where the AFP have come to, but I do ask the question that was asked in the media article that referred to Alex McKean as being the person prosecuting this request: if the briefcase was not missing then where are the notes? Given that that has been raised publicly, I give you the opportunity to respond to that question.
Mr Moraitis : I have nothing further to add to my answers in February. I have not been able to locate those notes.
Senator JACINTA COLLINS: Thank you. Chair, I think Senator Bilyk has some detailed questions on legal assistance, but I note we are 37 seconds off, so you might want to go to another senator at this point.
CHAIR: Could I just clarify that, Mr Moraitis? You said—and I clearly remember this—that you had lost your notes.
Mr Moraitis : Yes.
CHAIR: Are you saying that someone had reported that you said you had lost your briefcase containing the notes?
Mr Moraitis : In the Hansard, as Senator Collins pointed out, it was transcribed as saying that I had lost a briefcase, which was not the case. My understanding was that it may have been mistranscribed, and Senator Collins pointed out it would have been more judicious to have corrected that through Hansard.
CHAIR: Are you saying that your evidence was that you had lost your notes, not lost your briefcase?
Mr Moraitis : Yes.
CHAIR: Yes. I seem to recall—
Senator O'SULLIVAN: That is my independent memory of it.
CHAIR: Yes—that you were actually shuffling around your office.
Mr Moraitis : If I recall, during the discussion there was no suggestion of that.
CHAIR: Okay. I just did not understand. I just saw this letter for the first time now. Well, I did see it before, because it is addressed to me, but I had not—
Senator JACINTA COLLINS: Just as a further point from the secretariat for Mr Moraitis's benefit, as we understand the Hansard processes, it is now too late, other than you providing a further statement or clarification that Hansard presumably could then incorporate—or indeed these hearings may help reflect that.
Mr Moraitis : I assumed that letter to the secretariat would have done that. No?
Mr Moraitis : I will follow the right procedure then.
Senator JACINTA COLLINS: We have published your letter, so that is on the public record, but there is no connection between it and the Hansard of a day's hearings.
Mr Moraitis : I will follow up then with the secretariat.
CHAIR: It is not for me to give advice to you on Hansard matters, but I think that has been covered and is on the record now, and I would forget about it if I were you. But, as I say, it is not for me to give you advice. But the record has been corrected, both in this letter which has been published on the committee's website and on these Hansards as well. Senator Wright?
Senator WRIGHT: I would like to ask some questions about legal assistance sector funding.
CHAIR: Is this group 2? We just want to finish with group 1 first.
Mr Moraitis : We can answer those questions. We are all here anyway.
CHAIR: You may do lots of good things, but I am trying to run this committee and this program we have got, and I am required by Senate rules to continue to work on group 1, corporate/cross-portfolio/general, which is the Strategic Policy and Coordination Group and Royal Commissions, until all senators are finished on that, and then we move on to group 2. I think it is a silly rule, but it is not for me to criticise the Senate's wisdom. So is this in group 1 or 2?
Mr Fredericks : Strictly it is in group 2.
CHAIR: Well, we are not dealing with it now. Does anyone have more questions for group 1?
Senator BILYK: I just need clarification about whether the premises standards is in group 1—the disability access that A-G's Department is doing in conjunction with the Department of Industry and Science.
Mr Fredericks : It will not be in group 1. We can find out what group it is in, but it will not be in group 1.
Senator JACINTA COLLINS: I have a couple of questions in relation to section 18C of the Racial Discrimination Act. Is that group 1?
Mr Fredericks : That is group 2.
Senator JACINTA COLLINS: That is what I thought. That can wait. What about AGS? Is that group 1?
Mr Fredericks : It is being dealt with in group 2.
CHAIR: No more questions on group 1?
Senator BILYK: I want to clarify if someone is going to find out for me where the disability stuff comes up.
Mr Fredericks : We suspect it is group 2.
Senator BILYK: You suspect? Okay.
CHAIR: So that is resolved, Senator Bilyk?
Senator BILYK: If it is group 2, it is.
Senator JACINTA COLLINS: I may have one issue that still does remain in group 1. I want to turn to the issue of ministerial correspondence and the processes for receipt and handling in the minister's office and the department. What happens when correspondence first arrives in the minister's office?
Ms Chidgey : My understanding is that the usual process in the office is that, when correspondence is received, the departmental liaison officers select the relevant division and branch of the department that will need to assist in preparing a response and then mark it down accordingly. It is then received in my division and allocated.
ACTING CHAIR ( Senator Jacinta Collins ): So your division is?
Ms Chidgey : Strategy and Delivery Division.
ACTING CHAIR: So the DLO handles it, suggests which section it should go to and it is then forwarded to your division?
Ms Chidgey : Yes. It then comes through the electronic system and is allocated to the relevant branch.
ACTING CHAIR: What is the acronym for the electronic system? Is there a different one for A-G?
Ms Chidgey : It is ExecCorro.
ACTING CHAIR: That is a new one to me.
Ms Chidgey : And we are transitioning to the Parliamentary Document Management System.
ACTING CHAIR: I think that was the one I was familiar with. So then its receipt is essentially recorded in this ExecCorro. Is that correct?
Ms Chidgey : That is right.
ACTING CHAIR: So then it is sent to your division and then sent on to whichever relevant section of the department for a covering brief and a draft response. Is that the process?
Ms Chidgey : That is right.
ACTING CHAIR: And who generally authorises the draft response?
Ms Chidgey : It varies, depending on the clearance procedures in branches, but usually it could be EL2 or SES level.
ACTING CHAIR: Who generally signs responses to ministerial correspondence? Is it the minister himself or other members of his staff? Or are there processes for determining certain matters are dealt with by the department?
Senator Brandis: I had better answer that. After the process that has been described by Ms Chidgey, there is some correspondence that the department retains and it is signed by a relevant officer of the department. The most routine correspondence would fall into that category. There is some correspondence that is referred back to my office for signature, or is set aside by my office to be dealt with directly without the imposition of the department. Within my office, there is some correspondence signed by my chief of staff, Mr O'Sullivan, and there is correspondence signed by me.
ACTING CHAIR: And is there also some correspondence which is just dealt with exclusively by the department? Or does it all come back to you, Senator Brandis?
Senator Brandis: Yes; I said that. I said that most routine correspondence is dealt with by the department.
ACTING CHAIR: Sorry, I missed that bit. I would like to turn now to the specific correspondence that was received by your office from Man Haron Monis on 1 October 2014. On Monday of this week, during the hearing of the coronial inquest into the Lindt cafe siege, junior counsel assisting advised that on 1 October Mr Monis wrote to you, Senator Brandis, asking your advice as to whether it was legal for him to write to the leader of the Islamic State. Counsel assisting advised that you, Senator Brandis, replied by advising Mr Monis to seek legal advice from a private legal practitioner. Is that an accurate description of events?
Senator Brandis: No, it is an inaccurate description in several respects. First of all—and I looked at this exchange of correspondence as recently as yesterday morning, and I am just having it brought to the hearing room, where I will table it—the date of Sheik Man Haron Monis's letter was not 1 October; it was a little later in October I think, but I will check that. And I did not reply to it; it was replied to by the officer of the department, because it was classified as routine correspondence, given the nature of what Sheik Man Haron Monis asked.
Given the sensitivity of this matter, rather than having both the letter to me and the reply paraphrased, I think we will have them tabled and read into the record, so we are not confused at all.
ACTING CHAIR: Sure. It may be best then for me to wait until they are tabled before asking the remainder of my questions.
Senator Brandis: Yes; and I have asked for the two letters concerned to be brought here urgently.
ACTING CHAIR: I suggest that we return to this once it is tabled. Unfortunately, group 1 relief is limited by this matter but, if there is anyone here from group 1 for matters relating to areas other than this one, they are welcome to go. We can move on to Senator O'Sullivan.
Senator O'SULLIVAN: Thank you, Chair. Are you able to confirm the deficit position of the courts?
Dr Smrdel : The Family Court and the Federal Circuit Court are projecting a deficit of minus $8½ million dollars in 2015-16.
Senator O'SULLIVAN: Sorry, which courts was that?
Dr Smrdel : The Family Court and the Federal Circuit Court. They have a single appropriation; they are a single agency—they are separate statutory courts, but for budgetary purposes they are a single court and a single appropriation.
Senator O'SULLIVAN: Do you have any material with you that talks about the projected deficits in the courts? Are we on a trajectory here? For example, can you take us through—if the information is available—to 2018-19?
Dr Smrdel : We have information provided by the courts, and they are on a trajectory. In part, the government has responded by its announcement at the budget to provide some additional funding to the courts to address their deficits and to make them sustainable going forward into the future. You can seek to confirm them with the Family Court and the Federal Circuit Court tomorrow, but we have the projected deficits for the Family Court and the Federal Circuit Court, leaving aside the government's announcement of the additional funding provided to the courts. So—leaving aside that additional funding—the Family Court and Federal Circuit Court have projected deficits for the next four years as follows: in 2015-16, $8.568 million; in 2016-17, $11.342 million; in 2017-18, $12.478 million; and in 2018-19, $12.018 million.
Senator O'SULLIVAN: So that is over $40 million over the—
Dr Smrdel : That is $44 million over the forward estimates.
Senator O'SULLIVAN: Over the forward estimates. Can you give us some specs about these funding injections by the government into the court system? Do you have any detail of that? How much is being provided to each of the courts—to the Family Court and to the Federal Circuit Court and the like?
Dr Smrdel : The government announced in the budget an injection of $22.5 million into the Federal Court, the Family Court and the Federal Circuit Court. We can break that down between the individual courts in 2015 and 2016. Going beyond that, the government also announced that there would be an amalgamation of the back-office function of the corporate services of the Federal Court, the Family Court and the Federal Circuit Court.
Senator O'SULLIVAN: Has the government given any consideration to the maintenance and capital works relating to court buildings, or anything else, over the same period of time?
Dr Smrdel : Yes, the government has also announced a $30 million injection through the finance portfolio, to do some property works relating to services within the court and for improved childcare facilities, and also some capital works relating to safety within the holding cells within the courts.
Senator O'SULLIVAN: Moving on just slightly, but still on matters of revenue, what is the situation with fees in the Federal Court?
Dr Smrdel : The government has also announced that fee changes will also take effect from 1 July. The fee details are still being worked through. They will take the form of a regulation, which is yet to be made. But it is projected that the court fee revenue increases will raise some $87 million in additional fee revenue for the courts.
Senator O'SULLIVAN: Yes. But as I understand it, there has been a collapse in receipts into the court system due to changes made previously—that is, due to significant fee increases in 2012. I will ask the question a couple of ways. Has there been a decline in receipts revenues from fees since 2012?
Dr Smrdel : That is correct, Senator. In the general federal law space, with the Federal Court, which is in competition with the state supreme courts for a lot of the matters; there has certainly been a shift of matters out of the Federal Court into the state supreme courts, particularly relating to matters filed by the Australian Taxation Office in relation to corporate insolvency. Also, large publicly listed companies had a new fee item that they were subjected to, so, similarly, they shifted some of their matters which were previously held in the Federal Court and made state supreme courts their forum of choice.
Senator Brandis: Sorry to interrupt, Senator O'Sullivan, but can I point out that it was for the former of those two reasons that one of the budget measures was to reduce the filing fees in the Federal Court, because the Federal Court was actually losing a lot of business in the corporate insolvency field to the state supreme courts because the ATO could file in either jurisdiction.
Senator O'SULLIVAN: And I imagine that investment in the court was not being amortised across the—
Senator Brandis: I think that is probably right, but my point is that, reducing the filing fee for the Federal Court, although one might think that that would reduce the revenue, in fact will increase the revenue because, by bringing the filing fees in the Federal Court into equivalence to the state supreme courts, the Federal Court expects to recoup the revenue that was lost by the ATO filing in the state courts.
Mr Fredericks : In fact, if it would assist we can give you some numbers on the lost revenue, which I think you would be interested in.
Senator O'SULLIVAN: That would assist. While you are preparing your mind on that, Attorney, just out of interest, what are the circumstances where the Federal Court and a state court will compete in jurisdiction?
Senator Brandis: Because, for insolvency matters, the ATO could file in either jurisdiction.
Senator O'SULLIVAN: I see. That is interesting.
Mr Fredericks : On those numbers, it is worth noting that, in the 2013 calendar year, the Federal Court collected $24.6 million in revenue. There was then the fee increase that the Attorney and Dr Smrdel described implemented on 1 January 2013. In the 2014 calendar year, the Federal Court only collected $12.8 million. So it went from $24.6 million in annual revenue to $12.8 million in annual revenue.
Senator O'SULLIVAN: Who didn't see that coming?
Mr Fredericks : So that was a 48 per cent decrease in revenue.
Senator Brandis: If that was in 2013, it might be described as Labor Party economics.
Senator O'SULLIVAN: I suppose the glaring question is: what would the impact have been on the courts if we had not taken some measures to arrest the decline in receipts?
Mr Fredericks : I think there are two impacts. The first, obviously, is the revenue one, which we have described. The second is reputational, and I know the Federal Court had a concern about that. The Federal Court is a superior court in this country and it was worried about reputational issues in a large body of commercial work important to the economy of Australia moving away from the Federal Court to the state system. So, in a sense, there were reputational issues at risk as well, and that exercised the Federal Court.
Senator O'SULLIVAN: Thank you for that. That is all very interesting.
Senator Brandis: This might be convenient time to return to Senator Collins's questions about the letter from Haron, who describes himself as 'Sheik Haron'. I will table these letters. On 7 October 2014, Haron wrote to me at my Parliament House address. I will read the letter to you. It is marked via registered mail and it is short, so I will read it in full: 'Attorney-General George Brandis, I would like to send a letter to Caliph Ibrahim, the leader of the Islamic State, in which making some comments and asking some questions. Please advise me whether the communication is legal or illegal. Thank you, Haron.' That is the entire text of the letter. It is stamped as having been received—there are two 'Received' stamps on it. The larger of the two 'Received' stamps is a stamp impressed in my office, which says 'A-G received' on 9 October 2014. Then there are various boxes that can be completed, and the box that is ticked is 'reply by department'. Then the action area, NSLPB, is a reference to the National Security Law and Policy Branch. That is initialled with the initials of a person who was, at that time, one of my DLOs, who made the allocation to the National Security Law and Policy Branch, dated 9 October. Then there is a smaller received stamp impressed above that stamp which says 'Received 9 October 2014 by MCU'. MCU means ministerial communications unit, and that is within the department.
So what occurred with this letter is: it was received in my office on 9 October. It was dealt with on that day by a DLO in the routine fashion, who indicated that it should be replied to by the department—by the National Security Law and Policy Branch—and it was sent to the department and received by the department on the same day, 9 October 2014. A reply was prepared and sent over the signature of the Acting Assistant Secretary of the National Security Law and Policy Division, dated 5 November 2014. Let me read it to you—it is addressed to Sheikh Haron:
Thank you for your letter of 7 October 2014 to the Attorney-General, Senator the Hon George Brandis QC, regarding correspondence with Caliph Ibrahim, the leader of the Islamic State. The Attorney-General has asked me to respond on his behalf.
The Islamic State is listed as a terrorist organisation under part 5.3 of the Criminal Code Act 1995. Under the Criminal Code, it is an offence to direct the activities of, be a member of, recruit for, provide training to, receive training from, provide funds to or receive funds from or provide support to, a terrorist organisation. It is also an offence to associate with a member of a listed terrorist organisation in certain circumstances when such association intentionally provides support to that organization. The penalties for these offences are severe, and could be up to 25 years imprisonment.
The Attorney-General's Department does not provide legal advice to the members of the public and cannot address your specific question about the legality of corresponding with Caliph Ibrahim. Should you have further concerns about the legality of your proposed actions, you might like to consider obtaining professional legal advice.
Yours sincerely …
I will table those letters.
CHAIR: Senator Collins, you had some questions arising from this.
Senator JACINTA COLLINS: Yes, and Senator Brandis' outlining the content and dates of those letters has assisted in answering some of those. I will go back a step. It was received by the department and the DLO referred it to, I have written here, 'the NSCPB'. What does that stand for again?
Senator Brandis: The National Security Law and Policy Branch.
Senator JACINTA COLLINS: No, that was later.
Senator Brandis: No. It was received in my office. It was addressed to me. It was received in my office here at Parliament House. In accordance with the routine practice, it was assessed by a DLO on the day it was received and it was marked received on 9 October.
Senator JACINTA COLLINS: Yes. So if you could just go back—as you said, the DLO indicated certain boxes and that it should go to the department, and I wrote down at the time, 'the NSCPB'.
Senator Brandis: No. It is NSLPB—and I think that is a slight misdescription. It is obviously the initials of the National Security Law and Policy Branch. That is actually a division, so that is plainly an intended reference to the NSLPD, the National Security Law and Policy Division. It was transmitted to the department and received by the department—by the MCU, the ministerial communications unit—on the day it was received in my office.
Senator JACINTA COLLINS: It would be the ministerial communications unit that then farmed it off to the NSLPD, is that correct?
Senator Brandis: Perhaps Mr Moraitis can answer that, but that is my understanding.
Mr Moraitis : That is my understanding. It is the Ministerial Correspondence Unit that would then transmit it to the relevant branches for action.
Senator JACINTA COLLINS: I am just trying to understand the description we had about correspondence earlier so that we are in a common place here.
Mr Moraitis : Ms Chidgey can explain it; she is responsible the executive corro in the MCU.
Senator JACINTA COLLINS: What was the strategic unit you were referring to you?
Ms Chidgey : The strategy and delivery division, and that has the Ministerial Correspondence Unit in the department within my division. That unit manages correspondence coming down from the office and its allocation through the system the relevant division or branch that will assist in preparing the response.
