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Legal and Constitutional Affairs Legislation Committee
(Senate-Tuesday, 16 October 2012)
National Native Title Tribunal
Australian Human Rights Commission
Australian Law Reform Commission
Australian Crime Commission
Australian Customs and Border Protection Service
Rear Adm. Johnston
Australian Federal Police
Senator DI NATALE
Australian Security Intelligence Organisation
Family Court of Australia
Federal Court of Australia
Federal Magistrates Court of Australia
Mr R Foster
Office of the Australian Information Commissioner
Office of the Director of Public Prosecutions
- National Native Title Tribunal
- ATTORNEY-GENERAL PORTFOLIO
Content WindowLegal and Constitutional Affairs Legislation Committee - 16/10/2012 - Estimates - ATTORNEY-GENERAL PORTFOLIO - Australian Federal Police
Australian Federal Police
CHAIR: Welcome, Commissioner Negus. I want to start by saying that I have recently had a tour of your new operations at the Darwin airport precinct. The building and facilities are very impressive. They are no doubt a welcome relief for your officers after the cramped little space they had in the downtown CBD.
Mr Negus : They are very pleased to be there, chair, so thank you for that.
CHAIR: It was a very good tour and good insight into the work that happens up there. Do you have an opening statement that you want to make?
Mr Negus : No, I do not.
Senator MILNE: The first question I have is in relation to Tenix. I understand that a British company, BAE, referred Tenix's dealings to the federal police in 2009. Can you update me on progress in relation to that matter?
Mr Colvin : That is correct. On 28 July 2009 BAE referred to us a matter involving potential foreign bribery and corruption matters. That matter is still ongoing so there is nothing I can say on the public record at this stage.
Senator MILNE: Presumably, when it was referred in 2009 it was taken up. You are saying that it is ongoing and there is no time-frame indication of when that matter will be brought to a conclusion.
Mr Colvin : That is correct. These matters are typically quite complicated and involve a number of overseas jurisdictions, as you would appreciate. I have no time frame I can place on that investigation.
Senator MILNE: Thank you. I now move on to matters pertaining to the involvement of the Australian Federal Police and refugees, asylum seekers and Sri Lanka in particular. Can you inform me whether the federal police utilise the knowledge, experience and resources of the High Commissioner for Sri Lanka to Australia in its investigations of asylum-seeker vessels intending to leave from Sri Lanka, or in its counterterrorism activities in Australia or in Sri Lanka?
Mr Colvin : The short answer to your question is 'no'. We have a liaison officer in Colombo. We deal directly with our counterpart agencies in Sri Lanka for a range of crime types, but specifically for people smuggling investigations.
Senator MILNE: Is your officer in Sri Lanka based at the Australian High Commission?
Mr Colvin : That is correct. He is.
Senator MILNE: And that person's job is to liaise with the Sri Lankan authorities. To do what sort of things?
Mr Colvin : There is a range of functions that our liaison officers perform. It varies across countries. Our liaison office in Sri Lanka is mostly engaged in sharing of information and intelligence for investigational purposes and, also, is involved in capacity building for local Sri Lankan agencies.
Senator MILNE: When you say 'capacity building for local Sri Lankan agencies', in what sense? What sort of capacity-building work does the AFP do in Sri Lanka?
Mr Colvin : There is a range of activities that we are involved in. If you give me one moment I will get you the specifics of what we have undertaken in Sri Lanka. If you will allow me, I will read through some of the things that we are involved in. With a view to improved capability and capacity of the Sri Lankan police service, which is our major partner, the AFP is engaged in a range of capacity development initiatives in recent years. These include computer based training software that was installed in a training facility; 40 computer based training work stations that we have given to, I think, the same training facility; additional computer equipment; motor vehicles; motor cycles; some minor office equipment and analytical software to their criminal investigation department; and also we have facilitated positions on training courses, particularly focussed on management and police development programs.
Senator MILNE: Were the Australian Federal Police asked to or make any representations in relation to the appointment of the current Sri Lankan High Commissioner?
Mr Colvin : Senator, I think we may have answered this at estimates previously, but the answer again is no. That is not a matter—the appointment of a high commissioner or ambassador to Australia—that the AFP would ordinarily be involved in. I am not sure what the process is, but I suggest that it is probably something that foreign affairs and trade would have more information on.
Senator MILNE: So you say that the Federal Police made no representations as to whether or not his credentials should be recognised?
Mr Colvin : That is correct, yes.
Senator MILNE: Thank you. Can you tell me: is the AFP aware of the phenomenon in Sri Lanka of dissidents being abducted in white vans? Has that come across the awareness of the Federal Police in the work they are doing in Sri Lanka?
Mr Colvin : Not to my specific knowledge. I do not know whether that is something that may have been reported in the media in Sri Lanka and perhaps our liaison officer is aware of it, but in a formal sense, to my knowledge, the AFP has not been made aware of that phenomenon.
Senator MILNE: When you said the AFP does not liaise with the high commissioner here in Australia, in terms of the engagement of the Federal Police with the Sri Lankan government and the navy in Sri Lanka, are the Federal Police involved, or do they have access to the Sri Lankan navy intelligence with regard to interception of asylum-seeker boats and disruption activities?
Mr Colvin : Ordinarily, Senator, I would say the answer to that is no. We deal with the Sri Lankan police service. If, in the course of dealing with the police service, intelligence is made available to us that perhaps may be from the Sri Lankan navy, I could not be sure,2 but we deal with our counterpart, which is the Sri Lankan police.