Senator JACINTA COLLINS: So the DLO determined that the appropriate place for it to go was the national security law and policy branch, and a letter was drafted and approved by the acting secretary of that branch.
Senator Brandis: The acting assistant secretary of that division.
Senator JACINTA COLLINS: And then presumably sent back to—
Senator Brandis: It was posted to the addressee.
Senator JACINTA COLLINS: Sure. Can anyone tell me how common correspondence of this nature might be?
Senator Brandis: There is a very large volume of letters that come to me and to my department about a whole range of things, including seeking legal advice, including matters relating to issues of international affairs, including matters relating to terrorist organisations. I would not be able to quantify that for you, Senator.
Senator JACINTA COLLINS: What I am trying to identify is how common would it be for someone to write to you, Attorney, seeking advice about contacting IS.
Senator Brandis: I will take that on notice; I will find out how often correspondence of that kind has been received.
Senator JACINTA COLLINS: Was there any other action taken in relation to the correspondence?
Senator Brandis: In my office there was none taken, other than having it assessed and then sent to the ministerial communications unit for the department to deal with. What was done in relation to the letter within the department, Ms Chidgey would be the one to know.
Ms Chidgey : The process would be that once a reply is prepared it would come back to the Ministerial Correspondence Unit and the reply mailed out to the recipient.
Senator JACINTA COLLINS: No. I understand that element of a response; what I am curious about is whether the acting assistant secretary or some other person in the National Security Law and Policy Division thought that some further response, such as referring the matter to the AFP, might be appropriate.
Ms Chidgey : And that would be a matter for the relevant division to assess in each case—that is, whether there was further action or another agency that needed to be notified.
Senator JACINTA COLLINS: And that is what I am asking: did that occur?
Senator Brandis: I am not sure that Ms Chidgey is in a position to answer that.
Senator JACINTA COLLINS: I am not asking her specifically.
Ms Lowe : Senator, I lead the division from which this response was developed and sent. It is not routine practice necessarily to forward correspondence onto agencies, and whether it in fact occurred in this case I would have to take on notice.
Senator JACINTA COLLINS: If you would not mind taking that on notice please, with regard to the AFP or some other security alert process.
Ms Lowe : Yes.
Senator JACINTA COLLINS: I suspect later tonight we will get to the complexity of some of that. But certainly now, with our heightened security arrangements, it might be reasonable to expect that the department would not just simply respond to correspondence of that nature, but might think it is appropriate to alert other players in the national security space about requests of this nature.
Senator Brandis: These judgements are really expert judgements, not judgements of politicians. I am bound to say the tone of the letter is not obviously threatening, nor does the letter apparently contain any endorsement of or indication of favourability towards the Islamic State. It merely, in a neutral tone, asks a question about whether to communicate with this individual by making comments and asking questions is legal or illegal.
Senator JACINTA COLLINS: Yes, it is general in that sense but it is—
CHAIR: I have the feeling that these may be questions for ASIO or someone else.
Senator Brandis: There is a coronial inquiry going on at the moment, as we all know, in Sydney. This correspondence was in evidence before the coronial inquiry a couple of days ago.
CHAIR: I think what Senator Collins is saying is, if I could put it more bluntly, is: wouldn't someone forward anything relating to IS to someone else—I do not want to ask you who else. I am just wondering whether we are getting into high security grounds that are perhaps not the purview of this committee. Perhaps if there were something that needed to be said and Senator Collins could be briefed more privately—I am only guessing.
Senator Brandis: As Ms Lowe has said, she is going to take this on notice; and, in taking it on notice, no doubt she will turn her mind to what protocols, procedures and guidelines may have been in place in the department to deal with inquiries of this nature.
Senator JACINTA COLLINS: Chair, I am more than happy for Senator Brandis to highlight if he does think I am straying to issues that might be problematic from the point that you raise, and I can tell you from past engagements that that certainly will occur. What I would like to understand, though, is: in the context of the broader investigation into Mr Monis, which was undertaken by the secretary of the Prime Minister's department, Mr Thawley, and the Secretary of the New South Wales Department of Premier and Cabinet, Mr Comley, there was no mention of this correspondence in that report.
Senator Brandis: I do not know the answer to that question. Certainly Mr Thawley and Mr Comley had access to any documents they needed to have access to. Do you know, Ms Jones?
Ms K Jones : Senator Collins, I was seconded to the Department of the Prime Minister and Cabinet as part of the Thawley-Comley review, and we had access to correspondence from all relevant Commonwealth departments and agencies. To specifically reference every piece of correspondence that was provided to review would not have been possible in that review. There were literally hundreds of different pieces of correspondence.
Senator JACINTA COLLINS: Are you able to tell me whether this correspondence was considered by that review?
Ms K Jones : It was provided to the review and we considered all the correspondence that was provided to us.
Senator JACINTA COLLINS: Again, I suppose, Chair, the context here is in part that on 12 September last year the Prime Minister held a press conference announcing to the nation that the threat level of our country was being raised to high. In that press conference the PM stated:
Of course, if members of the public do notice anything out of the ordinary, if they do notice anything that concerns them, they should ring the national security hotline…
I am trying to understand—you have taken this partly on notice so this is a further question on notice—why a request such as this from Mr Monis would not have alerted a staff member within the department.
Senator Brandis: Of course you will remember, Senator Collins, that there was no reason to believe that any member of the Attorney-General's Department's staff would have known that Monis—or Haron, as he signed himself—was a person of concern at that particular time. As I said, the tone of the letter is not on its face threatening and nor does it contain any statements of support or affiliation for Islamic State. So these judgements, as I think you would allow—
Senator LAMBIE: He wants to send a letter to Islamic State and you do not see a concern about that?
Senator Brandis: are easier made in hindsight. I have taken on notice what protocols the department had to deal with letters of this character and I do not know that there is anything I can add to the discussion.
Senator JACINTA COLLINS: No, and I note you have also taken on notice how common correspondence of this nature might be. We will look at that when we get it.
Senator Brandis: You have phrased the question in that way and I said I would take it on notice. Senator, before you go on, you suggested in your previous question that the Prime Minister raised the national threat level to high—
Senator JACINTA COLLINS: No, he talked about it.
Senator Brandis: That is not what you said before, but that is right. The national threat level was raised to high by the then Director-General of ASIO, Mr Irvine» . Mr «Irvine» , the Prime Minister, the AFP Commissioner and I did a press conference in Melbourne in which that decision by ASIO—a professional judgement by ASIO, not a judgement by the political leadership of the country—was announced.
Senator JACINTA COLLINS: I was not suggesting that, but what I was referring to were comments by the Prime Minister about what all of us should do if something alerts our concern.
Senator Brandis: Sure. And the question is whether a letter of this kind should have alerted the concern of the relevant officers. I understand that.
CHAIR: I do not think query here—which I can well appreciate is related to Mr Haron; that would be being wise after the event, but whether it relates to Islamic State would have been the trigger that some might have thought perhaps needed further action, and perhaps that happened. That is what I was getting at. Perhaps that might have happened and yet we—
Senator JACINTA COLLINS: That is an earlier question I asked which has been taken on notice.
CHAIR: Okay. Anything further on that from anyone?
Senator LAMBIE: I actually do.
CHAIR: On that particular issue?
Senator LAMBIE: On this issue that we were just speaking about.
CHAIR: Okay, if there is some new question that you want to put to the officers.
Senator LAMBIE: I would like to ask just a quick one. How many letters do you receive asking you specifically about sending a letter to Islamic State?
CHAIR: That has already been asked by Senator Collins and has been taken on notice. We will go back to group 2. Senator Bilyk, then Senator Wright and then Senator Lambie.
Senator BILYK: I want to talk about the legal assistance funding cuts. In 2013 the government cut funds to legal assistance services and then did a little backflip on those. Even with the partial restoration of funding for some CLCs announced in the budget, other legal centres—particularly in the Northern Territory, South Australia and my home state of Tasmania—have not received any such certainty of future funding. The previously announced cuts have caused lasting harm to many centres providing access to justice. Why are only certain CLCs being quarantined from funding cuts?
Senator Brandis: Before the officers answer that, let me correct a couple of errors in what you have put. First of all, there were no cuts made in 2013 but in the 2013 MYEFO there were and it was an announcement that savings would be made commencing from 1 July 2015. So your suggestion that there were cuts from 2013 is erroneous. Secondly—and you have acknowledged this—the Prime Minister and I, having discussed the matter some months ago, decided to reinstate the savings that would otherwise have commenced on 1 July 2015 so that those savings will now not commence until 1 July 2017. So with the exception of the withdrawal of funding for advocacy services, which is a different debate, none of those savings have taken effect or will take effect for more than another two years. Of course, as well there have been no reductions at all to Indigenous legal services.
Senator BILYK: I did not actually mention Indigenous legal services. I did ask though why—
CHAIR: I would say Senator Brandis rightly anticipated—
Senator Brandis: You are painting a false picture of cuts to legal services, which—
Senator BILYK: Are you telling me there have been no cuts to legal services in Tasmania?
Senator Brandis: There will be no cuts to legal services as a result of any decision by the Commonwealth government as of today, with the exception only of advocacy, and that will remain the case until 1 July 2017.
Senator BILYK: 2017?
Senator Brandis: Yes, in two years time.
Senator BILYK: Sorry, I might have misheard, I thought earlier you said 2015?
Senator Brandis: No, I said that the reductions announced in 2013, that would have taken effect from 1 July 2015, were reversed by a decision the Prime Minister made at my suggestion—
Senator BILYK: So they were reversed.
Senator Brandis: and any reductions as a result of the new national partnership agreement will now not commence until 1 July 2017. So the picture you paint that legal assistance services have been cut is factually wrong, at least not as a result of any decision by the Commonwealth.
Senator BILYK: In its final report on access to justice arrangements released on 3 December last year, the Productivity Commission concluded that more resources are required to better meet the legal needs of disadvantaged Australians. You would be aware of that report I am sure. I will not quote it verbatim. But given these findings—
Senator Brandis: Given that it is about 1,000 pages long, I should hope not!
Senator BILYK: I could; I have 15 minutes. I can speak however I like. Given these findings of the Productivity Commission and the direct and severe impact on the delivery of legal services that cuts have already caused—although I think you are denying that—why does the government's budget provide for no extra funding for CLCs under the National Partnership Agreement on Legal Assistance Services for the first two years and for that assistance to CLCs to be slashed by 30 per cent as soon as Labor's funding injection ends in two years time?
Senator Brandis: There was a funding model that was applied—I do not understand the methodology of that model to be controversial—which made some adjustments in the funding between the various states and territories. As well, under the national partnership agreement, which we expect to come into effect on the first week of July this year and which will provide certainty to the sector for the next five years, the separate channelling of funding to legal aid commissions and community legal centres will be replaced by a unified funding model which will give more autonomy to the states and territories so that there will be a single payment in respect of legal aid commissions and community legal centres.
The other point I should make to you, Senator Bilyk, because I know you want to be fully informed about this, is that the Labor government in 2013, when Mr Dreyfus was the Attorney-General, provided for additional funding to the states and territories under a terminating program which was to terminate on 30 June 2017. That funding will continue as originally provided for by the Labor government until 30 June 2017 and will stop then. That was never intended to be a permanent addition or increment to base funding. It was always understood and was announced by Mr Dreyfus to be a temporary measure.
Senator BILYK: Can you clarify this for me? I am sorry, I am not trying to be particularly political about this. I want to try to get it straight in my head. I am not sure why you announced the restoration of funding for community legal centres if the funding had not been cut.
Senator Brandis: Let me try again. In the 2013 MYEFO some reductions were announced that were to take effect from 1 July 2015. 1 July 2015 is also the date on which the new national partnership agreement, a five-year agreement, which is the governing instrument for the Commonwealth contribution to the states and territories in respect of both legal aid commissions and community legal services, will operate. I had representations from some of the state and territory attorneys-general. In particular I had a very persuasive intervention from the Attorney-General of the Northern Territory, Mr John Elferink. As a result of those various interventions, my office and I made a decision that we would ask the Prime Minister to reverse the MYEFO cuts that were to commence on 1 July this year so that the funding would not be affected for two years until 30 June 2017. I went to the Prime Minister with Senator Nigel Scullion, the Minister for Indigenous Affairs, because we were also talking about Indigenous legal aid in the same conversation, and the Prime Minister acceded to my suggestion, so that funding was restored. The restoration of the funding was restored for the next two years—that is, from 1 July 2015 to 30 June 2017. For that reason, Senator Bilyk, it would not be right to say, with the exception of EDOs, which are a special case, that there has yet been any reduction in funding.
Senator BILYK: One of the oldest CLCs in Australia, the Redfern Legal Centre, states that it will lose half of its solicitors and its general legal team as a result of the funding crisis caused by the Abbott government's cuts. Its credit and debt service, police powers, employment and discrimination services are facing closure. Redfern estimates that it will be forced to turn away 500 clients seeking help over the next year. It has been forced to make a public appeal for donations to make up the funding shortfall. How can you claim that you are in any way improving planning, coordination and delivery of services at the local level to disadvantaged Australians?
Senator Brandis: Senator, I have tried to explain to you the facts here. I would be interested to know the date on which the spokesman for the Redfern Legal Centre made that statement. Would you be able to tell me?
Senator BILYK: I can later in the evening, after the dinner break.
Senator Brandis: It sounds to me as if that statement was made before the Prime Minister and I announced that the funding cuts would be reversed for the next two years, because it would not be truthful to say that the consequences that statement foreshadows will take effect this year as a result of our reversal of the earlier MYEFO decision.
Senator BILYK: Have you met with the Redfern Legal Centre to discuss the impacts of funding changes?
Senator Brandis: I cannot remember whether I have met with the Redfern Legal Centre. I meet with legal centres all the time. I have been to events in Redfern in the last 18 months or so. So I would have to check my diary.
Senator BILYK: Could you take that on notice and do that. Has the department contacted Redfern Legal Centre?
Senator Brandis: I think Mr Manning, who is the first assistant secretary who is responsible for this area of policy, has some further information for you as well.
Mr Manning : I have a copy of a report in The Sydney Morning Herald which contains some similar information. I think it is dated 18 May. In that, comments attributed to the centre's chief executive officer said:
… funding from state and federal family and community services departments and the NSW Office of Fair Trading had been cut in recent years.
The rest of the centre's funding came from the NSW and Commonwealth Attorney-Generals' departments.
And it 'hasn't risen to meet those losses'. So I understood them to be saying that other sources of funding have decreased and the Commonwealth has not increased its funding in the Community Legal Services Programme to meet that. That is what I understand from that article.
Perhaps it might be helpful if I say one other thing in relation to New South Wales specifically, and then perhaps Ms Quinn could address Tasmania, to come back to your earlier question. What we are trying to do in the revised arrangements for legal services is get to a situation where the money that is available and appropriated by parliament for this purpose is used as best it can be, and one of the measures we are taking to do that is asking states and territories to administer, through a state and territory planning process, the community legal sector money as well as the money that goes to legal aid commissions, which they already do.
In relation to New South Wales, that has not happened yet, because we are in the middle of negotiations in relation to those arrangements. In relation to the Commonwealth's offer, the Commonwealth has actually offered New South Wales an increase—I do not have the figures right with me—of about $2.4 million from this year's funding to next year's funding. What that means is that in effect there is over $2 million additionally available for New South Wales to allocate as it sees fit as a result of its consultations with the legal assistance sector, of which Redfern would undoubtedly be part.
Senator BILYK: So that money will go to the New South Wales state government?
Mr Manning : Should they agree to the revised arrangements. As the Attorney indicated, we are hopeful that that will occur this month. If it is all signed off by 25 June, the first payment under those revised arrangements will be made on 7 July, as I understand it.
Senator BILYK: Can you just explain to me then how they will determine who gets how much money.
Mr Manning : I might distinguish between what the intention is in the longer run and what will happen this year. What we are seeking to do is implement new arrangements, one of the key changes and features of which will be this jurisdictional planning I am referring to, where the state government, the Commonwealth government and all of the legal assistance providers sit down and, based on statistics and evidence that is already available, work out where the people who most need the legal assistance are located, what the needs of those people are, and so how we should prioritise the finite amount of money that we have. What we are hoping is that they will be in a position to implement that from the second year of the agreement. In relation to the first year of the agreement, something more abridged will have to occur, and we will have to consult with states and territories about what that is, but in New South Wales's case that will involve deciding how to allocate $2.4 million more to community legal centres than they have been able to allocate from Commonwealth funding this year. Tasmania, on the other hand, will have slightly less money, and I might hand over to Ms Quinn for that.
Senator BILYK: Just before you do hand over, in regard to New South Wales, if the state government does agree, what is the time line for this implementation? When will they start doing this?
Mr Manning : They would start from 1 July.
Senator BILYK: So in four weeks time.
Mr Manning : That is right.
Senator BILYK: So the legal services are up in the air about whether they are going to get funding or not, aren't they?
Mr Manning : Not completely, in the sense that Redfern is one of the centres which were a beneficiary of the decision the Attorney was speaking about earlier in relation to reversing the proposed cuts, so it has certainty of funding in relation to that amount. In relation to the remainder of its budget that is sourced under this particular program, it does not have certainty about that yet, but we would imagine that, given the extra funds going into New South Wales, there will be a very high degree of certainty for CLCs in that jurisdiction for next year, with the planning to come.
Senator BILYK: But there is no guarantee to them at the minute, is there? They are trying to do their next year's financial planning. It is almost June. This is going to take effect from 1 July. How are they supposed to do their financial planning?
Mr Manning : The New South Wales government have known not so much the quantum but the proposal for the arrangements. They already have in place quite good arrangements—
Senator BILYK: So we are just waiting for it to be stamped? Is that what you are telling me?