Senator MILNE: Are the Sri Lankan police involved in disruption activities prior to refugees leaving?
Mr Colvin : I will take that on notice. I believe the answer would be yes--obviously disruptions that occur with the island. Disruptions that occur at sea would be a matter for the navy.
Senator MILNE: In terms of the Sri Lankan asylum seekers who go back to Sri Lanka, voluntarily or otherwise, what tracking does the Federal Police do of whether or not they are tortured on their return?
Mr Colvin : We have no role or responsibility to track those individuals. We would not even necessarily be aware of who they are or when they returned.
Senator MILNE: So you are working in the high commission in Colombo. Do you know if the high commission has procedures in place to follow up with the Sri Lankan authorities on any claims of abuse from returnees?
Mr Colvin : I think that would be a question for DFAT, Senator. The AFP are not aware.
Mr Negus : If I could add to that: we have answered questions here in this committee before. Certainly if a member of the AFP became aware of that information, it would be reported accordingly. We are not aware of those instances or allegations being made, and the action would be taken by our officer immediately to report such abuses if they were reported to him.
Senator MILNE: Thank you.
Senator DI NATALE: I have some questions relating to the AFP's role in the training of counterterrorism operations in Indonesia. On 28 August this year, the ABC's 7.30 program aired some evidence about the counterterrorism unit Detachment 88, which as I think we discussed in the last estimates hearing, receives training and support from the AFP. The program aired evidence that Detachment 88 has been involved in torture and extrajudicial killings in West Papua. We know that these allegations of torture and ill treatment have also been verified by groups like Human Rights Watch. During the program there was a call from the foreign minister, Bob Carr, in relation to the recent shooting of Papuan independence leader Mako Tabuni for an inquiry. He called for an inquiry. I note the AFP's response was that it does not investigate received briefings on or ask what I think are fairly basic questions from the Indonesian authorities about human rights abuse allegations. Given that background, I want to ask a few more questions about the training and support provided to detachment 88. I understand that there are hundreds of thousands of security forces in Indonesia and that AFP does not train all of them, but is it correct to say there have been around 12,000 trained in total since the Bali bombings, through the Jakarta Centre for Law Enforcement Cooperation? Would that be about right?
Mr Negus : Senator, those figures are right, but there have been 12 000 officers from, I think, around 55 or 56 countries who have been trained at that facility that make up that 12,000—including Australian federal police. I think Deputy Commissioner Drennan might have the numbers here for us about Detachment 88. The media reporting you talked about, back in August: I put out what we call a 'blue-line response' the following day, to correct some of the public speculation in regard to the AFP's support of Detachment 88. I will let Deputy Commissioner Drennan elaborate on this, but the first two points I just want to make are that the AFP does not provide public order, tactical training, or related equipment to Detachment 88 and the AFP does not, and has not, provided any support to the Indonesian National Police, or Detachment 88, in any of their operational activities in West Papua. Again, on our website there is a very clear statement of what our responsibilities are and what we do.
We have been working with Detachment 88, in one sense, since 2005. There has been a range of things they have done very positively in Indonesia, apartment from the allegations of abuse that you mention. They have been responsible for the arrest of over 770 people for suspected terrorism offences. Around 600 of those have been convicted in the Indonesian courts. And I have got to say, from being in Bali last weekend for the Bali memorial, the work of Detachment 88—and it is a very large organisation—the work of parts of Detachment 88 I have no doubt have saved Australian lives in the context of the work they have done in breaking up JI across the Indonesia archipelago. So, in that regard there is a range of very much positive activities that should be looked at, as well as the issues that you raise of the allegations of abuse and particularly around the West Papua issue. So, the AFP is focused very much on the positives, and we do not get involved in any of the areas that have been reported in the media.
I have got to say, though, the media reporting has been quite loose with some of the factual data in regards to allegations against Detachment 88. I know there have been a range of issues attributed to other forces in Indonesia which Detachment 88 has certainly copped the blame for. I will let Deputy Commissioner Drennan talk about this, because I specifically tasked him in the last month or so to sit down with people who have worked in Indonesia, sit down and look at all of our programs with Detachment 88 to make sure that we were more than comfortable, given the basis of your questioning at the last estimates hearing, to reflect on that and to talk to the people on the ground, to be very, very clear about the role played by the AFP and the sort of support that is given to Detachment 88 in that context. So, Deputy Commissioner.
Mr Drennan : Thanks, Commissioner. Senator, if I could just go back to the beginning there, where you raised the allegations of Det. 88's involvement in the death of Mako Tabuni—
Senator DI NATALE: I will correct you on that: the 7.30 program raised the allegation, I was just reporting that.
Mr Drennan : Okay, thank you. The International Crisis Group have actually reported on this incident and they have actually reviewed the matter and their finding was that Det. 88 members were not involved in any way in the operation resulting in Tabuni's death. The INP have affirmed that that is the position. So, again, as the commissioner said, we just need to be a little bit cautious on what the media say, in some circumstances. The International Crisis Group has reviewed that matter, and I think the International Crisis Group's reputation speaks for itself in its level of scrutiny and independence. Also, if we could just go to the number of officers who have been trained at the Jakarta Centre for Law Enforcement Cooperation; from the Indonesian National Police there have been 6,932 students. There have been 702 students from Detachment 88, 11 students—
Senator DI NATALE: Sorry, what was that number?