Mr Manning : We are waiting for New South Wales. The proposal is that the Commonwealth and New South Wales would reach an agreement under which New South Wales would receive this money, as additional funding, and then provide it to community legal centres as they see fit given the need in their jurisdiction. As I said earlier, though, our expectation is that in the first year, because they will not have these planning processes completely in place, they will probably maintain the status quo as much as they are able. In New South Wales' case, they are able to maintain the status quo at funding levels should they decide, but in fact they have over $2 million of extra funding on offer from the Commonwealth through this program for next year.
Senator BILYK: Just to be clear, are you telling me that they will not have any financial reduction in the next 12 to 24 months?
Mr Manning : No, I cannot say that, because it will involve, in the first instance, a decision by the New South Wales government about how they should sign onto the national partnership agreement. They will spend the first year's funding; then after that there will be that jurisdictional planning process put in place for subsequent years. I would imagine that a centre like Redfern would be a key participant in that.
Senator BILYK: Imagination is wonderful, but what happens in practice is what actually matters to me. It concerns me.
Senator Brandis: Mr Manning has told you about the extra $2 million.
Senator BILYK: I have just asked if it was guaranteed that Redfern would not lose any money, and I was basically told no.
Mr Manning : To clarify: as I said, some money is guaranteed, in relation to the two years restoration of funding. That is guaranteed; but, as I said earlier, the remainder of the funding they get from the Commonwealth is in the bucket of money that is yet to be resolved.
CHAIR: We might have to leave it there, Senator Bilyk.
Senator BILYK: I will come back for the rest of mine.
Proceedings suspended from 18 : 32 to 20:03
CHAIR: Order! This is the hearing of the Senate Legal and Constitutional Affairs Legislation Committee looking at the budget for 2015-16. This is the estimates dealing with the Attorney-General's Department. We are onto group two, Civil Justice and Legal Services Group.
Senator O'Sullivan submitted a motion to the committee, which I would have put, which was that the committee should adjourn until 10 o'clock. For what purpose? To watch the State of Origin. There is no-one else here to vote for it, so I will not even—you cannot vote, I am sorry, Minister. Unfortunately, we would not be able to have the motion carried, so I will not even bother putting it. Instead we will continue on with estimates. It is a travesty that the committee is meeting when State of Origin is on, I have to say. We will have to address that more carefully in the future, Secretary.
Senator BILYK: I do not understand State of Origin at all.
CHAIR: We are onto group two, and I indicated Senator Wright would have the call first.
Senator WRIGHT: We are onto a different form of blood sport then. I have some questions in relation to the new National Partnership Agreement on Legal Assistance Services, which is the new model to determine Commonwealth allocation of funding to legal aid commissions, community legal centres and Aboriginal and Torres Strait Islander legal services. While some information about the model is available, including that the model takes into account population and some service delivery cost factors, it is not detailed and does not indicate weightings. The full funding formula has not been publicly released. Will it be?
Ms Quinn : The details on the funding allocation model: initially, we distributed an abridged version just to inform states of how we had made the dissection of funding. We have since expanded that significantly and provided it, and it does include the weightings that were allocated to the factors that were in the model.
Senator WRIGHT: Is that publicly available?
Ms Quinn : We distributed it in the context of the negotiations with the states and territories on the national partnership agreement, but I believe most of them elected to send it on to the sectors. We have not published it but we have provided it as part of those negotiations. I do not think it would be a problem to provide it.
Senator WRIGHT: Thank you. If you could provide that, that would be very helpful. I know the government has a commitment to open government and I would have thought that was consistent with that. I would like to know—and I am hoping that what you are going to provide, and if it is not the case then maybe you can tell me—details, including factors and weightings of the funding assistance formulas that are used to calculate the amount of funding to be distributed to each state and territory in relation to legal aid commissions, community legal centres and ATSILS. Is it possible to say now what specific weighting will be assigned to each criteria and what, if any, reliance was placed upon actual service delivery?
Senator Brandis: As Ms Quinn said, we will release the formula to you, so you can read it for yourself.
Senator WRIGHT: I am interested in how quickly, because I am conscious that it takes effect very soon, and there are a lot of people that are really interested in talking to me about it. And I would like to—
Senator Brandis: It takes effect in 34 days time.
Senator WRIGHT: Yes, that is right. I am interested in how quickly it might be possible to get that?
Senator Brandis: We will make sure you get it fairly promptly.
Senator WRIGHT: Thank you.
Ms Quinn : If I can add though, there has been a little bit of confusion with some aspects of the sector in their concern over the weighting, so I want to distinguish between the factors that were found to be statistically valid in terms of how we allocated the comparative need across each of the three funding streams and the weightings that may have been used to do that. They do not translate into a service delivery weighting factor. If I can elaborate on that: for example, if we look at the model for legal aid commissions, in family law matters being a single parent was given a weighting of two—this has been provided to the states and territories—because it was found statistically valid that you were twice as likely to have a call on family law services if you were a single parent. That is not the same as us saying we expect twice the effort to be put into single parents, or they are double the priority. I wanted to clarify that. In terms of people understanding the funding allocation model for the three models—because they are different for each of the three streams—we are quite happy to provide that and we have provided almost everything we have got on it. But it will not change the outcomes of the funding allocations that all the states and territories have also already been given.
Senator WRIGHT: I am going to have to jump around a bit, because Senator Bilyk asked some questions, and I do not want to repeat myself, of course. There is a lot of sense to be made and information to be gained. The legal assistance sector is struggling to understand why government has significantly reduced funding for legal services in some states, including South Australia—which is my state, so I am particularly well acquainted with the situation there—but with lesser reduction proportionally to some other states. Can you explain why that has happened; how that has happened? What was the formula that was applied there?
Senator Brandis: That is the application of the methodology that, as I understand it, has not been controversial—
Senator WRIGHT: I beg to differ. I heard you say that earlier—
Senator Brandis: The results of the application of the methodology may not be welcome by the states that—this is just like when the Grants Commission allocates the GST money. The states that benefit like it and the states that do less well, understandably, are unhappy about it. The methodology is a neutral methodology. As I said, we will provide you with a copy of the formula so you can acquaint yourself with the elements that go into the formula and understand the methodology.
Senator WRIGHT: Without having seen the methodology, obviously, I cannot interrogate it particularly well, but I will put to you a couple of examples of what has occurred in South Australia. I need to be really clear, because I was listening earlier when you talked about New South Wales and that negotiations are still on foot, I understand.
Senator Brandis: Strictly speaking, this is the position: we had the Law, Crime and Community Safety Council meeting in Canberra on Friday, and states and territories were asked to put in their last comments by this week, and the Prime Minister will respond to those last comments shortly thereafter. So this is not actually finalised. The negotiations are at a very mature stage, but the agreement does not need to be actually executed until 25 June. So I suppose you could say that, until 25 June, nothing is absolutely final.
Senator WRIGHT: I would like to ask you particularly about South Australia's examples, because some of these are going to be very much worse off, and I am quite concerned about it. There are two community legal centres I will talk about in South Australia that together service a community of nearly 700,000 people. They have had it indicated that their funding will be reduced—'slashed' is the word, but I will say reduced—from $1.2 million to $350,000 in 2015-16. That is $350,000 to be shared between the two centres. I am just interested in what criteria were used to determine that funding. If there is just a neutral formula that is to be applied everywhere, with no room for negotiation or other offers, I am not quite sure what there is to negotiate with the states and territories.
Senator Brandis: Each state and territory has its own particular characteristics.
Senator WRIGHT: Absolutely. That is what I am interested in.
Senator Brandis: Let me give you an example from your state. In your state, Senator, community legal centres constitute a relatively smaller proportion of legal assistance providers than in most other states. In some states, the amount of money—certainly next year—for community legal centres substantially increases.
Senator WRIGHT: Yes. I am aware of that.
Senator Brandis: For example, in Queensland the amount for community legal centres substantially increases. What we are doing with these formulae is two things. First of all, we are making appropriate adjustments between the states and territories according to the various elements of the methodology, which we will share with you. Secondly, we are consolidating funding for CLCs and LACs. So you cannot look at CLCs in isolation in any given state, because it may be that there is a reduction in funding for CLCs but there may be correspondingly an increase or a shallower reduction in funding for LACs. So you cannot just pick one element of a consolidated aggregate and say that, because that element is being reduced, therefore there is an equivalent reduction across the sector, because that is just not arithmetically right.
Senator WRIGHT: I appreciate that. That is why I am really interested in the context, because I am still not really clear on to what extent, if the funding formula is a neutral formula that is applied without fear or favour across all the states and territories, there is any negotiation available—or is it that there will be potentially some additional funding for some states depending on the context that you have referred to?
Senator Brandis: I think it is best for you to have a look at the formula and the methodology. As I have said, we will provide those to you.
Senator WRIGHT: That does not actually answer my question, which is: to what extent is it just going to be a matter of applying a neutral formula across the states and territories in the same way and to what extent is there some room for some negotiation happening between the Commonwealth and the different states and territories? We have a state, in South Australia, that has certainly centralised legal services, but I am very aware that, without the country services—remote—being able to offer their services, people are going to be stranded.
Senator Brandis: Given that, as I have said, this negotiation is not at its end, I think, for reasons that are pretty obvious, I would not be making a running commentary on the negotiation at the moment.
Senator WRIGHT: That might be the main reason to do it, with respect, Minister—
Senator Brandis: That is a very good reason not to do it.
Senator WRIGHT: because it is really important.
Senator Brandis: The Commonwealth is negotiating with states and territories, so I am hardly going to be commenting on the Commonwealth's negotiating position, am I?
Senator WRIGHT: Has the Commonwealth offered any additional funding or support to community legal centres—I am thinking particularly of South Australian ones, but this is a general question, really—who, as of 1 July this year, I think 34 days from now is the calculation that the minister just gave, will be required to transition to the new national partnership agreement, in many cases with fewer staff and less funding? Has there been any assistance offered to support them in doing that?
Mr Manning : In short, the answer to your question is yes, but I might provide a bit of general context to address some of the issues you are raising. It is not a matter of a neutral funding allocation model being applied everywhere in the sense that the funding allocation model has built into it relativities to help determine how the funds should be allocated across the various jurisdictions. Indeed, legal assistance providers were consulted on that—on what other things are driving need, for example. So there was consultation around that already in the development of the model.
There are a couple of factors about South Australia in particular that are relevant to its outcome. One is that, when thinking about the funding allocation model, we had to keep in mind that there is a finite amount of money appropriated by parliament, and then it is a matter of assessing relative need. You might have a level of unmet need in a jurisdiction, but, if, because of population and particularly population of people who fall within the types of groups which Ms Quinn mentioned earlier are higher in other jurisdictions, they have a higher relative need, they will get a different outcome under the funding allocation model. In relation to community legal centres in South Australia, they traditionally have not received perhaps the same level of state support as some community legal centres in some other jurisdictions. Indeed, I think previously in South Australia they have received roughly 12 per cent of national CLC funding even though the population is only seven per cent. Noting what I said earlier about relative need, looking at population itself is not the final answer, but it is an indicator. As a result of what the Commonwealth is offering South Australia, it would still be the fourth highest per capita recipient of CLC funding after some of the other smaller jurisdictions such as the NT and Tasmania—so it is still receiving more per capita than some of the larger jurisdictions.
Notwithstanding all of that, South Australia is likely to receive less money in relation to both legal aid commissions and community legal centres, and the Commonwealth has offered South Australia to make up that difference in the first year in order to help it transition to the new funding allocation. I might hand over to Ms Quinn, who I think can go into a bit more detail in relation to some of those issues.
Ms Quinn : If we are talking specifically about CLCs, it is a funding allocation model applied nationally without fear or favour, as you said. The reason that the difference is quite stark in South Australia is that this is the first time we have done a funding allocation model for CLCs. With legal aid and with Indigenous legal providers, the changes are more at the margins because they have previously operated under a funding allocation model. For community legal centres, this is the first time we have done anything like that. It is really reflecting the fact that—as Mr Manning said, if you look even at just per capita it assists—South Australian CLCs did previously receive a disproportionately high share, so this is a more equitable distribution. Yes, there is a fairly significant reduction compared to what was there before, but it is the national draw on the finite amount of money.
Senator WRIGHT: The Central Community Legal Service in South Australia will have its funding cut by a minimum of 70 per cent, which is significant, and that will result in a risk to specialist legal services that are state wide—children and youth legal service and disability discrimination legal service.
Ms Quinn : It is not possible yet for us to know how the state government will choose to distribute the remaining money. As you have alluded to, there will be an amount of money for CLCs provided under the national partnership agreement that is quarantined for the first two years. That is part of that reinstatement of cuts and the government commitment to maintain Commonwealth funding levels to those CLCs. As for the remaining funding that the South Australian government would have discretion to distribute: we cannot know yet, and I do not think they are in a position yet to know, how they will do that. As Mr Manning said, there is the potential for us to be providing some additional funds to assist them with that transition. I am aware that at least one of the CLCs that we are talking about, for example, does a whole lot of state duty-lawyer services. Those are the sorts of things we are asking the state to have a look at in the context of the broader changes and service planning and all that sort of thing—where they distribute their funds. At the moment the state government distributes its proportion of CLC funding once it already knows where the Commonwealth has distributed its funds. There is nothing set in stone about where the state has previously set its allocations; obviously, that is its own money and it will be able to redistribute that. So, while I understand the uncertainty for those centres that are not quarantined, it is not as simple as saying, 'There are three centres and this amount of money; divide it by three.'
Senator WRIGHT: Correct me if I am wrong, but my understanding is that specialist legal services, such as children's legal services and disability services are not to be funded under the new national partnership agreement?
Ms Quinn : No, that is incorrect, Senator.
Senator WRIGHT: Will that be a decision that is made by state governments, essentially, in determining how to allocate the money that is being made available to them?
Ms Quinn : Yes.
Senator WRIGHT: I do not want to play language games here. That is the information that I am operating under. Is that because the formula does not apply to such an extent to specialist legal services?
Ms Quinn : No. As I said earlier, the factors that are used to determine the assessment of comparative need at a state level are not the same as saying, 'These are the groups you must only service.' There is, in fact, a much broader list of priority clients proposed under the current draft national partnership agreement. But, as we said, that is all a matter of negotiation at the moment. It is certainly not as simple as saying, 'Don't fund specialist services.'
Senator Brandis: Senator, what you have said is completely wrong, frankly. There are three funding streams from the Commonwealth: CLCs, legal aid commissions and Indigenous legal services. There is no separate funding stream for what you call specialist legal services. Specialist legal services may fall, in particular, into the category of CLCs. The Commonwealth will continue to make a substantial funding contribution to those. If anybody had told you that what you call specialist legal services will not be funded as a result of any decision by the Commonwealth in the course of the new National Partnership Agreement, that is entirely and absolutely wrong.
Mr Manning : This might provide another degree of reassurance there, with the Attorney-General's comments. In the proposed NPA, where it has the schedule of those centres which have guaranteed funding, there are centres such as the Women's Legal Service (SA), a centre which has a higher degree of specialisation than some of the other centres which are mentioned in that list. That is already proposed to happen, and there is no restriction on the state government in terms of how it deals with the specialist centres, other than going through that planning process I mentioned prior to the dinner break.
Senator WRIGHT: There are other criteria that have been introduced is my understanding, again. The Federation of Community Legal Centres Victoria has expressed concern that under the agreement it will no longer be sufficient, in terms of their clientele, to be financially disadvantaged or to fall within a priority group to obtain free legal help. Those who receive free legal help from community legal centres must be experiencing financial disadvantage and fall within a named priority group. There has to be an overlap, is my understanding. There is real concern about how those rules will be applied.
Mr Manning : That is something that is under negotiation at the moment but I can speak generally. It is an overcorrection of a mistake, in a sense. The way it was originally written it could be 'or'—so you could have someone who ostensibly belongs to a priority group, such as an older Australian, but who is not financially disadvantaged; and clearly there is not the money in the legal assistance sector to do that. It was then written as 'and'. The issue has been raised a number of times and we have already gone back to states and territories with an alternative whereby it is the financially disadvantaged who are the priority clients. We also know that even among the financially disadvantaged, there are people who have other characteristics of vulnerability who we should focus on. That is already being negotiated with states and territories at the moment.
Senator WRIGHT: So the figure I have—
CHAIR: We will have to leave it there.
Senator WRIGHT: Could I just clarify one bit?
CHAIR: No, that was well more than 15 minutes. We can come back to you later, if you want. We run a fairness campaign here.
Senator LAMBIE: Attorney-General, I am going into Defence abuse so I am not sure whether you have to call any of your other people up. For clarification, could a royal commission be established without approval or recommendation from you, Attorney-General: yes or no?
Senator Brandis: I do not establish royal commissions. The Attorney-General does not establish royal commissions. Royal commissions are established by the issue of letters patent by His Excellency the Governor-General on the recommendation of the cabinet.
Senator LAMBIE: Will you and the government consider recommendations from former DART chair and former judge advocate for the ADF, Len Roberts-Smith, as well as women's rights commissioner, Elizabeth Broderick, before any decision is made on establishing a royal commission into Defence abuse?
Senator Brandis: What Mr Roberts-Smith and what Ms Broderick have to say will be considered carefully by the government.
Senator LAMBIE: I recently spoke with the Minister for Defence. He said the recommendations of those two people to the government were very important and would significantly influence whether a royal commission into Defence abuse would be established. Is that correct?
CHAIR: I do not like to interfere but, as the minister has said, this is not a matter for this department. The questions you are asking are valid but not for this estimates committee. We have a long program and a lot of senators want to ask questions, and we have to confine ourselves to the matters that are relevant to this committee.