Mr Drennan : 702. Eleven of those members of Det. 88 have been from the Papua province. And there is one member from Det. 88 who is stationed in Papua province, who has attended a course at JCLEC, which has been supported by the AFP, or funded by the AFP, and that was a counter-terrorism investigations program.
The types of courses that other members from Det. 88 from West Papua have undertaken at JCLEC, are CT investigations management, counter-terrorism financial investigation workshop, counter-terrorism investigation management, informer handling and interviewing techniques, investigation management, CT in analysing the internet, interviewing in-prison debriefing course, and CT investigations management course. Now, those courses are held at JCLEC but are provided by a range of donor countries, primarily from Europe and the UK. You will see from those that there are no courses there that are tactically orientated, that is none which deal with public order or any tactical operations the police may be involved in.
As regards to the other types of courses Detachment 88 officers may have attended at JCLEC, they are of a similar nature and I will run through those as it may help you: crime investigations, management of transnational crime, criminal intelligence, financial investigations, proceeds of crime, communications, management, security risk management, response to CBRN, which is chemical, biological radiological and nuclear events, internet offences, child protection and post bomb blast management. Again you will see from that list of courses that there are none there which are tactical in their nature whatsoever. The other thing I would mention there is that the officers who attend from Detachment 88 is a decision by the Indonesian National Police. JCLEC provide the courses, the request goes to the Indonesian National Police to provide officers and they select officers from across the entire INP to attend those different programs.
Senator DI NATALE: Thank you for that comprehensive background there. It is nice to have someone who has answered a lot of the questions before I have had the opportunity to ask them, so I appreciate that.
Mr Drennan : Here to assist you, Senator.
Senator DI NATALE: I have a few questions about background checks. What is actually done in the way of background checks? I take your point that there may be some controversy around the incident with Mako Tabuni but I think it is reasonably well-established that there have been members of Detachment 88 who have been involved in other non-lawful activities. What work is done in the way of background checks prior to the training? I understand that they are selected by the Indonesian forces but is there any work done in the way of background checks to establish that the people we are training have got a track record that we are pleased to support?
Mr Drennan : It is probably best to answer it this way. Firstly, the nature of the courses, as I articulated, is very much focused on investigations, investigations management, forensics and child protection type things. The nature of the allegations which have been raised in the media—and, as I said, I treat them with some caution—
Senator DI NATALE: It is not just the media; Human Rights Watch have also indicated concerns.
Mr Drennan : Again, I treat those with some caution. They are operations of a tactical nature, so when police officers have been involved in a tactical sense of resolution of matters, of arrests. So the actual type of people who have been selected to go on the courses which are conducted at JCLEC which we are supporting are of a different nature to the type of activities that the police would be involved in. As far as are there checks done in regard to the history of each individual officer, the INP select those officers. We do not have any involvement in that. But the INP are also very aware of our position in that we provide these courses for investigations and the nature of the things I described earlier and we rely upon them selecting suitable officers to attend those training programs. Within the training programs themselves, though, there is a human rights element which is built in. Whether that is through the scenario base of the training or whether it is a specific element of the training, it is incorporated in each of those training programs.
Commissioner Negus : I add that that human rights training is to Australian standards. We have the commandant of JCLEC, which is a joint facility between the INP and the AFP, and we insist on the training in those things being done to international standards, including what we here in Australia commit to as far as international human rights and the protection of human rights are concerned. So this is an opportunity to have people from multiple countries—as I said, over 50 countries have trained there—come together and talk about some of the implications of potential human rights abuses, take these as case studies and discuss these in the classroom before they leave and go back to their various areas.
Senator DI NATALE: If you became aware of a specific allegation of human rights abuse, what would the process then be for gathering more information about the specific allegations?
Mr Drennan : Are you asking what process we would have?
Senator DI NATALE: What is the process in general obviously within JCLEC, or whether the AFP in particular would follow those issues up.
Mr Drennan : We would certainly report those matters to the Indonesian National Police, who would have the responsibility of dealing with them. And if I could just add: the Indonesian National Police are actually overseen by the Indonesian National Human Rights Commission, the National Police Commission and, as you mentioned before, also numerous government organisations and human rights groups closely monitor activities.
In 2009 the Chief of the Indonesian National Police introduced a regulation specifically addressing the implementation of human rights principles and standards in the discharge of the duties for the Indonesian National Police. In a more general sense, the INP is responsible for prosecuting matters according to the rule of law and which therefore brings those matters under the scrutiny of the courts.
We rely upon those tiers of governments and oversight to ensure that the INP discharge their obligations in relation to a range of international human rights conventions to which they are signatories. Again, there are nine core international human rights treaties under the United Nations. Indonesia has signed all nine of those and ratified eight, with one more to come.
Senator DI NATALE: So how often are specific allegations brought before the AFP?
Mr Drennan : I am not aware that any have been brought specifically to the AFP.
Senator DI NATALE: So, in your view, does that indicate that the human rights issue in terms of some of the people who are being trained is a non-issue?
Mr Drennan : No, what I am saying is that none have been brought before us. The type of training that we provide and the officers who are participating in training are not ones we would expect to be involved in activities of the nature where allegations of human rights abuse have been raised.