Senator LAMBIE: Chair, if you look at group 2, it says, 'Defence Abuse Response Taskforce,' so I am simply asking the Attorney-General. It is something that the defence minister cannot answer for me because he is new in the role and I cannot get answers out of him. The Attorney-General has been in the role for quite some time. I think he can he answer the questions. It says here, quite—
Senator Brandis: I thought I did answer, Senator Lambie. I said that what Mr Roberts-Smith and what Ms Broderick have to say will be taken very seriously by the government.
Senator LAMBIE: Do you agree that Len Roberts-Smith, himself a long-serving senior officer in the Army and responsible for recommending whether there will be a royal commission into Defence abuse, will also be a likely witness at a royal commission into Defence abuse, which he may or may not have recommended?
Senator Brandis: I do not know. I do not know, because I have not seen the recommendation. If Mr Roberts-Smith conducted the affairs of the task force, it seems to me that he would not be someone who would be a witness at a royal commission but, no doubt, the findings of his task force would be evidence before a royal commission, were there to be one.
Senator LAMBIE: So you do not believe that his forty years of service as a RAE res officer at JAG would come into play?
Senator Brandis: No, I do not. I think the relevant question is: how would any royal commission of the kind that you describe, were one to be established, appropriately inform itself of the findings of the task force? And the way in which it would do that, in the ordinary course of things, would be for the findings of the task force to be placed before it. Mr Roberts-Smith would not need to be a witness because, on the hypothesis you have put forward, he would already have arrived at findings and conclusions which, no doubt, any such royal commission would have regard to.
Senator LAMBIE: Do you agree that the women's rights commissioner, Elizabeth Broderick, according to a commentary on Australian Story, is now a good friend of retiring Chief of Army, Lieutenant General «David Morrison, a person who would likely have been an important witness in any royal commission into Defence abuse?
CHAIR: I am not going to allow that question. I am sorry.
Senator LAMBIE: I think that is a fair question.
CHAIR: I am not going to allow it.
Senator LAMBIE: I think that is a fair call, Chair. These are the people who wear the uniforms and they know what is going on up the top.
CHAIR: It is a very valid point for another committee but not for this one. Do you have another question?
Senator LAMBIE: Do you agree the Governor-General of Australia, retired General Cosgrove, the person who would have final approval of the defence royal commission and sign off on it, would also likely be an important witness in any royal commission into defence abuse?
Senator Brandis: I do not know whether or not General Cosgrove would have knowledge of such matters on account of having been the Chief of the Defence Force. There is absolutely no relationship between the fact that as Governor-General he would issue the letters patent and whether or not he would have knowledge from his former capacity as the CDF of the matters that are the subject of any putative royal commission.
Senator LAMBIE: In your role as the Attorney-General, you have no concerns about any conflicts of interest that may arise for people who have important roles in recommending whether a royal commission into defence abuse was established or not?
Senator Brandis: There is a series of assumptions implicit in that question, all of which are wrong. The Attorney-General has no role beyond being a member of the cabinet in recommending to His Excellency the Governor-General to issue letters patent to establish a royal commission. If His Excellency the Governor-General were to receive such a recommendation, then no doubt he would, in accordance with orthodox constitutional principles, act on the cabinet's recommendation. It is inconceivable that there would be any conflict of interest in the Governor-General acting in accordance with the conventions of the Constitution on the recommendations of the cabinet.
Senator LAMBIE: There would be no conflict of interest due to his past role as the ADF Chief of the Defence Force if he is put on the stand? There would be no conflict of interest in that?
Senator Brandis: I do not know whether he would be or not, and I am not going to speculate on whether he would be or not. The point I am making to you is that when the Governor-General issues letters patent to establish a royal commission, he does not do so on his own initiative or because, as it were, he feels like it; he issues letters patent to establish a royal commission because he accepts the recommendation of the cabinet in accordance with ordinary constitutional principles.
Senator LAMBIE: The data only looked at claims up to April-May 2011. Can you tell me what further action parliament has taken since that time to deter this disgusting sexual abuse from continuing in the military?
CHAIR: That is not a question for the Attorney or for this committee and I will not allow it.
Senator LAMBIE: I would just like to know what actions parliamentarians have taken to make sure that this stays in.
CHAIR: I understand that you would like to know the answer, Senator Lambie—
Senator LAMBIE: I think it is a fair question, Chair.
CHAIR: It is a very legitimate question, but not of this committee.
Senator LAMBIE: We are talking about defence abuse.
CHAIR: No, we are not.
Senator LAMBIE: It is on the line; it is here to be spoken about.
CHAIR: This committee does not deal with defence abuse, I am sorry; that is perhaps a matter for the committee next week, the foreign affairs, defence and trade committee. Perhaps you could ask them there. It is a very legitimate question, but, I repeat, not for this committee. We have a lot of senators wanting to ask a lot of questions of the Attorney-General's Department, and I think, as chairman, I have to try to help the proceedings.
Senator LAMBIE: And this is one of them. Now I am starting to feel bullied by you that you are trying to shut me down. These are legitimate questions and I have victims out there who would like the answer.
CHAIR: They are very legitimate questions, but not of this committee—
Senator LAMBIE: They are. This has got 'defence abuse' written into it, Chair.
CHAIR: and I will not—
Senator LAMBIE: They are fair questions for this topic!
CHAIR: Do you have any other questions, Senator Lambie?
Senator LAMBIE: Yes, I do.
CHAIR: Okay, go on with them.
Senator LAMBIE: Military police service records: when it came to the DART, they were never asked to be passed in. There are thousands of these records out there in relation to abuse. Why weren't they asked by the DART to be passed in?
Senator Brandis: Mr Hall from the defence abuse task force is here, so he might be able to respond to you.
Mr Hall : In relation to service police records, the task force requested police defence or service police records in relation to any complaint where we were seeking information about a person of interest from defence. That request included the provision of any service police records that were relevant to that person. In addition, the task force requested all 'ADFAIS'—'ADF investigative service records'—in relation to sexual abuse at ADFA in the 1990s. That amounted to a total of 63,000 service police records, so there were significant numbers requested and analysed by the task force.
Senator LAMBIE: I am sorry; that was from ADFA, did you say? Did you say that was just from the Defence Force Academy?
Mr Hall : No, we requested all service police records, or all ADFIS records, so that is the central service police records, in relation to sexual abuse at ADFA in the 1990s. We also requested any service police records or any other relevant records regarding any person of interest in a complaint to the task force about abuse.
Senator LAMBIE: Did you get that back? Was that the 63,000?
Mr Hall : Yes, the number we have is about 63,000.
Senator LAMBIE: And you have been able to cross-check them with the complainants' records that you have received?
Mr Hall : That is correct.
Senator LAMBIE: The Defence ombudsman—were you able to obtain records from anything over the last 30 or 40 years that he has received, that that office has received, in relation to Defence abuse?
Mr Hall : Is that the Defence Force Ombudsman?
Senator LAMBIE: Yes.
Mr Hall : So the Commonwealth Ombudsman, who is also the Defence Force Ombudsman?
Senator LAMBIE: Yes.
Mr Hall : The role of the Ombudsman is somewhat different from the task force. We generally only engage with the Ombudsman where complaints, due to a conflict of interest, instead of being referred to DLA Piper or the task force, were referred to the Ombudsman, but we did not request records from the Ombudsman in relation to complaints.
Senator LAMBIE: In relation to exactly when the ads went out and you called people forward, can you explain to me the procedure of how that was done?
Mr Hall : Yes, I can. To begin with, of course, there were a number of public announcements in relation to the task force, asking for people to come forward. That was the first step. The second step was to place public notices in national newspapers Australia wide on three or four separate occasions during 2013 primarily, but in 2012 and 2013. Advertisements were also placed in all of the service magazines—the Army, Navy, and Air Force magazines. There was also information provided to community radio and other ways of distributing information out in regional areas. There were also, I think, two Defgrams, or two internal Defence memorandums, sent to all people serving in Defence, describing the task force and encouraging any victims of abuse to come forward to the task force.
Senator LAMBIE: Would I be able to obtain a copy of exactly where they went and who they went to during the time?
Mr Hall : Yes, I can provide that this evening for you.
Senator LAMBIE: Thank you.
Senator XENOPHON: My questions are to the Defence Abuse Response Taskforce. In response to questions on notice from supplementary estimates 2014, the task force advised:
As at 12 January 2015, the Taskforce has referred three ADFA matters to the police. These matters are not part of the group of cases identified as the 'ADFA 24'. It is not yet certain how many ADFA 24 cases involving complainants to the Taskforce will be referred to the police directly by the Taskforce as the Taskforce liaison with these complainants regarding their complaints is ongoing.
My question to you, Mr Hall, is: has the task force identified how many ADFA 24 cases involving complainants to the task force will be referred to the police? Can you tell us that?
Mr Hall : No. There are still a small number of ADFA 24 complainants who have yet to decide whether or not they would like their matters referred to police.
Senator XENOPHON: How many? Can you tell us?
Mr Hall : I think the total number could be three, although we have no indication that any of those three will want that matter to be referred to police.
Senator XENOPHON: If the cases have been identified, how many of those have been referred to police?
Mr Hall : No ADFA 24 cases have been referred to police by the task force. Just to give you some context around that: there have been three ADFA cases referred to police, one involving sexual abuse against a woman—it is analogous to the ADFA 24 cases but was not in that time frame—in addition to some analogous similar cases at RMC at the same time. Also, 14 ADFA 24 cases were referred to police between the 1990s and today, either by people directly going to police or Defence referring them to police, seven to civilian police and another seven, roughly speaking, to service police.
Senator XENOPHON: I note that it is the position of the DART, of the task force, in one of your most recent reports, that there ought to be a royal commission into these matters—that is correct?
Mr Hall : That was a recommendation of the former chair of the task force in November last year.
Senator XENOPHON: That is still the position of the task force; is that the case?
Mr Hall : I do not think that is entirely accurate, because that recommendation was entirely a recommendation of the former chair of the task force.
Senator XENOPHON: It was Mr Len Roberts-Smith's recommendation. You are saying that it was a recommendation of the chair but not of the task force. Is that the distinction you are making?
Mr Hall : Yes.
Senator XENOPHON: Does the current chair have that position?
Mr Hall : I cannot speak for the current chair except to say that he was not a part of that decision in November. I can say that he, as part of the current terms of reference, is required to liaise with Elizabeth Broderick in her analysis of that recommendation, and he is doing that closely at present.
Senator XENOPHON: Because of time constraints, perhaps we can truncate this. On notice, can you advise, perhaps as a matter of some urgency, given the number of victims of Defence abuse that there are still: what is the position of the task force? Does the current task force support the recommendation of the former chair, Len Roberts-Smith, that there ought to be a royal commission into the ADFA 24?
Mr Hall : I can take that on notice.
Senator XENOPHON: Thank you. Can we just go to the issue of the DLA Piper review. As you are well aware, it identified 35 systemic issues concerning abuse in the ADF that required further examination. The task force terms of reference required it to:
… liaise with the Minister for Defence, Chief of the Defence Force and the Secretary of the Department of Defence—
and the Sex Discrimination Commissioner—
on any implications of its work for Defence's 'Pathway to Change' and other responses to the series of reviews into Defence culture and practices …
I just want to put that in context so there is no misunderstanding. In a letter dated 8 March 2013 from the then Minister for Defence to the leader of the DLA Piper review, Dr Gary Rumble, the then minister confirmed:
Where the Taskforce's work highlights further possible systemic issues—
it goes on—
… the Taskforce will draw these to the attention of the Minister for Defence, Chief of the Defence Force and the Secretary of the Department of Defence.
Given the former minister's explicit direction regarding the examination of systemic issues by the task force, can you please advise why the task force appears not to have released comments and recommendations in respect of each of the 35 systemic issues identified in the DLA Piper review?
Mr Hall : The task force, particularly in its report in November last year, made significant analysis and findings in relation to systemic issues that came out of the cases which the task force has examined. With respect, Senator, I do not believe that the direction to the task force was to specifically respond to each of the 35 systemic issues, some of which bear no or a very tangential relationship to the work of the task force. The direction was to take into account the relevance of any findings of the task force to systemic issues and, in doing so, take into account those 35 systemic issues. So it was not the case that the task force was tasked with responding in a systematic way to the 35 issues.
Senator XENOPHON: Let me, for the purposes of this line of questioning, accept your interpretation, which I question, but I will go along with your interpretation. Even on your interpretation, which I find much narrower than an ordinary reasonable interpretation—well, there could be another interpretation of it—clearly, insofar as there are systemic issues identified by the DLA Piper review, will those matters be dealt with? On the basis of your own explanation, if there are systemic issues, they ought to be the subject of comment by the task force and recommendation.
Mr Hall : Consideration of the systemic issues identified by DLA Piper was tasked to the Department of Defence as part of its Pathway to Change process. In my understanding—and this is a question you would have to put to Defence—that addresses a broader set of issues than the task force is dealing with. The task force is only in a position of being able to comment on or draw systemic issues from 2½ thousand specific cases of abuse which it has analysed. So, if it is outside the findings of those cases, it is not in a position to make comment and it is not appropriate for it to do so.
Senator XENOPHON: Because time is short, I just want to clarify this. I am a little unclear. The former minister said, 'Where the task force's work highlights further possible systemic issues, those matters should be drawn to the attention of the minister, the CDF and the secretary of the department.'
Mr Hall : Yes.
Senator XENOPHON: Do you say that you are still bound by that?
Mr Hall : Yes.
Senator XENOPHON: Could you, in respect of that instruction, advise accordingly to what extent you have complied with that?
Mr Hall : Yes, I can. I can tell you right now, if you like, in brief. There were seven interim reports and one final report which contained, in varying degrees, analysis of systemic issues. There was a report into HMAS Leeuwin and a report into ADFA which focused primarily on the findings that came out of the analysis of those cases that came to the task force.
Senator XENOPHON: You do not consider that to be a narrow construction of the former minister's direction?
Mr Hall : No, because the task force is only able to identify issues that come out of the cases which are before it. It has no other source of information, and it would not be appropriate for it to do so.
Senator XENOPHON: But that source of information also includes the recommendations and the information provided by the DLA Piper review; correct?
Mr Hall : To the extent that it is relevant to the task force's primary role, which is to develop responses to cases of abuse in close consultation with victims of abuse. That is its primary role.
Senator XENOPHON: I will keep moving. Thank you, Mr Hall. The last task force report on abuse in Defence was tabled in parliament on 26 November 2014; is that correct?
Mr Hall : Yes.
Senator XENOPHON: Prior to that, seven interim reports were tabled, each approximately three months apart. No reports have been tabled by the task force since 26 November 2014. Will the task force be tabling any further reports and, if so, when?
Mr Hall : Yes. On 15 December 2014, amended terms of reference were provided to the new chair of the task force, Mr Robert Cornall AO. Those terms of reference require him to report to ministers by 30 June on the implementation of those terms of reference, so there will be a report provided to ministers on or about 30 June, and it will be a matter for ministers to determine the tabling of that report.
Senator XENOPHON: And it has to be tabled in a certain number of sitting days, as I understand it.
Mr Hall : I do not think there is actually a requirement to table any task force report. It has been a practice to do so though.
Senator XENOPHON: There are always more estimates, so we will follow that up. As at 27 October 2014, the task force had referred 80 matters to state and territory police for consideration of criminal investigation and prosecution. How many matters have now been referred to state and territory police for consideration of criminal investigation and prosecution?
Mr Hall : I think it is fair to say that, as at the beginning of this week, 109 complaints to the task force have been referred to state and territory police.
Senator XENOPHON: Have you been advised of the outcomes of the matters it has referred to the police? For example, how many prosecutions have been launched as a result of the task force referring information to police?
Mr Hall : We do ask police to provide us with feedback on the process of their investigations. Some of them, of course, can take a very long time. The short answer is: I am aware of one matter where a person has been indicted in relation to one of those cases and two or three others where an arrest or committal proceedings are underway. However, we are only really aware of what is happening in those cases to the extent that police provide us with that information.
Senator XENOPHON: And they are under no obligation to do that. It is certainly not a criticism of the task force. You cannot hold the police to that.
Mr Hall : No, I understand.
Senator XENOPHON: I will move on. As at 27 October 2014, the task force had identified still serving alleged abusers and referred 40 cases, including 64 alleged abusers, to the CDF for consideration of administrative or disciplinary action. Firstly, to date, how many cases and how many alleged still serving abusers have been referred to CDF for consideration of administrative or disciplinary action?
Mr Hall : A hundred and 10 cases have been referred to CDF. Those cases involve 151 alleged abusers who are still serving in Defence.
Senator XENOPHON: 151? That is a significant increase on the 64 from last year.
Mr Hall : A lot of time and energy has been put into that aspect of the task force's work—the main focus, I was going to say. There has been a significant increase, yes.
Senator XENOPHON: It is by no means a criticism. Obviously, a lot of work has been done. Has the task force been advised by the CDF whether any administrative or disciplinary action has been taken as a result of the information the task force has provided to the CDF?
Mr Hall : The information I have at the moment is that Defence has advised that they have taken or are taking further action. Just to be clear, it includes the ADFA 24 cases which have been dealt with partly as a separate category, and any other cases. So four cases where they are taking further action, involving 15 still serving alleged abusers.
Senator XENOPHON: So you cannot say how many alleged still serving abusers are facing administrative or disciplinary action?
Mr Hall : No. I can tell you that, of the ones that have been referred—the 151 alleged abusers—in relation to 15 there is action being taken, and there are another 98 where Defence is still considering whether to take action.
Senator XENOPHON: Perhaps I will take it up with the CDF.
Mr Hall : Many of those were referred in the last couple of months, so there is somewhat of a large number to get through.
Senator XENOPHON: I understand. If you could provide a time line of when those referrals took place in relation to the numbers of alleged abusers, that would be useful.