Mr Negus : One of the points I made in the opening comments, before I passed to Deputy Commissioner Drennan, was that Detachment 88 have a very wide role in Indonesia. They are really the investigative capability for the Indonesian National Police to investigate and prosecute terrorist offences. So think about that in the context of across the whole of the archipelago. Again, they have arrested 775 people with terrorism offences since the Bali bombings took place in 2002, with over 600 of those being prosecuted and convicted in the courts in Indonesia. So we are talking about a very large group of people here in which we have a very small slice—I think 78 of them from Detachment 88 have done those training programs with us. So we are open to a very small component of what is a very large group within an even larger organisation of the Indonesian National Police.
Senator DI NATALE: I appreciate that. Small or large, it is important to establish whether—
Mr Negus : I think publicly, though, there is a perception that Detachment 88 is a small group of people who move around in one group and that is not the case, as we have—
Senator DI NATALE: I am aware of that. I think we share a view that they have done some good work in preventing terrorism in Indonesia. The concern I have is that some of the activities within segments of Detachment 88 have moved from a counter-terrorism operation to a counter-separatism operation within Papua and that may apply only to a small number of that unit. But it is still significant, particularly for the people of West Papua. So understand the basis for my questions—
Mr Negus : We are very careful and, hopefully, you are seeing that we are very careful to limit our support to those actions that are instrumental in ridding Indonesia and the region of terrorist activity and protecting Australian lives in the process.
Senator DI NATALE: Do you share a concern that some of the allegations that may be made end up being investigated by the same agencies that are essentially responsible for committing the abuses? Is that of concern to you?
Mr Negus : We do not have visibility on that. People make the same allegations against police forces, which have internal investigation units. So it is impossible for me to say what level of scrutiny should be applied to those things in a foreign country.
Mr Drennan : I did articulate again a short time ago that there are a range of oversight bodies which sit across the top of the Indonesian National Police.
Senator DI NATALE: Sure. They do not do the investigating, do they?
Mr Drennan : They certainly provide scrutiny in relation to it. Similarly here, the Ombudsman or any range of committees here in Australia have a monitoring role of what the AFP does. Certainly, if they are not happy with what we are doing, then we are held to account.
If I could just go back to the other issue you raise with regard to counter-terrorism work morphing into counter-separatist work: the INP are very clear on the fact that we support them in their counter-terrorism activities. They do draw a very distinct difference between counter-terrorism and counter-separatism and they are fully aware that we do not and would not be involved in any counter-separatism work. On that note, we have not been involved in any activities in West Papua at all.
Senator DI NATALE: You have not been directly involved but you have trained members of Detachment 88 and we do not know what numbers are involved in West Papua and what activities they have been involved in in West Papua.
Mr Drennan : To be clear, we have trained one person from Detachment 88 who is in West Papua on a CT investigations course.
Senator DI NATALE: Of the other members, again to be clear, the total number was 702 members of Detachment 88; is that correct?
Mr Drennan : That is correct.
Senator DI NATALE: I thought you had said 11—
Mr Drennan : Eleven have undertaken training programs through JCLEC from Detachment 88 in West Papua and one of those members had attended a course that was funded by the AFP. The other 10 had attended courses that had been funded by other donor countries. Again those courses were of a similar nature.
Senator DI NATALE: In terms of the threshold test for limiting an individual's involvement in training, at what point do we say that there is evidence against them and that we should withhold any training activities for an individual should that be brought to your attention?
Commissioner Negus : We really rely on the Indonesian National Police to select the appropriate people to come on those programs. You have to understand that we are talking about relatively small numbers of people who come and do the training. These are highly competitive programs. These are programs in which only the best people would be selected to come and who have a significant leadership future within that organisation. The level of scrutiny that is placed by the INP would be significant in that regard. In an organisation of over 400,000 police in the Indonesian National Police we are talking about fewer than a hundred who have been trained in that regard from Detachment 88. We really do rely on the Indonesian National Police. They know very well our stance on this. We have been very clear about that, in what support we can and cannot provide. I brought with us today a chart which we could table for you which lists the expenditure we have in each of those areas. It is around three hundred and something thousand dollars in direct support to them over the last few years. That is not a lot of money in the context of broader aid, but we would be more than happy to table that for the committee so you can see exactly where your money has been going and how that has actually worked.
Senator DI NATALE: Thank you, I would appreciate that. I suppose you have really come to the point that I am trying to make. Given that it is such a competitive program, it has to carry with it some degree of legitimacy. Being trained gives some measure of credibility and international legitimacy to those people who have trained, and what I am trying to establish is that we are ensuring that that legitimacy is deserved and is earned. You are telling me that the screening process is essentially done by the Indonesian National Police and that the AFP have no real role in the vetting of individual people who are going through the training program. Is that a fair analysis?
Commissioner Negus : That is right. To be realistic about this, we are talking about training delivered in Indonesia. Yes, we have supported it financially and we support some of those programs financially, but we do have to rely on and trust our partners to pick the right people to come on to our programs. They know our stance on this, they read the newspapers like everyone else does, they realise that in Australia this is a very topical issue and they are certainly aware of 7.30 and some of the other media that has been raised about this, because we have spoken with them about it personally. They are very clear on our expectations and very clear on our obligations and requirements for them to be selecting the right people to come on these programs.
The reason I had the Deputy Commissioner sit down with people who have been in Indonesia for a couple of years, worked with Detachment 88, worked on these programs, is to satisfy myself, given the media reporting, that we are doing everything that is reasonable and appropriate to ensure that we are only supporting activities that would be acceptable to the Australian community. I have done that, and I am satisfied, given what has been told to me and given what we have told to you today, that we are taking significant precautions to make sure that the Australian community is not tantamount to funding anything which would be unacceptable in this country. I go back to 775 arrests for counter-terrorism matters, 600 people prosecuted and convicted in Indonesian courts for terrorism related offences, which, as I said, have saved Australian lives. There are over 900,000 people who go to Bali each year and after being there last week, seeing the memorial and the surviving victims of the Bali bombings, I think that some of the work that has been done in Indonesia by the Indonesian National Police needs to be recognised.