On 26 September 2014 I questioned the former chair of the task force in relation to whether certain information in the DLA Piper Review of allegations of sexual and other abuse in Defence would be addressed in the report of the task force that was due to be tabled in November 2014. Mr Roberts-Smith said, 'Yes.' Despite this unequivocal answer, these matters do not appear to have been addressed in the November 2014 report. Mr Len Roberts-Smith has since advised through correspondence from the current chair that '…to the best of Mr Roberts-Smith's recollection, the answer he gave would have reflected his intention at the time.' This is a letter from your chair, dated 7 May 2015, which I think you are familiar with. I have no problem with that correspondence being released publicly.
Given that the current chair has been working with the task force for over two years, can you please advise why each of the 35 systemic issues identified by the DLA Piper Review were not addressed by the task force in its report of 26 November 2014, despite the fact that it was my understanding, on the plain face of it, that they would be addressed, given the unequivocal answer given by the former chair?
Mr Hall : The question you refer to related to DLA Piper volume 2, did it not?
Senator XENOPHON: The four parts of volume 2 of the phase 1 report, which dealt with the Fairless and Resolution Branch.
Mr Hall : Those are a specific set of recommendations about the Fairness and Resolution Branch. The rest of DLA Piper volume 2, of course, was individual confidential complaint files.
Senator XENOPHON: I am conscious of the time. Could you provide further information—
Mr Hall : I can tell you that we provided those four volumes to the CDF. I believe we have also provided them to you.
Senator XENOPHON: I had access to them, along with my colleagues, I think.
Mr Hall : Perhaps this is something we should discuss separately. But those four volumes which are appropriate to be released are able to be provided.
Senator XENOPHON: Despite my line of questioning, I want make it clear that I do appreciate the work that the task force does.
Mr Hall : Thank you very much.
Senator O'SULLIVAN: Are you able to confirm how much the government has committed to the native title respondent scheme in the 2015-16 budget?
Ms Quinn : The government is providing $5.8 million over the next four years—which is, in round terms, $1.6 million per year—to make the scheme ongoing. It was to expire on 31 December this year, and now it will not.
Senator O'SULLIVAN: So was it to expire because it was part of a previous commitment?
Ms Quinn : Yes, it was an election commitment of the incoming government to have it for two years. As a result of this budget measure, it will now be an ongoing scheme.
Senator O'SULLIVAN: Excellent. What are the benefits of the scheme? Is there a similar scheme that currently exists for native title claimants? We know about this existing scheme, but—
Ms Quinn : Yes, so this existing scheme will continue to provide benefits, which are about assisting respondents with the costs of their legal representation, for things like hearings and tribunal appearances; also negotiations of Indigenous land-use agreements; legal assistance—so it is about assisting respondents resolving their interests in native title claims by meeting the costs of their involvement in the native title process.
Senator O'SULLIVAN: What sort of extension will this funding give to the scheme?
Ms Quinn : The scheme will now be an ongoing scheme. The published amounts are in the forward estimates for the four years, but it will continue beyond that period.
Senator O'SULLIVAN: Okay; excellent. Was there a demand within the community to extend the scheme? Were there representations made to government to respond?
Ms Quinn : Yes, there were. The community was certainly keen to see the scheme extend beyond the current end date of 31 December and, as an indication of that, the funds for the 2013-14 financial year are pretty much fully committed.
Senator O'SULLIVAN: So is the funding there for native title officers? And if so, what are the details around that?
Ms Quinn : Under the current arrangements, there is an amount set aside for native title officers, and that will be increased. So there will be $200,000 per year from 2016—native title officers are done on a calendar year. Native title officer functions are to assist industry representative bodies with the cost of employing a Native Title Officer, as the title implies. Funding will be distributed through a competitive grant process and each native title officer grant will be capped at $50,000 per year. The way that funding is administered is that the branch recipients are required to make a co-contribution equal to the amount of the grant they are being offered, either with in-kind assistance or with a cash contribution.
Senator O'SULLIVAN: So what sorts of bodies are eligible for this funding? Can you give us a thumbnail sketch of who would benefit from this additional money?
Ms Quinn : Sure. Native title officer funding is generally provided to industry bodies. If I give you an example, the five industry bodies that currently receive that funding are: AgForce in Queensland, the NSW Farmers Association, the Queensland Cane Growers Organisation, the Queensland Seafood Industry Organisation, and Wildcatch Fisheries of South Australia.
Senator O'SULLIVAN: There were changes made to the scheme by the previous government in 2012. Can you explain what those changes were?
Ms Quinn : Yes. The changes that were made were as a result of the 2011 budget. The previous government reduced the scheme's funding and reduced the scope of the scheme to be available for disbursements only—so expenses other than legal representation costs—except in matters that raised new or novel questions of law, or where the court required a respondent to participate in a claim beyond standard procedural processes. And also for that period, assistance for native title officers was ceased.
Senator O'SULLIVAN: So what was the effect of that? Were you able to measure the effect of that?
Ms Quinn : Administratively, the effect was simply that—in almost all cases—we were limited to paying grants for disbursements and there were no grants for native title officers. It was quite a short period of time between this funding ceasing and the reinstatement, and native title claims take quite some time to resolve, so it is not really possible to do trend analysis as such. But there certainly was some concern expressed by the federal court about the lack of funding potentially leading to delays in the resolution—but because it was such a short period of time, is not really possible to quantify that.
Senator O'SULLIVAN: So you are saying that there was a perception that it slowed down the native title process itself.
Ms Quinn : There was concern that it would, but it was not absent for long enough to really be able to determine that.
Senator O'SULLIVAN: Thank you for that information—another good news story for the government!
Senator BILYK: Just on that same topic, are farmers able to apply for that funding?
Ms Quinn : Yes.
Senator BILYK: It is not just industry bodies?
Ms Quinn : For native title officers, it is industry bodies. But for respondent funding, a party to a native title claim, someone who wants to be a respondent—
Senator BILYK: Is that out of that $5.8 million?
Ms Quinn : Yes.
Senator BILYK: Are test cases still happening?
Ms Quinn : In the native title space? Generally, test—
Senator BILYK: On native title.
Ms Quinn : I am not sure. I would probably have to take that on notice.
Senator BILYK: Given that all new spending was required to be offset, where was the funding for this allocation found?
Ms Quinn : The funding was found through a redistribution from the existing appropriation of legal financial assistance. There is a general scheme and an appropriation from there. The amount that would ordinarily have been attributed to native title was taken from there and put in a separate native title appropriation. So it was a net zero change in terms of the budget bottom line.
Senator BILYK: I do not want to put the wrong spin on this, but you have sort of robbed Peter to pay Paul. Is that right? You have taken it from one allocation and put in another allocation.
Ms Quinn : We have taken it from one allocation and put it to another, yes.
Senator Brandis: That is what I have said it means.
Senator BILYK: Thank you, Senator Brandis. We all know how educated you are. We all know how smart you are. You just do not need to show sometimes that you are ignorant as well, and rude.
ACTING CHAIRMAN ( Senator O'Sullivan ): Senator Bilyk, do you have questions—
Senator BILYK: You could have intervened on Senator Brandis.
ACTING CHAIR: I was about to but you jumped the gun.
Senator BILYK: I do not think you were; you never have yet. I want to go back to the issues about CLCs. If funding for CLCs is so scarce, why has so much money been allocated then to opposing native title claims, even if you have moved it from one budget to another?
Senator Brandis: That is a policy question, which I might answer because the decision was made by me. I think that you would understand that where there are two parties before a court or a tribunal both of them have an equal right to be heard and to put their case. That is what equality before the law means. It seemed to me that there was very significant support for native title claimants through various Commonwealth programs and there was no support at all for native title respondents under various programs and that justice demanded that native title respondents also, where they were appropriately needy, should also be given access to Commonwealth funding. I do not have the figures in front of me but it remains the case that the vast majority of funding of legal assistance for native title cases goes to claimants and a tiny proportion goes to respondents. But before the decision was made, 100 per cent went to claimants and zero per cent went to respondents. I do not think that is very fair.
Senator BILYK: In regard to the new partnership agreement, some states will lose funding under the new partnership agreement. You have just talked about how important it is that everyone has equal rights under the law. What are you going to do to ensure that vulnerable people in the states that are losing funding do not face further disadvantage?
Senator Brandis: We are prioritising; that is what we are doing. We are prioritising in a number of ways. Let me explain them to you. First of all, you heard the discussion between me and Senator Wright earlier in the evening. We are applying a neutral formula which seeks to adjust the aggregate pool of Commonwealth funding fairly between the various states and territories.
Secondly, within the aggregate amount of Commonwealth funding we are indicating our priorities in various ways. For example, as Mr Manning I think it was said before, we are identifying the priority client groups—that is, the most vulnerable people—and requiring that the Commonwealth's contribution be spent in priority on those most vulnerable client groups. That is a condition of the funding arrangements.
Thirdly, I have, as a result of a decision I made some time ago now, decided that we would not fund advocacy—for example, EDOs—not because there is anything wrong with advocacy and not because advocacy might not be useful but because, given that resources are finite, I adopted a policy that we might describe as cases before causes; in other words, actual clients with actual needs in a particular case seemed to me to be a more compelling claim on the Commonwealth's legal assistance dollar than people who wanted to use it to promote political, philosophical, environmental or ideological causes. That is another way in which we are prioritising. Of course, there is the general requirement that only the most needy clients have access to the system through the legal aid commissions and the community legal centres.
We are also prioritising in other ways too. For example, the Commonwealth contributes its proportionate share towards cases under Commonwealth law, most particularly under the Family Law Act where most of the funding goes to cases before the Family Court or the Federal Circuit Court exercising its family law jurisdiction, and we look to the states to contribute most of the funding that goes towards state matters arising under state law. That would seem, according to our notions of federalism, to be an appropriate prioritisation of the Commonwealth's contribution. That being said, in some respects in the legal aid system the Commonwealth pays more than its share vis-a-vis the states and territories. For example, the Commonwealth is responsible for 100 per cent of the Indigenous legal aid funding to Indigenous legal aid providers even though most of the demand under the system from Indigenous clients arises under state and territory law not under Commonwealth law. So those are various ways and various principles according to which we seek to meet the need.
Senator, I do not know if you have read the speech I gave to the conference of community legal centres in early 2013 in Melbourne, but I said then and I say again that I wish there was more money in the system. The demand outstrips the resources. There is no doubt about that. If that is the point you are making, I agree with you, Senator. Unfortunately—and I do not want to be too political about this—the truth is that this is not 2007, when we had no government debt to pay. This is 2015. This is a government that inherited the worst financial situation in the history of the Commonwealth so there is not the money there that there used to be in the golden days of John Howard and Peter Costello.
Senator BILYK: I appreciate the fact that you do acknowledge that demand is increasing while funding is not.
Senator Brandis: No, I did not say 'increasing'; I said that demand outstrips the available resources.
Senator BILYK: Demand is increasing. Are you denying that demand is increasing?
Senator Brandis: No, I am simply objecting to you ascribing to me words I did not say.
Senator BILYK: Okay. Are you denying that demand is increasing?
Senator Brandis: What I said is that the demands on the system do outstrip the available resources and I do wish there was more money but the cupboard is bare. We are spending as much on legal assistance from the Commonwealth as we are able to afford.
Senator BILYK: Do you agree though that demand is increasing?
Senator Brandis: That is a quantitative judgement.
Senator BILYK: There are plenty of articles. I can table them if you want.
Senator Brandis: Lots of people say lots of things in articles—
Senator BILYK: So you do not think demand is increasing for these services?
Senator Brandis: I did not say that, Senator.
Senator BILYK: Well, you can't tell me, 'Yes, it is.' It either is or it is not.
Senator Brandis: I am simply not going to adopt a quantitative judgement without putting some figures on it. That is all.
Senator BILYK: I want to quickly ask one more question with regard to native title claims. Farmers are allowed to apply for this money. There are five industry bodies that you mentioned. Are mining companies and wealthy individuals able to oppose native title claim and apply for this money? Is it means-tested?
Ms Quinn : The way the scheme operates is that, where respondents apply as a group, a means test is not applied. That is about creating an incentive for respondents to group together to make the entire process smoother. If a particular individual was applying in their individual capacity, yes, we would have a look at their means.
Senator BILYK: Can you tell me what that means test might be?
Ms Quinn : It is not a means test per se but it would be an assessment of whether they would struggle to pay their own legal fees.
Senator BILYK: How would that determination be made though? Is there a set of criteria against which you would ask these individuals?
Ms Quinn : We would need to have a look at it. It would be a case-by-case assessment, but I think it very rarely happens. I am happy to check whether it has, in fact, ever happened. I am only aware—
Senator BILYK: Can you check if there is a set of criterion and specific questions that people might be asked with regard to that—
Ms Quinn : There is not a formula, so there is not a benchmark in terms of 'you're in' or 'you're out' like a formal means test, but there would be an assessment of a person's ability to pay.
Senator BILYK: Who would make that judgement?
Ms Quinn : The delegate; the person who is authorised to be the decision maker on the grant. As I said, I am not even sure that it has ever happened. I am only aware of groups of—
Senator BILYK: But there is the potential for it to happen?
Ms Quinn : Yes.
Senator BILYK: Individuals can apply?
Ms Quinn : If they were a respondent, yes.
Senator Brandis: This is a trifling amount of money in the scheme of things, but the policy is, of course, for the money to be given to the neediest respondents.
Senator BILYK: Yes, I think you will also find the Productivity Commission did actually state that demand was increasing, so just to be clear about that. Australian of the Year Rosie Batty stated just after the budget that the federal government certainly sees benefit in investing a large amount of money into pastoral care programs nationally through schools. Although she is not opposed to that, she said:
I am not going to say that is a bad thing to do, but there are many ways that money could be utilised and far more effectively if we are looking at how much money is going into community legal centres and Legal Aid and legal assistance cuts.
Given those concerns, why were you unable to find additional funding for legal assistance?
Senator Brandis: There are several reasons for that. It all relates to the state of the budget. Senator, you are one of the senators who voted against billions of dollars of savings that the government brought before the Senate, including, I might say, some $5 billion worth of savings that the Labor Party in its last term of government had actually proposed. How you can in government say, 'We should make these savings', and then in opposition vote to prevent the new government from making the savings you said should be made is a bit beyond me. If we had that $5 billion of savings that you proposed and are now voting against and stopping our government making, there would be $5 billion more in the budget, wouldn't there?
Senator BILYK: Maybe some things rely on other things, as you know.
Senator Brandis: That is undoubtedly true.
Senator BILYK: Concerns have now been raised by a number of senior legal sources in Queensland under the new partnership agreement that Legal Aid Queensland will have its budget cut to the point where it will no longer be able to fund any family law matters. Are you reconsidering the funding cuts you are imposing in light of the impact this cut would have on families, and women in particular, in your own state?
Senator Brandis: I have not seen those remarks, but there is no prospect at all that adjustments in the funding will result in the Commonwealth making no contribution to legal aid commissions in relation to family law matters, because that is the largest element of the financial assistance budget paid to legal aid commissions.
Senator BILYK: You are aware, aren't you, that 47 per cent of applications filed in the Family Court involve children?
Senator Brandis: I think those figures are roughly right, but that is not the point you were making. The point you were making is you were quoting, without attribution, somebody from Queensland who you alleged said that, as a result of the national partnership agreement, Legal Aid Queensland would not be able to fund any family law matters. That cannot be right.
Senator BILYK: Are you telling me it cannot be right?
Senator Brandis: Yes.
Senator BILYK: Would you like me to table that paper as well?
Senator Brandis: Is it a paper? Who said it?
Senator BILYK: It is a media release—which your side constantly use them in question time as resources.
Senator Brandis: I would just like to know who said it.
Senator BILYK: I will just find it.
Ms Quinn : If I could just add for clarity: the projected funding to legal aid in Queensland is decreasing, but it is decreasing by 1.86 per cent.
Senator BILYK: It is decreasing?
Ms Quinn : It is going from $42.481 million to $41.691 million.
Mr Manning : And thereafter it increases with indexation so, over the five years of the NPA, it would in fact increase by 4.7 per cent. And getting back to the point that they could not afford to fund family law, the proposal is that they would receive $41.69 million of Commonwealth money next year, and we would expect over 80 per cent of that to be spent on family law.
Senator BILYK: I am surprised that we can find so much money for the—
Senator Brandis: Which is why I question who has made the claim, because the claim is preposterous and completely wrong.
Senator BILYK: I am just looking for it.
CHAIR: Senator Bilyk, your time has expired, but if you are almost—
Senator BILYK: Okay, I can look for that. I can come back to that when it is my turn again.
CHAIR: finished, I will give you a few extra minutes.
Senator BILYK: I have just got to find it in all these other comments that people have made with regard to legal aid funding cuts and how atrocious it is.
CHAIR: I will go back to the Labor Party—Senator Collins?
Senator WRIGHT: Chair, I have some questions.
CHAIR: Yes, I am conscious of that.
Senator WRIGHT: Senator Ludlam left understanding that I would be able to have his spot. I think he spoke to you about it.
CHAIR: He did, but—
Senator WRIGHT: You want to go to the Labor Party twice in a row, is that right?
Senator WRIGHT: Why? That does not seem fair to me.
CHAIR: Senator Wright, I am not sure how many times I have to explain the way I run this committee.
Senator WRIGHT: I must be a slow learner, Chair. I have trouble understanding the fairness of it.
CHAIR: Let me try once again. I work on the basis that in the Senate the crossbenchers are about half the size—
Senator WRIGHT: We are not a crossbench; we are a third party, and there are 11 of us in the Senate. There are twice as many as the other crossbenchers, I think, if my maths is right. I am pretty good at maths.
CHAIR: For a start, you have asked for my ruling. I am trying to give it, and you keep interrupting. Learn some manners, please—
Senator WRIGHT: You are not saying things that are accurate.