Yes, we need to be very careful about where the funding is going, but I think that we also need to recognise the terrific work that has been done across the board in protecting Indonesians and Australians from future attack.
Senator DI NATALE: I recognise that and, as I said previously, I understand the important work that has been done in counterterrorism. But I have also seen the number of people who have died in West Papua, the people who during the recent national congress were arrested, a number of whom were killed and a number of whom were imprisoned. There were very clear reports that the Indonesian forces and members of Detachment 88 were involved in that, and it is for that reason that I am asking you these questions. I appreciate what you are saying about the role that they have played in terms of terrorism and I share the view that they have done some very important work. But I do not think you can use that and ignore what is happening in West Papua at the moment and the fact that there are very credible reports—not just in the media but by a number of human rights monitors with very credible allegations: interviews with victims, eyewitnesses of incidents and so on—which have implicated members of the Indonesian police force in some of those unlawful activities. I think it is worthy of ensuring that the work that we are doing through our training activities is not contributing to that, and it is for that reason I ask those questions.
Mr Negus : I understand that. All I am saying is that I hope we have been able to give the committee some confidence that the appropriate level of scrutiny is being applied by the senior executive of the AFP, including personally by me, to ensure that that is not the case.
Senator DI NATALE: Okay, thank you. I have one final question. If a specific allegation against an individual were made, would the AFP have any role in following that up, or are you saying that you would leave it entirely up to the Indonesian National Police?
Mr Negus : The issue of jurisdiction becomes central to all of this, and we would not have any jurisdiction to investigate that matter. We would report it to the appropriate authorities in Indonesia. We may well report it to the Department of Foreign Affairs and Trade if it related to activities of a certain type, but the jurisdiction is within Indonesia to settle its own affairs, and we would just ensure that that information was passed through.
Senator DI NATALE: But we are funding the training activities that are going on, so my question relates specifically to individuals who may have benefitted from that training. Would that cause some concern to reconsider?
Mr Negus : It is a hypothetical question, but I can tell you that if there were ever any taint of anyone we had trained being involved in inappropriate activity, we would certainly have to review the level of support that we would provide.
Senator DI NATALE: Okay.
Mr Negus : And that is clearly evident to the Indonesians as we speak.
Senator DI NATALE: Thank you for that assurance and thanks for your time today.
Senator PARRY: Commissioner, something I have raised in previous estimates is unexplained wealth legislation. Where are we at, how effective is it and are there any prosecutions pending?
Mr Colvin : Senator, as you are aware, there are still a number of recommendations from the committee that took evidence into the unexplained wealth provisions that are currently being considered by government and are a matter for the Attorney-General's Department. But, in terms of the Australian Federal Police, I can say—and I will be limited about what I say—that we have a number of investigations where we are considering unexplained wealth options. I think it is in the order of four at the moment where we believe unexplained wealth will be a legitimate option for us. I did check this morning in anticipation of your question, and we have a high degree of confidence that we are going to take some of these matters forward. That will, of course, test the legislation and give us and the government an ability to make an assessment of the legislation as it currently stands.
Senator PARRY: Thank you.
Proceedings suspended from 15:34 to 15:48
Senator LUDLAM: Are you aware Telstra were recently logging all 3G users' web access over their mobile network and were sending the information to an overseas server for the development of some kind of new filtering product? There have been suggestions that this behaviour by Telstra was in breach of the TIA act and warranted investigation by the federal police. Can you fill us in: firstly, are you aware of the breach I am referring to?
Mr Negus : I will get the head of our high tech crime unit to come to the table and perhaps give us some more details.
Mr Gaughan : Senator, this is the first I have heard of that, and I am in regular contact with Telstra.
Senator LUDLAM: True? Okay. Is it the first you have heard that the AFP's intervention was called for, or the first you have heard of that data breach?
Mr Gaughan : It is the first I have heard of the data breach.
Senator LUDLAM: That is interesting. It might help if I table some material so that you know what I am referring to. I am aware that a number of people did make complaints. It was effectively transferring traffic on Telstra's network to a cloud-hosting provider in the United States, which then potentially exposed Australian data to the Patriot Act, which obviously has very different ideas around privacy protection than we do here. A number of constituents that I am aware of did receive traffic back from the AFP saying, 'We have to prioritise. Our case load is very heavy; we will not be investigating this one.' But, if you are not aware of that, I might come back to that later and give you some material to work with. To whoever wants to take these questions: I am just referring to the national security inquiry that is underway at the moment and is before the joint committee. I am aware you gave evidence on 26 September with a number of other commissioners from around the country.
Mr Negus : Yes, I did.
Senator LUDLAM: Has the AFP also given in camera evidence to the joint committee?
Mr Negus : Yes it has. In fact, Assistant Commissioner Gaughan and Deputy Commissioner Phelan appeared before my appearance. I have not got the date on that.
Mr Gaughan : It was about seven days before.
Senator LUDLAM: Okay. Could you provide us on notice with a date.
Mr Negus : Yes, we certainly could have a look now and get back to you very shortly about that. It was a few days before my appearance.