CHAIR: and learn some meeting procedure. I am just explaining to you yet again: I work on the basis that by rough proportions, a fair proportion, there should be two from the government; two from the major opposition party, the Labor Party; and one from the crossbenchers, which is principally the Greens. Sometimes I err on the side of generosity for the crossbenchers, but that is the chair's prerogative. Today I am doing it this way: I have had Senator Wright twice, Senator Lambie, Senator Xenophon. All have had 15 minutes, which far exceeds their representation in parliament. My ruling is that I am going to go to the Labor Party. I shall come to you next.
Senator WRIGHT: Point of order then: I understand my colleague, Senator Ludlam, approached you and had understood from what you said earlier that you were going to go to him, and he is a member of the party—
CHAIR: I was going to go to him, but he is no longer here.
Senator WRIGHT: No—I understood that he spoke to you and left on the understanding that it would then come to me. I think he would not have left if he had understood that you were going to say, 'No, in that case the crossbenchers can't have that spot.' So there was a misunderstanding there it seems to me.
CHAIR: There is no point of order—Senator Collins?
Senator WRIGHT: So we will go to the opposition twice in a row? I am just very clear on that.
CHAIR: Senator Wright, there is no point of order. You cannot just sit there and yell in these things. If you have a point of order, raise it. You have had a point of order. I have ruled on it. Now we will move on to Senator Collins.
Senator WRIGHT: With respect, I have a point of order.
Senator WRIGHT: I am being told that I am rude. I am just interested in having a fair ruling, because other members of the committee feel free, including Senator O'Sullivan, to make their own comments without having points of order and just making commentary. I am interested in why it is that there is one rule for some people on this committee and not for others. I am happy if you chair fairly. I will accept that, if it is the same rule for everyone.
CHAIR: There is no point of order. Senator Collins.
Senator JACINTA COLLINS: I am hoping I can facilitate the process by being relatively quick on this issue.
CHAIR: That would be great.
Senator JACINTA COLLINS: Senator Brandis, firstly, I would like to thank you for the private briefing that was provided to me on the international surrogacy issue and indeed, if the department helped facilitate the cross-portfolio arrangements, that was appreciated . It was quite constructive. I note that all state attorneys-general last week according to an article in the Adelaide Advertiser on Monday agreed to push for consistent laws on international surrogacy that put the best interests of children first. That is about the only public reporting I can find around what might have been addressed by the attorneys-general.
Senator Brandis: This was on the agenda of the council for law, crime and community safety, Senator Collins, which, as you rightly say, met last Friday to put it shortly, it has been agreed that further work would be done in relation to the matter. We have not achieved a landing yet. The Commonwealth's position is that this is of course a matter for the states but it is on the ministerial council agenda.
Senator JACINTA COLLINS: Apart from it being on the council's agenda, the minister would be aware that from numerous sources, there have been calls for a national inquiry of some sort, I would say, because I could probably cover a range of potential inquiries. Is the government giving that issue any consideration?
Senator Brandis: I think what you may have particularly in mind is the speech that the Chief Judge Pascoe of the Federal—
Senator JACINTA COLLINS: That is only one.
Senator Brandis: That is the one that I paid particular notice of, I must say. I know Chief Judge Pascoe very well. I have a lot of respect for him and I was there when he gave that speech to the family law section of the Law Council in Sydney late last year.
It is something that the government would consider . It is not something that we have decided to do but it is something that the government would consider.
Senator JACINTA COLLINS: The reason I say that it is only one, because I think that one was before us on the last occasion, not that we really had time to cover that particular call. You may now be aware of the recommendations coming forward from the Family Law Council report.
Senator Brandis: Yes.
Senator JACINTA COLLINS: I think their request was that that issue be referred to the Australian Law Reform Commission—that is one variant. The other variant is the call coming from the House of Representatives committee for a national inquiry and, add to that the calls from, as you have said, Chief Justice Pascoe and Chief Justice Diana Bryant. It has been some time now, I am—
Senator Brandis: Yes, it has. We, as you say, are about to have a House of Representatives inquiry.
Senator JACINTA COLLINS: I am not sure that they have determined that they are doing that yet so that may be news to me.
Senator Brandis: I understand that the intention is for the relevant House of Representatives committee to have an inquiry.
Senator JACINTA COLLINS: Okay, so has that been announced now?
Senator Brandis: I do not think that has been announced yet, but it is my expectation that that will occur.
Senator JACINTA COLLINS: Will that be a request from you or is it a self-instigated inquiry? Can you give me some sense of the standing of it?
Senator Brandis: It is something that has been discussed between me and my office and the chair of the relevant committee, there George Christensen.
Senator JACINTA COLLINS: I suppose what I am trying to gauge is that that committee had round-table discussions. As far as I was aware, they had yet to determine whether to take them a further stage into a formalised inquiry and that they were waiting to see what the government's view was about how to proceed with a national inquiry. I am seeking to understand whether in your view that House of Representatives inquiry, as opposed to a referral to the Australian Law Reform Commission, is the path that the government has chosen to take.
Senator Brandis: I do not have a settled view on that, nor do I think that they are necessarily alternatives or inconsistent options. I think it would be a little impertinent of me to say whether I thought this should be a House of Representatives inquiry. That is really a matter for the members of the relevant House of Representatives committee.
Senator JACINTA COLLINS: Ministers have sought that House of Representatives committees conduct inquiries into particular issues over time.
Senator Brandis: But, on this particular issue, as I said a moment ago, it is my understanding that that is proposed by the members of that committee, and they have been discussing the possible terms of reference with my office.
CHAIR: Can I indicate, so that people can plan accordingly, that we are still on group 2 and grossly over time. After Senator Wright and Senator Bilyk ask their questions, rather than allow the questions to continue until exhausted, I will, in accordance with the standing order, have a committee meeting to see if we can move on to group 3 and come back to group 2 in a spillover day at some time to be organised by the committee in the future. I am only giving you that information so that people can organise themselves accordingly. We can then move on to group 3.
Senator BILYK: We may be able to agree with that from our end. Senator Collins has just gone to talk to people because of the time.
CHAIR: We are about to take a break in any case, after which, when Senators Wright and Bilyk have asked their questions, I intend to get the committee to meet to see if, under the standing order, we can stop the questions there, resolve to have a spillover for the rest of group 2 and move on to group 3 so that we have some chance of finishing this program tonight and have all day tomorrow for the program that is listed for tomorrow with a lot of important things.
Proceedings suspended from 21:28 to 21:45
CHAIR: I will call back this meeting of the Senate Legal and Constitutional Affairs Legislation Committee dealing with the 2015-16 budget. The committee is dealing with group 2, civil justice and legal services. I am about to go to Senator Wright. Just so people can adjust themselves accordingly, I indicate that at the end of Senator Wright's 15 minutes, I intend to call a private meeting of the committee, should the committee so decide, to resolve to take other questions from group 2 at a further estimates committee hearing to be determined at a later time, place, date and duration as the committee may decide. I mention that at this stage in fairness to everyone so they know what is happening, which means that, should that motion be passed by the committee, we will pass on to group 3 tonight and then tomorrow's program, whether or not we finish group 3, will be as is printed and we can continue on that basis.
Senator WRIGHT: I have a question about advocacy first of all. I think maybe the Attorney-General might want to answer this one. I understand, under the new national partnerships, the ban on advocacy does not apply to CLCs raising general access to justice issues. Is that an accurate understanding?
Senator Brandis: Let us find the relevant clause of the partnership agreement. I have had to point this out to you before. There is no ban on advocacy; we are simply not funding advocacy.
Senator WRIGHT: So are people still looking for the clause?
Ms Quinn : Yes, sorry, I am just finding the right one.
Senator WRIGHT: I am conscious of the clock ticking. I have only got about 12 minutes left.
Mr Manning : Your general assertion, as I understand it, was that it does not.
Senator WRIGHT: It does not apply? I had a whole lot of advocacy questions. I cannot ask them because I have not got time but I did want to ask about the ban on or the refusal or the unwillingness or the inability to do advocacy on paid Commonwealth time does not apply to CLCs raising general access to justice issues. That is the phrase they have been given. I would like clarity if that is accurate or not.
Ms Quinn : That is correct.
Senator WRIGHT: Is that the phrase that is used in the agreement, 'access to justice issues'?
Ms Quinn : No.
Mr Manning : The position has always been that position throughout the year—or even longer now that we have been dealing with it. The prohibition on using Commonwealth funds for advocacy or lobbying does not apply to situations where a legal assistance provider is giving the benefit of their experience, for example, to a parliamentary committee such as this one.
Senator WRIGHT: That actually was not the answer that I was given the first time I raised this question so it has been a movable feast. It has actually been a really grey area.
Mr Manning : I think that is consistent with what I said at the last estimates. I re-read the comments in preparation—
Senator WRIGHT: I am not talking about the last estimates; I am talking about prior to that when the Attorney-General actually gave an answer that said, in effect, that if people were going to be giving evidence and doing submissions to committees, they would be doing it in their own time.
CHAIR: Is there a question?
Mr Manning : Ms Quinn has found the clause.
Ms Quinn : Apologies, Senator.
Senator Brandis: Senator Wright, please do not paraphrase—
Senator WRIGHT: No, listen. Chair, I was responding to a question from the witness.
CHAIR: This is not a time to interaction. I ask senators and the minister and his team not to involve an interaction. It is a matter for questions and answers.
Senator Brandis: I was merely pointing out that the paraphrase of my remarks, which are not in direct speech, is not an accurate paraphrase. If Senator Wright wishes to attribute words to me, would she do me the courtesy of quoting verbatim from the Hansard.
Senator WRIGHT: I am happy to go back and do that.
CHAIR: That is a fair point. Questions, Senator Wright, please.
Senator WRIGHT: So what is the phrase and what does it mean?
Senator Brandis: You mean the clause.
Senator WRIGHT: I mean the phrase 'access to justice' or whatever it is.
Ms Quinn : There is a schedule to the proposed national partnership agreement under Commonwealth priorities and eligibility principles. It says:
Commonwealth funding should not be used to lobby governments or to engage in public campaigns. Lobbying does not include where a legal assistance service provider makes a submission to a government or parliamentary body to provide factual information and/or advice with a focus on systemic issues affecting access to justice.
Senator WRIGHT: That is a clear definition now, thank you. Access to justice issues, would that include then being able to express concern about funding shortfalls if it means that CLCs are turning away hundreds of clients and preventing people from getting access to justice?
Senator Brandis: I think it is very hard to ask that question in the abstract. The description is a functional description as well as a topical description as well as a subject matter description. I think we had better let the words speak for themselves rather than invite officials to gloss them.
Senator WRIGHT: Does this not just underline what a grey area it is and how difficult it will be for CLCs to know whether or not they are acting in accordance with their agreement or not.
Senator BRANDIS: Then they should err on the side of caution.
Senator WRIGHT: Is there a risk that that would have a chilling effect on their activities?
Senator Brandis: I do not know; I am not a sociologist.
Senator WRIGHT: What I am asking about is: surely, if you are actually imposing restrictions on the activities that they can do in terms of Commonwealth money, it needs to be clear, does it not?
Senator Brandis: We are defining what the money is to be spent for. It is also not to be spent for funding wealthy people. It is also not to be spent for funding wealthy corporations. It is to be spent on the people who need it most so that they get representation which they otherwise could not afford. And that is defined by a series of exclusions—nothing remarkable about that.
Senator WRIGHT: So as a lawyer, Attorney-General, you would be in agreement with the principle of clarity and not having ambiguity around terms, would you not?
Senator Brandis: Of course. I practised law for more than 16 years and I did a lot of advocacy in that 16 years, particularly in the Liberal Party, on public issues and I did on my own time.
Senator WRIGHT: That is good to hear. I am going to come to the optional protocol to the convention against torture now. And then I am hoping to get time for issues around Aboriginal and Torres Strait Islander legal service funding—just so people can be ready for those questions—and incarceration rates of Aboriginal people in Australia.
Coming to the OPCAT questions, as I understand it, the Commonwealth developed model legislation to implement the OPCAT in consultation with the states and territories and received notification from states and territories that they would progress the model bill—if I am wrong, please correct me. If that is the case, I am interested in which states and territories have introduced legislation and whether any states and territories have passed legislation?
Mr Pfitzner : I understand that Tasmania, the ACT and the Northern Territory have introduced that legislation but I understand none of the three of them have passed it.
Senator WRIGHT: Have any states advised that they will not introduce legislation at this point?
Mr Pfitzner : They have not advised us, no.
Senator WRIGHT: So no states or territories have advised you of that?
Mr Pfitzner : No.
Senator WRIGHT: Can I ask when the matter will be put on the agenda for discussion by the body now known as the Law Crime and Community Safety Council?
Mr Pfitzner : That is a matter for the council, but, at this point, it is not scheduled to be discussed at that group.
Senator WRIGHT: How is the decision made as to what will be on the agenda? We do not seem to have the Attorney-General here now. I am interested in whether he could answer that question. That would seem to be a matter for governments. I might come back to that. Evidence and experience from comparable jurisdictions which have already ratified and implemented OPCAT, such as the United Kingdom, show that independent expectorates have tangible social and economic benefits. This was noted in the fifth annual report of the UK's national preventive mechanism in 2013-14. I am interested if the government has undertaken a review of the social and economic benefits of ratifying OPCAT with particular reference to comparable jurisdictions?
Mr Pfitzner : No.
Senator WRIGHT: Is there any intention to do that, that you are aware of?
Mr Pfitzner : Not at this point.
Senator WRIGHT: So the department is not aware of that? Attorney, can I ask if you have any intention?
Senator Brandis: No, I do not.
Senator WRIGHT: I come now to the new National Partnership on Indigenous Legal Assistance Services. Has there been any assessment of the impact of proposed funding reductions to ATSILS and NATSILS on Aboriginal and Torres Strait Islanders people's interactions with the justice system, particularly with reference to increases in imprisonment rates, legal representation of Aboriginal and Torres Strait Islander people in courts, education, and law reform or any other areas? Has there been any modelling or any assessment?
Mr Manning : I might just clarify one point. The national partnership agreement, which we have been speaking about this evening, does not include the Indigenous Legal Assistance Program. Rather, the proposal is to continue to fund directly those providers.
In relation to the funding amounts, I think Ms Quinn said earlier we have developed a revised funding allocation model. So that process we spoke about earlier of determining relative need specifically in relation to Aboriginal and Torres Strait Islanders in each jurisdictions has been gone through and thus the ongoing funding that is available from the program has been allocated according to that need.
In relation to the funding reduction you were referring to, there had previously been two years of additional funding, which was always due to expire at the end of this financial year and is expiring at the end of this financial year. There is no reduction in the ongoing funding in the program, which is of course increasing due to indexation.
Senator WRIGHT: My understanding is that South Australia's Aboriginal Legal Rights Movement will be about $300,000 worse off and may struggle to continue to deliver its child protection services. The Law Society of South Australia said that is due to a cut of $138,000 and a cessation of $170,000 in one-off funding. First of all, is it correct that the Aboriginal Legal Rights Movement in South Australia will be receiving funding cuts in those figures?
Mr Manning : They, like all of the ATSILS, will no longer receive the two years of additional funding due to the fact that the two years are up. They are not getting a funding cut in relation to the ongoing funding. In fact, their percentage of the ongoing funding is going up six per cent. So, overall, yes, there is less money offered to them next year than they had in total this year, but that is because of the expiration of time limited additional funding.
Senator WRIGHT: So for whatever reason—whether we call it a cut—there is a reduction anyway from what they have had over the last two years. I am interested in whether any assessment of the impact of that has been done, particularly on issues like legal representation and the potential increase in imprisonment rates.
Mr Manning : An assessment is done in the funding allocation model in the sense that we have gone out to the sector, consulted with them about the things that are most driving legal need and built them into the funding allocation model. In a sense, in the outcome of the funding allocation model, it represents an assessment of relative need—
Senator WRIGHT: I understand that. That is not really my question though.
Mr Manning : In relation to the other aspect of the assessment—has there been an assessment done about what that will mean for them on the ground—the Commonwealth has not done that but presumably the service provider is doing that.
Senator WRIGHT: We have people all around Australia talking about increasing incarceration rates of Aboriginal people, every year, going up. People are expressing concern about it. The South Australian Chief Justice described it as a shame of our criminal justice system and wider community. Given that, have there been any projections about what is likely to happen from the reductions in funding?
Mr Manning : There has not been modelling or projections in the sense you are raising, Senator. I might add one other factor, though, that is relevant to the national partnership agreement, which was the service planning element we discussed earlier. It is a requirement both in the NPA for the state government, CLCs and legal aid commissions—all of whom have a role to play in relation to Aboriginal citizens of their respective states and also in relation to the ATSILS, whom we fund. They will be part of that service planning and so overall the expectation is that within a jurisdiction they will be looking at where the relative need is and who can allocate resources to best try to meet that need within the finite amount of money that is available.
Senator WRIGHT: I would like to ask you about a specific service, the New South Wales/ACT Aboriginal Legal Service's custody notification system. On Monday another Aboriginal man died in police custody in Darwin, and yet we have models in place that have been shown to be effective at preventing Aboriginal deaths in custody, and the service I have just asked you about—and I am going to ask you about the funding of that—has successfully prevented any deaths in custody in the ACT and New South Wales since its commencement. Is it a fact that funding for that service, about $500,000 a year, will cease as of 1 July?
Ms Quinn : No, Senator, it is a slightly more nuanced outcome than that. The custody notification service, in the form that it operates in New South Wales, is slightly different in that under New South Wales state regulation the Aboriginal legal service that is 100 per cent Commonwealth funded, and it is actually prescribed under that regulation that the police must contact that specific service. To date, the Commonwealth has been able to, to varying degrees, find one-off funding for that Aboriginal legal service over time. What we have done for this next five-year funding offer is allocate all of the available Indigenous legal assistance funding under the funding allocation model. So all of the money that we can possibly get out to services is going out to services. So while the ALS NSW/ACT will likely allocate some of that funding to support of the custody notification service, it is also a fact that in all states and territories there is a degree of custody notification occurring now.