Senator LUDLAM: All right. Great. Obviously I have got quite a keen interest in this one. You are giving evidence to the joint committee now, which is good. Can you tell us about the AFP's role in the lead-up to the announcement of this committee? Did you play some part in forming the terms of reference or provide material for the discussion paper that came with the committee?
Mr Gaughan : We have been involved from the outset in relation to this particular issue, working with the Attorney-General's Department and other Commonwealth agencies, in relation to preparing the discussion paper that was put forward before the committee. Obviously, as a user of the telecommunications interception act, we have a strong interest in where this goes. There has been a number of different meetings convened over the period of time before this paper went forward. There is working group level, where the people are talking about exactly the content of a proposed bill, and there are also more senior discussions in relation to some of the strategic issues that are currently before that committee.
Senator LUDLAM: All right, thank you. Now I am aware that this, at least from the Attorney General's Department's point of view, goes back a number of years: four meetings that they had convened with telecommunications providers. Were the Federal Police involved in those meetings?
Mr Gaughan : I have certainly been involved in some of those meetings. That has been with some of the larger telcos, particularly Optus, Telstra, Vodafone and Hutchison in South Australia. Some of those meetings I have been involved in and others I have not. That question is probably best answered by the department.
Senator LUDLAM: No, as for the Federal Police's involvement, they would refer me back to you. Are those meetings ongoing, or have they lapsed while the joint committee does its work?
Mr Gaughan : I have not been involved in a meeting of that nature for at least six months.
Senator LUDLAM: Okay. Does that mean they are not occurring or your involvement has ceased?
Mr Gaughan : My involvement is not occurring. Whether they are still happening would be a matter for the department.
Senator LUDLAM: You recently sent Deputy Commissioner Phelan around the country. I am just going to cite briefly from the evidence that you gave a week or so ago. You sent the Deputy Commissioner:
… around the country and he spoke to every jurisdiction about the issues we saw as being important for Australian law enforcement.
Why have you done that? Why has the Deputy Commissioner been tasked to do that?
Mr Negus : Because it was a federal committee, we basically saw that someone needed to take a bit of a leadership role from the law enforcement perspective. It is one of the reasons I asked my fellow commissioners to appear together, so that we could have a bit of a united front, if you like, and put forward those issues from the law enforcement perspective. So, because, as I said, many of the states and territories do use interception and are involved in this process but do not really have a voice, other than providing a submission to the committee, we sent Deputy Commissioner Phelan around to talk to them about issues that we thought were important, seek them and encourage them to actually put a submission into the committee, which most of them did, and answer any questions they may have about how this process is undertaken at a federal level.
Senator LUDLAM: And that evidence, or some of it at least, is now on the public record.
Mr Negus : I have to say, too, that we put a public submission to the committee—and, again, that is available on the website—and our position is very clear with regard to what we are trying to do here. The information that was provided in camera by Deputy Commissioner Phelan and Assistant Commissioner Gaughan was very much about the operational examples of these issues around methodology. So there was nothing untoward in that regard; it was more things that we would not put on the public record because of our operational capability.
Senator LUDLAM: Yes, I understand that. So that material is also beyond the reach of this committee while we are in public session. I am just interested in the idea that you would send a deputy commissioner around the country to get everybody onto the same page before you gave evidence.
Mr Negus : I see this as one of the most important strategic issues for law enforcement in the next decade. If we do not get this right, balancing the privacy obligations and the privacy principles that underpin the TI Act 1979, then from a law enforcement perspective, the Australian public are going to have an outcome which is going to be suboptimal. Organised crime, terrorists and other things will get an advantage that I do not think had been anticipated in this regard.
We are not seeking additional powers; all we want to do is modernise the TI Act to the context of what is really the communications and telecommunications industry of today. In 1979 when this act was launched, I do not think anyone could have foreseen what this would become in the way that people would communicate in 2012 and beyond. We want something that is technology neutral. We want to protect people's rights and liberties. We do not want additional powers. We still want to make sure that people are obliged to go and seek a warrant from a judicial officer to get content data. But the non-content data—and they are the things that we have been talking about here around the fact that a telephone conversation took place, where it took place and what the numbers were—are the sorts of things that we see as really important to get some consistency across telecommunications carriers and other areas through the use of quite legitimate law enforcement.
Senator LUDLAM: Could you provide us with your working definition, written or otherwise, of non-content data?
Mr Negus : Absolutely. In fact, I have one written down. We could actually tender one. The department has one here which we have worked on.
Senator LUDLAM: I would appreciate that.
Mr Wilkins : We have a definition here that is probably useful. Particularly if you are going to talk us and some of the other agencies about the same topic, it is actually important that we make that available to you.
Senator LUDLAM: I would greatly appreciate that, with the consent of the chair.
Mr Wilkins : It is a folio, really.
Mr Negus : I agree that it would be useful to table this, because there has been a lot of confusion in the media reporting about what is content and non-content data. I think it has unfortunately alarmed many people that some things would be looked at by law enforcement when in fact that is not exactly the case.
Senator LUDLAM: It certainly alarmed me and I will go into a bit of detail as to why. Chair, are you happy for that material to be tabled and circulated?
CHAIR: Yes, that is fine.
Senator LUDLAM: Great. Can I just summarise a sketch without having seen the document that you are about to circulate? Is it the case that the definition of non-content data is basically anything except the content of the communication itself, or is a bit more technical than that?
Mr Negus : Have a look at the definition first, Senator.
Senator LUDLAM: All right. We come back to that in a moment then. Do you think it is appropriate, Commissioner, that that material is at the moment being applied for a bit under two dozen agencies—as the TI(A) Act annual report describes, without any warrants at all? You actually provided us with the paperwork that the AFP is obliged to go through to obtain those. Do you acknowledge that no warrants are required?
Mr Negus : That is right. As I think I have said to you before, I think the AFP applied for 23,000 of these last year. So if you were wanting to grind the AFP to a halt, then you should implement a warrant scheme to actually do non-content data application—because 23,000 of these would require 23,000 judges to consider affidavits for those to be prepared and for those to be granted. It is an unrealistic expectation. I think there are certainly significant safeguards in place and I am confident that internally within the Australian Federal Police we actually provide a level of scrutiny and accountability to that that we treat very seriously.
Senator LUDLAM: Can you tell me why you think it is appropriate that suspects need to be named and targeted and serious crimes need to be under investigation and warrants need to be applied for for a direct intercept of a phone call but detailed locational data, moment by moment, of exactly where I am at every given moment of every day, should not have any warrant or any of those preconditions applied? Why is one worthy of such protection and the other one is not?
Mr Negus : One is a far greater intrusion into an individual's personal discussions than the other—
Senator LUDLAM: Commissioner, I strongly disagree.
Mr Negus : Senator, that is a matter for you, and that is what the committee is actually considering. What I was going to say at the very beginning of this is that this whole information is being considered by another committee, which we have appeared before. We have put a public submission in and we have had a number of our officers appear before that committee. There has been a range of different views expressed, and really it is a matter for that committee to consider all of those and make recommendations accordingly. We are but one player in this process.
Senator LUDLAM: Yes.
Mr Negus : We have tried to play a coordinating role to look to have the best possible information available for the committee so that they can make an important decision. But, as I said at the beginning—and I do not resolve from it—perhaps one of the most important things that law enforcement will face in the next decade is to get this right in balancing the privacy issues with the availability of data and information to law enforcement to protect the community.
Senator LUDLAM: I recognise that and I understand that. It is also a legitimate role of this committee to put precisely the questions that I am, while you are flying people around the country trying to get everybody on the same page.
Mr Negus : I reject that, Senator. This is not about getting people on the same page; this is about coordinating a response. We did not tell people what to say in their submissions; we just encouraged them to be part of the debate, and answered any of their questions about what would be the federal process and how this would unfold. So I reject your assertion that we sent someone around in an untoward way to get people onto the same page, because that is not what was actually undertaken.
Senator LUDLAM: I have now got the definition that we are working to, and I appreciate that. It is not just the Federal Police applying for these; it is the tax office, at least one local government authority that I am aware of, welfare agencies, anticorruption agencies and all sorts of folk. Do you concede that you are now able to create very, very detailed real time maps of an individual's social networks, their movements and their transactions—effectively everything about their lives apart from the content of the communications?
Mr Gaughan : Senator, that document that you have in front of you does not talk about web browsing. We are not seeing web browsing as part of that.
Senator LUDLAM: It relates to communications for internet.
Mr Wilkins : It does not include web browsing.
Senator LUDLAM: It says internet.
Mr Wilkins : It does not include web browsing.
Mr Gaughan : Mr Wilkins makes a very good point. Talking about getting into the details of what someone is looking at is arguably content. We are not after content. Clearly what is defined in that is metadata. It is important for us to have that information for us to undertake basic investigations. All of the sworn members in this room have been in the police force for in excess of 25 years, and I cannot recall any investigation that I have been involved in as a constable or the investigations that I have oversighted as an assistant commissioner or the ones that my telecommunications interception arm is involved in that do not use metadata. It is the primary function of law enforcement.
The fact that the authorisations as recorded in the annual report have been consistent over the last three to four years in my view shows that the use of metadata is efficient and effective in bringing people to justice. We pay for this information. It is was not effective, we would not be using it; we would be doing something else.
Senator LUDLAM: I am not arguing about its effectiveness. I will read from the sheet that you have just tabled. Part I says 'relates to communications for item 2, internet,' and then it says, 'Information that allows a communication to occur,' and the first dot point there says, 'the internet identifier'. I presume you mean an IP address there.
Mr Gaughan : Correct.
Senator LUDLAM: It says 'The internet identifier assigned to the user by the provider,' but you are telling us that that would not allow you to identify web traffic.
Mr Negus : That is right.
Mr Gaughan : What it does, Senator, is it allows us to identify who has used a particular IP address when they have undertaken a certain activity—for example, downloading child abuse material.
Senator LUDLAM: From the web.
Mr Gaughan : From the web. If we do not have that IP address we cannot start the investigation.
Senator LUDLAM: I am with you, but I am also profoundly confused. You have just explained that this is not about identifying web traffic. That is now how I read this piece of paper.
Mr Wilkins : You would need to get a warrant to get that information, Senator.
Senator LUDLAM: You would need to get a warrant to find out, for example, a specific URL that someone had visited—not a copy of the page but the URL? That is not my understanding of how the system works at the moment.
Mr Gaughan : For instance, how it works in child protection investigations is a very good example. We receive from our international law information agencies what has been accessed—that is, child abuse material—and an IP address. That is all we get. We do not get any other information. We then ask the telcos to identify who has accessed that IP address to enable us to commence the investigation.
Senator LUDLAM: So who held the IP address for a period of time in which content was accessed?