CHAIR: I declare a short suspension of the committee for two minutes while the committee meets in private session.
CHAIR: The committee is resumed. We are now moving on to group 3. The committee has decided to have a spillover date for the rest of group 2. One senator still has questions on group 2, so we will reconvene at a time and date to be fixed—which we will, in the normal course of events, do in conjunction with the department.
Senator JACINTA COLLINS: Firstly, I very quickly want to touch on the Countering Violent Extremism Program. And then, for the department's benefit, I will be moving on to the new antiterrorism portfolio. Can you confirm for me concerns that have been raised—and we have had sessions in estimates a couple of times touching on these issues—that the funds available for organisations dealing with countering violent extremism were not available for the period July 2014 until 2 May 2015?
Ms Lowe : During the financial year 2014-15, a number of projects that had already been funded continued during that period. The difference was that in August of last year a decision was made, and announcements were made, about the fact that the focus of the Countering Violent Extremism Program would be shifting from a community approach, so funds under the previous Building Community Resilience grants program had been targeted towards building community capacity—
Senator JACINTA COLLINS: Some of those issues we have covered in the past, but what I am seeking to understand, and you seem to have contradicted the concerns that have been raised with us, is the previous program that was funded for four years concluded in July 2014. The new funds were not made available until 2 May 2015. But you said a moment ago that some funding continued. Can you give me some information about what that funding was, where it came from—because obviously the program had not been re-funded—and what the quantum of those funds was? I do not want you to name individual organisations, for the same reason that we currently do not, but I would like to know what quantum of funds was made available during that period.
Ms Lowe : As to quantum of funds, I would actually have to take that on notice, but the funds during that period of time came from departmental funding, so we had other funds available to us. While that particular program had come to an end, we were able to continue to fund organisations. You are quite correct: there are certain organisations that do not want to be publicly named, but there are others that have come out and spoken about the work that they have continued to do with the Attorney-General's Department during that period of time. The one that I would particularly name, because they have taken the initiative and have quite a public profile, is the Australian Multicultural Foundation.
Senator JACINTA COLLINS: If you can provide me on notice with the quantum—
Ms Lowe : Certainly.
Senator JACINTA COLLINS: that will give me some benchmark to compare the complaints that we are receiving about people who did not receive ongoing funding. We will be able to see the extent to which the departmental funds matched the previous funds in that period between the Countering Violent Extremism program and the new program funds which started flowing on 2 May.
Ms Lowe : One program that is often not particularly focused on is an amount of money that is allocated to the Australia-New Zealand Counter-Terrorism Committee, which is also a source of funding for community programs, in partnership with government. That is $2 million of the ANZCTC funding that is allocated to CVE-specific projects. That continued without being halted during that whole period of time, in a number of community programs, where they work in partnership with government and were funded during that period of time.
Senator JACINTA COLLINS: In that case, they would have been ongoing arrangements.
Ms Lowe : No. It is reassessed every year, so it is not multiyear funding. It was reassessed each year.
Senator JACINTA COLLINS: I understand that, but the program was an ongoing arrangement. I am more concerned about the shift from the previous Countering Violent Extremism program to the new program and the disruption in between and quantifying the extent of that. If you can give me that information about what departmental funding was made available, I will be able to compare what was previously available and have a sense of the weight of the concerns that have been raised with us.
Attorney, I am really not sure of the extent to which these issues pertain to you as Attorney, but there is quite a degree of confusion around the new anti-terrorism portfolio and allied arrangements. I will give you a description of the first aspect of that that I encountered, and certainly there have been a lot of press reports about it as well. The first media report, which is probably inaccurate, from things I have seen subsequently, suggested that Philip Ruddock was going to be responsible for the new citizenship legislation. I pondered how that was possible, since he was not a member of the executive, for starters. It seems now, from what we know—
Senator Brandis: Given that we are up against the time, would it speed things up if I explained the arrangements to you, Senator?
Senator JACINTA COLLINS: Sure.
Senator Brandis: As you know, on Monday and Tuesday, the Prime Minister made a number of important announcements in relation to strengthening Australia's counter-terrorism response. Some of the most important of those arrangements were in relation to governance and ministerial responsibilities. I will deal with both sets of announcements together, because they are, in a sense, part of a package.
Senator JACINTA COLLINS: I am just conscious that this is part of my 10 minutes and so, Chair, I will not have the opportunity—
Senator Brandis: I will be as quick as I can. Hitherto, the Attorney-General's portfolio comprised two ministers: me and the Minister for Justice, Michael Keenan, who reported to me. Now, the Attorney-General's portfolio will comprise three frontbench positions: me, Mr Keenan, who will continue to report to me, and Senator Concetta Fierravanti-Wells who, as well as being the Parliamentary Secretary to the Minister for Social Services, is also the Parliamentary Secretary to the Attorney-General. In relation to those aspects of the Attorney-General's portfolio, she will also report to me. As well, Mr Keenan has been sworn as the Minister Assisting the Prime Minister on Counter-Terrorism. I will explain what that means in a moment, but in that respect he will report directly to the Prime Minister.
Mr Keenan's two particular functions are to be, at the political level, the minister responsible for counter-terrorism coordination; and his position is the parallel political position of Mr Greg Moriarty, who will be an associate secretary within the Department of the Prime Minister and Cabinet. Mr Moriarty will be the Counter-Terrorism Coordinator which means, to use a phrase the Prime Minister has used, he will have a helicopter view of all the different counter-terrorism functions across departments and agencies.
As you probably know, Senator, ASIO is in the Attorney-General's Department. That is the principal national security agency. ASIS, which is the foreign intelligence agency, is in DFAT. ASD and AGO are in the Defence department, and ONA, which is the Office of National Assessments, which is an assessor and analyst rather than a collector, is in the Department of the Prime Minister and Cabinet. All of those agencies contribute to the overall counter-terrorism intelligence framework of the government, and then there are the law-enforcement agencies, particularly the Australian Federal Police, which also sit within the Attorney-General's Department. Because not all of the agencies with a role in the counter-terrorism response sit within the one department, the Prime Minister took the view, at my recommendation, that there should be an individual above all within PM&C whose role is to coordinate all, and his ministerial equivalent is Mr Keenan. That is the first aspect of Mr Keenan's augmented role. Secondly, Mr Keenan has been given particular responsibility for CVE programs run by the Attorney-General's Department, and in that respect he will continue to report to me. Senator Fierravanti-Wells will also have responsibility for the multicultural aspect, or the multicultural dimension, of CVE, and community cohesion and engagement generally. She will report to me insofar as those programs are delivered by the Attorney-General's portfolio, and to Mr Morrison insofar as those social cohesion programs are delivered through the Department of Social Services. That is the structure of the new architecture.
Senator JACINTA COLLINS: I would presume you would also add to that picture the other PM&C agencies such as INSLM—the ones we were dealing with on Monday, if I recall. Are they in this picture too?
Senator Brandis: They are not really agencies that conduct operations. If you mean INSLM and IGIS and offices like that, they are not within the Australian intelligence community as it is understood in the Intelligence Services Act and in the ASIO Act. They are agencies that scrutinise or safeguard the operation of the agencies within the Australian intelligence community.
Senator JACINTA COLLINS: Yes, and very important elements of—
Senator Brandis: Sure, but they are not part of the counter-terrorism fight in an operational sense in the way that, for example, ASIO is.
Senator JACINTA COLLINS: Then Mr Keenan's role is operational, is it?
Senator Brandis: I think it is best to describe the agencies as having operational roles—so ASIO has an operational role and the Australian Federal Police have an operational role; Mr Keenan's role is ministerial. As my junior minister, he has particular responsibility for the CVE programs delivered through the Attorney-General's Department. He is also the minister assisting the Prime Minister by being the ministerial equivalent of Mr Moraitis—that is, the person who is responsible for looking across the whole of government and ensuring that all of the various counter-terrorism functions of government work well together.
Senator JACINTA COLLINS: Does his role also include the immigration measures—for example, the citizenship measures that the government is promoting?
Senator Brandis: The lead agency there is the Department of Immigration and Border Protection and the lead minister is Mr Dutton.
Senator JACINTA COLLINS: Okay, so Mr Keenan has no responsibilities for a counter-terrorism response that deals with citizenship issues?
Senator Brandis: Only in the limited sense that, as I said before, his responsibilities to the Prime Minister as minister assisting in counterterrorism means that insofar as the national counter-terrorism coordinator looks across the whole of government, at all dimensions of the counter-terrorism response, then, to the extent to which immigration and border protection is an element of that, Mr Moraitis and, at a ministerial level, Mr Keenan have a role there. Mr Keenan does not have an operational role because Mr Moraitis does not have an operational role in relation to coordination.
CHAIR: Okay. I am afraid I will have to leave it there. I am finding that very interesting as well. Senator Collins, we can pursue that further.
Senator O'SULLIVAN: Are you able to advise the committee on the status of the Tribunals Amalgamation Bill?
Senator Brandis: Yes. The Tribunals Amalgamation Bill is through the parliament and had its third reading in the last sitting fortnight. It is a very important piece of legislation. The new Administrative Appeals Tribunal—bringing the functions of the Social Security Appeals Tribunal, and the Migration and Refugee Review Tribunals within the Administrative Appeals Tribunal—will commence from 1 July with one exception—that is, the veterans' affairs review tribunal. That means that all of the merits review tribunals of the Commonwealth will be within the single tribunal, the Administrative Appeals Tribunal. I take this opportunity, Senator O'Sullivan, to thank the President of the Administrative Appeals Tribunal, the Hon. Justice Duncan Kerr, and his executive for the enormous amount of work that they have done on this very major reform of Australian administrative law and for the close cooperation they have given to my office and department.
CHAIR: Thank you, Minister. Senator O'Sullivan, that slipped beyond me; it is not really a question to this section of estimates. If it were a question of estimates, it might have been relevant in the tribunal matter, but certainly not here. I am sure you will not be pursuing that in this section. We are dealing with National Security and Criminal Justice Group.
Senator O'SULLIVAN: Just bear with me—
CHAIR: And the Australian government disaster funding special support payments, which I know you have an interest in.
Senator JACINTA COLLINS: Perhaps while Senator O'Sullivan gathers his thoughts, I could ask my next question?
CHAIR: Senator O'Sullivan, you still have eight minutes to go. I will return to Senator Bilyk. But if Senator Bilyk—
Senator BILYK: I am happy to go to Senator Collins.
CHAIR: Okay. Senator Collins, you have 10 minutes and Senator O'Sullivan has another eight minutes later.
Senator JACINTA COLLINS: So Mr Keenan remains a junior minister; he is in the outer ministry—is that correct?
Senator Brandis: That is right.
Senator JACINTA COLLINS: Attorney, it has been reported that cabinet was in revolt over the changes to citizenship law proposed by the immigration minister. Fairfax has reported that you opposed the Prime Minister on this issue. Can you confirm that?
Senator Brandis: I have read some reports; I think those reports are fanciful. I do not comment on cabinet deliberations, as you know.
Senator JACINTA COLLINS: But the reports are fanciful?
Senator Brandis: Yes.
Senator JACINTA COLLINS: Do you support the proposal floated in the government's so-called discussion paper, which I think was Philip Ruddock's special envoy type role on citizenship, that Australia follow the UK in allowing the minister to cancel the Australian citizenship of not only dual nationals but also Australian citizens who are able to seek foreign citizenship?
Senator Brandis: This is a matter before government at the moment. We are releasing a discussion paper because, as the Prime Minister has said, we want to have a conversation among the Australian community about not only the rights but also the responsibilities and obligations that are attached to being an Australian citizen and the consequences in which that right might be forfeit. It would be impertinent of me to get ahead of the national conversation about that.
Senator JACINTA COLLINS: Far be it for you to be impertinent, Attorney! Would Australia be precluded from implementing the UK approach via our commitments under the United Nations Convention on the Reduction of Statelessness? Would we need to lodge a reservation, and what would your view be about lodging such a reservation?
Senator Brandis: The 'No' proposal that the government is raising even for the purposes of community discussion would not have the effect of rendering anyone stateless—that is a red line—and it has been made very clear by the Prime Minister, by the Minister for Immigration and Border Protection and by me, that under no circumstances would any measure that we were to adopt have the effect of rendering someone stateless.
Senator JACINTA COLLINS: What I am asking is: could that be a consequence of adopting the UK approach?
Senator Brandis: The only way I can do justice to your question is to say that we have made it explicit in the discussion paper that there is no proposal under consideration that could have the effect of rendering a person stateless.
Senator JACINTA COLLINS: So does it follow from that then that there would be no proposal to lodge a reservation in relation to the convention?
Senator Brandis: None that I am aware of, and nor could I see how that would be necessary because of the reason that I just gave—that is, under no circumstances are we contemplating any possible measure that could render a person stateless.
Senator JACINTA COLLINS: You mentioned earlier that it was your suggestion, I think, to the Prime Minister that he make these new arrangements as they are.
Senator Brandis: We had a number of conversations about it. I am not saying that I was the only contributor to those conversations. There was, as you know, a departmental review led by PM&C, but I was certainly one of the advocates of these arrangements, particularly the CVE function. I have been of the view for quite a while that the importance of the CVE function should be elevated, so asking Mr Keenan to take particular responsibility for it as part of his portfolio within the Attorney-General's broader portfolio is something that I am very, very strongly supportive of.
Senator JACINTA COLLINS: Are there any elements of what, to date, has been dealt with within the AG's portfolio that have moved over to Prime Minister and Cabinet?
Senator Brandis: No, but of course Mr Moraitis's role, as an associate secretary within PM&C, is a new role, but there are no functions that had previously been within the Attorney-General's Department that have been shifted, no.
Senator JACINTA COLLINS: Was the Attorney-General's Department doing any of the previous cross-portfolio work that now will be managed by PM&C?
Senator Brandis: No. I think that mischaracterises it. There is a pre-existing set of interdepartmental arrangements in relation to counterterrorism at both a departmental level and at an agency level. There was not previously an officer in any department who had what Mr Moraitis will have—that is, a helicopter view of all the counter-terrorism operations across government—and now there is.
Senator JACINTA COLLINS: My question was asking whether that was a function that the AG's was attempting to perform in the absence of other arrangements to date.
Senator Brandis: There is no doubt that the Attorney-General's Department is the lead department when it comes to national security. That has never been in doubt.
Senator JACINTA COLLINS: But that has changed now, hasn't it?
Senator Brandis: No, it has not. We have, within PM&C, an associate secretary whose remit extends beyond the Attorney-General's department to other departments that have responsibility for aspects of counter-terrorism. Those include: ASIS, which is a DFAT agency; ASD and AGO, which are Department of Defence agencies; and the Department of Immigration and Border Protection—as you rightly say—which, obviously, in terms of keeping potential terrorists out of the country, has an important role. Mr Moriarty has a cross-government, cross-portfolio, and cross-agency responsibility to make sure that all of those moving parts work as well as they can.
Senator JACINTA COLLINS: In that sense, doesn't it make the lead agency superfluous?
Senator Brandis: But he is not an agency. He is a person—
Senator JACINTA COLLINS: PM&C is the agency.
Senator Brandis: Mr Moriarty is an associate secretary within PM&C, but his role is a coordinating role in the counter-terrorism area.
Senator JACINTA COLLINS: Yes, so the need for Attorney-General's to play the lead agency role has been superseded by the new arrangements in PM&C.
Senator Brandis: I think that is wrong for a couple of reasons. Being a coordinator is not to be the lead agency or the lead official—that is the first point to be made. Secondly, national security is a much broader conception than counter-terrorism. Counter-terrorism is an extremely important element of national security but it is not the only element. Other very important elements of national security are counterinsurgency, counterespionage and cybersecurity.
Senator JACINTA COLLINS: They clearly remain, with the A-G's being the lead agency. I would like to understand what has happened to Margot McCarthy's role in this new arrangement.
Senator Brandis: I think there has been a lot of misunderstanding of Ms McCarthy's role and I think that understanding had its genesis in a question that a particular journalist asked the Prime Minister at his press conference on Monday. Ms McCarthy was a senior official within the Department of Prime Minister and Cabinet. Her designation was Associate Secretary for National Security and International Policy. Senator Collins, as I am sure you know, PM&C, being the central coordinating department of the government, has interests across the whole of government. It has interests in economic policy, fiscal policy, social policy, defence policy and also it has always had an interest in national security policy. Dr McCarthy, in that capacity, was the principal adviser within PM&C in that area of policy.
Senator JACINTA COLLINS: Her role was previously that of national security adviser, wasn't it?
Senator Brandis: I have told you what her designation is.
Senator JACINTA COLLINS: Currently.
Senator Brandis: The Prime Minister has his own national security adviser, Dr Shearer, who is a senior adviser within the Prime Minister's office.
Senator JACINTA COLLINS: Senator Fierravanti-Wells's role will include dealing with multicultural communities—
Senator Brandis: Yes.
Senator JACINTA COLLINS: with respect to countervailing the terrorism space?
Senator Brandis: Yes, it includes that.
Senator JACINTA COLLINS: She will work across Minister Morrison's department but in a different role?
Senator Brandis: Senator Collins, there is an obvious fit between the social cohesion programs that are run through the Department of Social Services and the more specific CVE programs that are run through the Attorney-General's department. It is a sad but unavoidable fact that a lot of activity of concern, shall we say, including the recruitment of foreign fighters within Australia, does occur within some ethnic communities. As I have said many times, ethnic communities, particuarly the Muslim community, are the victims of predation by those who would seek—
Senator JACINTA COLLINS: Sorry, of?
Senator Brandis: Predation—predatory behaviour by those who would seek to entice their youngsters into becoming foreign fighters or otherwise active on behalf of ISIL in the Australian homeland. Obviously, the parliamentary secretary with responsibility for social cohesion, who has been asked to take a particular interest in ethnic communities, will have a role complementing the lead minister responsible for CVE programs delivered into those same communities—namely, Mr Keenan. In both respects, that is under the auspices of the Attorney-General's portfolio.
CHAIR: Thanks, Minister. We will have to move on now: Senator O'Sullivan for eight minutes.
Senator O'SULLIVAN: I have some questions I want to direct in relation to the government disaster financial support payments that are made. Is it fair to say there has been some activity in this space with some decisions being taken recently by government? In particular, I understand some of the funding arrangements have been adjusted to invest in mitigation with capital works to try and future-proof some public infrastructure assets from further impact by natural disasters. Are you able to give us some detail around that?
Ms K Jones : Yes, I can. You may be aware that the Productivity Commission undertook an inquiry into natural disaster funding arrangements. It conducted extensive consultations around the country and received an enormous number of submissions relating to how we manage and fund disaster matters in Australia. The Productivity Commission's report was tabled in recent weeks and made a range of recommendations around recovery payments—
Senator O'SULLIVAN: Some of which frightened the bloomers off some of my people up in Queensland.
Ms K Jones : The government has looked at some of the recommendations and not adopted all of them. I think one of the critical features of the Productivity Commission's findings was that we certainly need to be investing significantly more in mitigation to try and prevent damage associated with natural disasters rather than having incentives for a payment system that incentivises rebuilding infrastructure in places that are quite vulnerable to disaster events.
The Minister for Justice announced at the time that the Productivity Commission report was tabled that he would embark on consultation with the states and territories, which has been occurring over the last two to three weeks around the country with all states and territories, to look at a range of issues associated with addressing some of the fundamental issues that were raised in the Productivity Commission report. In particular, it is looking at a new way of being able to assess the impact of disasters, so trying to look at a model for developing an upfront impact assessment so that it would provide greater flexibility for the states in terms of how they manage their response to disaster events—because they are the level of government that is closer to the actual event and better placed to be able to manage that—and to reduce some of the red tape and bureaucracy that is associated with the current framework.
Also, it is looking at ways in which more funding can be directed towards mitigation in the process using the expertise that is there at the state and local levels to be able to identify appropriate projects and initiatives for mitigation.
Senator O'SULLIVAN: So, with the mitigation, am I correct in assuming that the formula—or the quantum of the payment—to the state will reflect the impact of the disaster but a percentage of it will be tied to expenditure to do with mitigation? Is that how this will work?
Ms K Jones : Part of the model we have been consulting with the states and territories about is having some element of top-up funding. So, once an event has happened, if the relevant thresholds have been met, in terms of bringing into play Commonwealth assistance, we are looking at—on top of the recovery funding payments—having a top-up of mitigation and developing a model that can be applied across the board in that state for—
Senator O'SULLIVAN: Let's say we had an event, and the threshold remains at $240,000 or $250,000—you need to—
Ms K Jones : That is what is proposed.
Senator O'SULLIVAN: be congratulated for that decision; anything different would have had a massive impact on many of the small regional shires. Anyway—for example, let's say there is an event that has $3 million worth of damage, the result of a natural disaster event, and it is assessed at that. I understand there has been a slight adjustment in the formula. Where does the mitigation occur—what would the formula tell us in terms of what amount of that $3 million was to be applied to mitigation?
Ms K Jones : We are in the process of consulting with the states and territories and developing this model. So we have not got a final model yet that has been agreed to. But the idea would be that there are two thresholds in relation to recovery payments. I will defer to my colleague who is quite the expert on the proposed model, in a minute. It is not when a set amount of money has been spent; it is when a percentage has been reimbursed by the Commonwealth. I might ask Ms Chard to add some more detail to that.
Ms Chard : There are two different thresholds at play with recovery funding currently. The first threshold, the $240,000 that you referred to, relates to an individual event and whether or not that individual event is actually counted when we are evaluating the recovery cost for a state. Commonwealth funding then comes into play when the accumulated expenditure of a state reaches 0.225 per cent of the state's expenditure. At that point the Commonwealth, under the current arrangements, starts to contribute 50 per cent of a state's costs. When those accumulated costs reach a second threshold, which is approximately 0.3 per cent of state revenue, the Commonwealth currently reimburses up to 75 per cent of the state's recovery cost. So, under the new proposed model, we are exploring with the states and territories the potential to introduce a top-up in mitigation funding when the state hits that first threshold of 0.225 per cent. That would reflect a commensurate reduction in the cost sharing rate at the second threshold. So you would see—
Senator O'SULLIVAN: Of five per cent?
Ms Chard : Of approximately five per cent. So you would see the overall quantum of funding remaining the same but a minor reduction at that top threshold.
Senator O'SULLIVAN: But the mitigation funding—let's say it reflects five per cent—is at the disposal of the state to spend in the capital works that are undertaken to do the repairs. It is not additional money; it is what they would have received, but now it is tied to mitigation work. Is that correct?
Ms Chard : That is correct. But nothing has actually been settled with these models; they are proposals we are consulting with states and territories with at the moment.
CHAIR: We might have to leave it there, Senator O'Sullivan, and come back to it later sometime.
Senator O'SULLIVAN: Thank you.
CHAIR: Senator Wright.
Senator WRIGHT: Thank you. I have questions in relation to the Living Safe Together grants program. How many applications were received for Living Safe Together grant funding, and how many of those applications were successful?
Ms Lowe : We received approximately 100 applications and, of those applications, 34 have been successful.
Senator WRIGHT: You said approximately 100. If you could confirm that figure on notice that would be good, thanks.
Ms C Jones : There were 95 applications received.
Senator WRIGHT: I can do my maths. I was going to ask how many were rejected, but presumably the answer is 95 minus 34.
Ms C Jones : Yes. I will just add to that. There were a number of applications received from organisations nonetheless considered to be significant stakeholders. We will continue to work with those stakeholders where a need might be identified to build particular capacity to support the broader objectives of the Living Safe Together program.
Senator WRIGHT: Can I have a state-by-state breakdown of successful and unsuccessful applications including the names of the organisations?
Ms C Jones : A number of organisations have identified that they wanted to have their details protected, due to the sensitivity of the work, so we are not in a position to provide the names of all of the organisations that were successful or unsuccessful. We can provide a breakdown by state of the number of successful applications. I would take that on notice.
Senator WRIGHT: If you could do that, that would be good. Thank you.
Ms Lowe : Senator, if it would assist you, we could give you a description of the kinds of activities that will be funded rather than an identification of the groups.
Senator WRIGHT: Perhaps on notice, I would be happy with that. But not now, because I have some questions I need to get through now. But I appreciate that some organisations have requested confidentiality. But, where you can provide information, I would like that. I can see that the Living Safe Together grant funding was a one-off funding round. What funding is now available to support community led preventive projects?
Ms C Jones : It is a first wave of funding as opposed to simply being a one-off with no intent of further capacity building. The purpose of this grant was to help us identify the range of community organisations out there with whom we could partner in terms of services to individuals who might be on a radicalisation trajectory to violent extremism. This first wave is about helping us get the landscape, if you like—working out which organisations are in a position to do that work. Once we start to build that picture, the next step is to identify where there are gaps—in locations or services. Then we need to consider what kind of further capacity-building funding we might need to provide in order to support filling those gaps.
Senator WRIGHT: Do you know if the government is considering another round of grants in the future? I am not trying to—I am just trying to be very clear.
Ms C Jones : It may take the form of a grants program, but what it needs to ensure is that we have the right services available in the right locations. So it is subject to current consideration once we have a better picture of what organisations there are and the capacity that we have already—where the gaps might be, and therefore what kind of capacity building and funding model we might use next time around.
Senator WRIGHT: Thank you. Has any funding been redirected from the Building Resilient Communities Program and the associated Living Safe Together grants to intelligence agencies or security agencies?
Ms C Jones : No.
Ms Lowe : No.
Senator WRIGHT: What research or advice has been drawn on in relation to the effectiveness of community led initiatives in countering violent extremism?
Ms Lowe : It has been a feature of both the Building Community Resilience Grants Program and the current Living Safe Together grants programs that successful organisations are required to meet a series of milestones. Those milestones are largely around delivering certain products or breaching certain milestones or expending a certain amount of funds at different points in the program. What we then do is assess the effectiveness of the particular project at the end of the program. To assist us, we particularly work with states and territories that are in a really good position to assess the impact of the programs within their particular jurisdiction. We seek a range of inputs to assist us in assessing the effectiveness of the program.
For the Building Community Resilience grants, communities were particularly aware of the fact that ongoing funding was dependent on the fact that they had delivered the first program in a way that was effective and could demonstrate that effectiveness. For the current grants program, the Living Safe Together Program, as Ms Jones has explained, it would be really important that as a result of that program we are able to assess gaps and identify gaps for the purpose of future funding.
Senator WRIGHT: You are talking, essentially, about evaluation. What I am interested in is what research or advice has the government drawn on prior to—in a sense, what do we know about what are the features of effective programs and how you decide then what you are going to fund and what you are not going to fund?
Ms K Jones : We have started to do an increasing amount of work with various academics and other organisations. Under the Australia-New Zealand Counter-Terrorism Committee, there is a subcommittee called the CVE subcommittee, of which I am one of the co-chairs. Through that subcommittee, we have funded a range of organisations to assist in evaluating the effectiveness of different strategies. We have looked at international experience to identify what are the different models or programs or initiatives that have worked in other countries. I will also ask the other Catherine Jones to just mention some work we have got with a research council where we get input from them as well.
Ms C Jones : We have established a research panel through our national Countering Violent Extremism subcommittee also through which we engage with a range of academic institutions within Australia to procure research to meet particular research gaps. We are also noting the international challenge: there are a range of us all facing similar challenges around the globe at the moment. We have several fora through which we engage on international best practice. One is the Global Counterterrorism Forum which has established a CVE centre of excellence based in the UAE called Hedayah, which is collating global research underpinning different approaches to this particular challenge. We also, through the CVE subcommittee that Katherine mentioned, conducted a best practice comparison of nine international approaches. That then guided the development of our new programs that we are putting in place now.
Senator WRIGHT: Thank you.
Senator LAMBIE: Attorney-General, seven months ago I told the Senate in speaking to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 that new laws regarding a toughening of Australian citizenship should be considered. In my speech, I said:
These new laws could strip people of their Australian citizenship, right to vote, right to receive Australian taxpayers' money and, in some cases, deport or jail those who clearly have allegiance, obedience, or adherence to a hostile foreign power.
Did my speech, hard stance and questions I asked you about citizenship, allegiances, divided loyalties, sedition and treason influence recent cabinet discussions and government policy—yes or no?
Senator Brandis: Do you really want me to answer that question—yes or no?
Senator LAMBIE: Yes, I do, because I have got a few questions and we are going to run out of time, so I will leave it.
Senator Brandis: No.
Senator LAMBIE: At a briefing today from the Kurdish lobby, parliamentarians heard that Hamas, the Palestinian-Islamic terrorist group, have been taken off Australia's official terror list, while the PKK, or Kurdistan Workers' Party, remained on that list. Is this correct?
Ms Lowe : It is not correct that Hamas has been taken off the list for which this department is responsible, which is the prescription of terrorist organisations under the Criminal Code. PKK is also a listed organisation, and their listing is due to sunset in August of this year, at which time we will reassess whether they will continue to be listed.
Senator Brandis: That is the usual procedure. Organisations are listed for a finite period of time and are reassessed as that time comes towards its end.
Senator LAMBIE: It is my understanding that support for the PKK is strong in Australia's Kurdish community. Given your plans to strip terrorist supporters of Australian citizenship, is it not therefore possible that supporters of the PKK, the Kurdistan Workers' Party, could be stripped of their Australian citizenship?
Senator Brandis: I do not think it is possible to answer that question in the general sense because, for a start, we are talking about laws that are yet to be enacted and, in fact, we have yet to see a bill; but were such laws to be enacted, as the government intends, then it would depend on the application of that bill to the particular facts of an individual case.
Senator LAMBIE: Many people from Tasmania and other states have contacted me who are worried that, because of the dysfunction and secrecy surrounding halal certification in Australia, money collected from halal certification could find its way to Islamic slavers, murderers and rapists in the Middle East. Can you give me a guarantee that none of those halal funds are supporting the brutes who are fighting our troops in the Middle East?
Senator Brandis: I know that those claims have been made and that is why we are having a Senate inquiry to look at that, among other matters.
Senator LAMBIE: Can you give me a guarantee, though, Attorney-General?
Senator Brandis: I cannot give you a guarantee about a general assertion. If you want to give me a particular instance, I will have it examined.
Senator LAMBIE: Could you explain to me why sharia law is not compatible with our democracy, our Constitution and our law?
Senator Brandis: I think we need to tread very warily here, Senator Lambie, because sharia means different things to different people. There is one system of laws in our country and that is the law which we must all obey and under which we are all equal. There is, and will only be, one set of laws in Australia; let me be as emphatic about that as I can be.
Different religions have different customs. What some people describe as sharia law—which, as I say, means different things to different people—is merely a description of some of the customs of Islam. That is not something that represents an alternative legal system any more than, for example, the canon law of the Catholic Church represents an alternative legal system. There is only one legal system in Australia.
Senator LAMBIE: Wouldn't it be fair to say that a clear sign of radicalisation and support for ISIS terrorists in Australian citizens is support for sharia law?
Senator Brandis: Not necessarily, because, as I and the Prime Minister and others in the government are at pains to point out, the vast majority of Australia's Muslim citizens are peace-loving, patriotic Australians and many of them, no doubt, subscribe to the religious customs and practices that are sometimes called sharia.
Senator LAMBIE: In recent history—since 9/11—I do not think there has been a convicted terrorist in Australia or the world who was not a supporter of sharia law. So wouldn't it be wise to ban sharia law—its practice, support and advocacy—in Australia?
Senator Brandis: Again, it all depends what you mean by sharia law. What we ban—and what this government has been absolutely uncompromising in banning—is the advocacy of terrorism; the advocacy or facilitation of terrorism, the financing of terrorism and the recruitment of people to be involved in terrorism. If what you mean by sharia law includes those practices, then they are already banned. If, however, we are merely talking about, shall we say, religious customs, then it is not the business of the Australian government to be banning religions or religious customs. In fact, there is a constitutional prohibition against banning religions.
Senator LAMBIE: Minister, surely you can be a good Muslim without supporting a law which strips women of all their civil rights and imposes the death penalty on gay people and people who have sex outside marriage?
Senator Brandis: I do not profess to be an expert on the Islamic faith, but each of those circumstances you have described—which I know are advocated by certain elements who claim the Islamic faith, or an Islamist ideology—are abhorrent. Of course they are abhorrent, to any civilised person.
Senator LAMBIE: And my last question is this: if you will not support a law which bans sharia law in Australia, what about toughening our citizenship oath so that anyone taking the oath would know that Australians oppose sharia law—for example, would you support amending the Australian citizenship oath to read, 'from this time forward under God I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights, liberties, and opposition to sharia law I respect, and whose laws I will uphold and obey'?
Senator Brandis: I would not support that particular reformulation of the citizenship oath, Senator.
Senator LAMBIE: Were opposition to sharia law included in the citizenship oath, there would be no doubt left in any new citizen's mind that we do not support the terrorists' law in Australia.
CHAIR: Do you have a question, Senator?
Senator LAMBIE: No, I have finished. Thanks very much.
Senator Brandis: Senator Lambie, this is a very, very important issue. There is no issue facing us, frankly, more important and sensitive than how we counter violent extremism, which is why the government is investing so much effort in doing so. And frankly, I do not think the cause of countering violent extremism is assisted by making sweeping claims that identify what for most Muslims are merely commonplace religious customs with terrorism.
CHAIR: Just before declaring the proceedings adjourned, I would like to encourage those who have further questions on group 2 and group 3 to perhaps consider placing those questions on notice.
We will start tomorrow at 9 am with the Attorney-General's Department and the Human Rights Commission. There are a number of agencies coming; some of the questions which I know some senators wanted to explore further tonight in this general counter-terrorism area can perhaps come up in the AFP or ASIO areas tomorrow night, should time allow. Mr Moraitis, would the people who are answering the questions—which seemed to be mainly the minister, I might say—normally be here tomorrow night in any case?
Mr Moraitis : No.
CHAIR: I will live in some hope that somewhere tomorrow we may be able to find a bit of time to do group 3.
Senator JACINTA COLLINS: Yes, we will need more group 3 time.
CHAIR: I appreciate that.
Mr Moraitis : In which case, we will make them available.
CHAIR: Well, I would not bring them before lunch, obviously, but—
Senator JACINTA COLLINS: Can I suggest you monitor progress, Mr Moraitis?
CHAIR: Yes. In the unlikely event that we are ahead. Mr Moraitis, if you could just have your group 3 people at the ready, in the event that we are able to get to them. We will deal with the program and we will think about a spillover date, certainly for group 2, and for any of group 3 that we do not have time for. But, as I say, a lot of the group 3 questions may be able to be brought up in different ways in some of the areas scheduled for tomorrow afternoon.
Senator Brandis: Can I just indicate too please, Mr Chairman, that I will have to absent myself—not for very long, but in the middle part of the morning—tomorrow. I am going to Government House to attend the swearing-in of my new Parliamentary Secretary, Senator Fierravanti-Wells. I will be represented at the table by Senator Birmingham.
CHAIR: Yes, thank you, Minister; you have advised the committee of that. We appreciate that. And we will extend our congratulations to Senator Fierravanti Wells. With that, proceedings are adjourned until tomorrow at nine o'clock.
Committee adjourned at 23 : 04