Mr Gaughan : Correct, but it is in undertaking our specific investigation. We do not go on fishing expeditions. We do not obtain IP addresses and then go seek the internet of what they have looked at. That is web browsing.
Senator LUDLAM: But there would be nothing preventing you. You guys are busy and presumably you do not have time for fishing expeditions.
Mr Gaughan : Correct.
Senator LUDLAM: But there would be nothing preventing you from doing exactly that.
Mr Gaughan : As Mr Wilkins said, we would need a warrant.
Mr Wilkins : The law prevents them, Senator.
Senator LUDLAM: I am not sure that it does.
Mr Wilkins : It does.
Senator LUDLAM: If you can provide us with exactly how that is the case, that would be appreciated. I am sorry, but that directly contradicts—
Mr Wilkins : I guess we will just have to spell it out in words of one syllable for you, but it does.
Senator LUDLAM: That is a profoundly unhelpful response to the question. If you want to do that, you would be very welcome. I would like to see you try.
Mr Wilkins : We are trying to be helpful, Senator. We have just explained to you how this is meant to operate.
Senator LUDLAM: This will be a bit out of the AFP's hands, so I can put this to the department a bit later if you like, but of the just under a quarter of a million metadata or communications data requests that were reported in the last annual report, none of that relates to web traffic. If that were the case you would need warrants.
Mrs Smith : The majority of those requests are in relation to subscriber requests—names and addresses and things like that. The internet aspect of that will be in relation to IP addresses. For example, through an intercept they have found out that there are various people accessing it and they will have a number of random IP addresses. They will go to the provider and say, 'Who belongs to these IP addresses?' under a data authorisation. But they have no authority, and the law does not allow them to access the contents of the communication outside a warrant. The TIA act is very clear in its definition of what is a communication, and includes issues like web browsing and anything that goes to the substance of a communication.
Senator LUDLAM: Yes, but I can give you a URL of a web page without disclosing what is on that page. What I am trying to identify now, in words of one syllable, is whether a URL is communications data/metadata or whether it is content.
Mrs Smith : The department has always taken a very conservative approach in relation to URLs to ensure that there is no unintended access to content of communications under data authorisations.
Senator LUDLAM: Are you able to point me to the part of the act that says it is or is not a URL?
Mrs Smith : There is no definition under the current legislation and, as has already been noted, this is a matter for the PJCIS as far as modernising the legislation—
Senator LUDLAM: It is a matter for this committee as well.
Mr Wilkins : What we are saying is that is our interpretation of the current legislation, and it would be made very clear in new legislation that that is the case.
Senator LUDLAM: That a URL, for the purposes of the way you are currently interpreting these requests, is content and not communications data?
Mrs Smith : Correct.
Mr Wilkins : That is right.
Senator LUDLAM: Can we go to the working group you mentioned earlier, Mr Negus. Could you spell out what its task is at this stage?
Mr Negus : I think Assistant Commissioner Gaughan mentioned the working group; I will pass it back to him.
Mr Gaughan : Initially it was to discuss some of the things that Mrs Smith has alluded to—the fact that there is no definition of a lot of the issues that are currently open for discussion and debate—and to try to come up with some terms and some words that everyone agreed to. We obviously still have some work to do with that, and the committee has come back to us a number of times in relation to some of those particular issues. The working group was also responsible for assisting and putting together the discussion paper that forms the basis of the PJCIS discussions at the moment.
Senator LUDLAM: Are you able to provide for us the membership of the working group and what its standing is? Is it informal or does it have some standing?
Mr Gaughan : That is probably best answered by the department. Certainly, the AFP has a member in their group, but it is probably a question for Mrs Smith.
Mr Wilkins : Do you want us to answer questions on this? We might as well. There is no working group at the moment. It is basically in abeyance. We are basically waiting to see what comes out of the committee, and then we may reconstitute a working group.
Senator LUDLAM: So there was a working group that was stood up to help produce that discussion paper and the terms of reference, and then it was stood down for the time being?
Mrs Smith : No. What the working group did was look at the need to reform the legislation, as Mr Gaughan has said. It was about coming up with some of the challenges that the current legislation faced. The work on the terms of reference et cetera was done by a different group of people.
Senator LUDLAM: Can you provide for us an idea of the working group when it was active; the membership and the duration that it worked for?
Mrs Smith : It was essentially the Attorney-General's Department, the AFP, the Department of Broadband, Communications and the Digital Economy—
Senator LUDLAM: You can put this in writing if you would prefer.
Mrs Smith : Would you prefer us to take it on notice?
Mr Wilkins : We will take it on notice and make sure we get the names right.
Senator LUDLAM: Particularly on the DBCDE about what officer they were represented by or at what level they were represented. What about the Privacy Commissioner?
Mrs Smith : We have certainly consulted the Privacy Commissioner on aspects.
Senator LUDLAM: Were they on the working group?
Mrs Smith : I am not sure. We will take that matter on notice.
Senator LUDLAM: You cannot recall if they were involved?
Mrs Smith : It was some time ago because we have moved into the PJCIS phase now. I will have to take that on notice.
Senator LUDLAM: I am interested to know—and I think you have undertaken to take this on notice—the membership of the working group, where it was headquartered or where its secretariat was and for how long it worked. I have a couple of other questions but it might make more sense to ask the department later.
Mr Gaughan : I would like to answer a question that Senator Ludlam put to us. The appearance by Deputy Commissioner Phelan and myself in the in-camera hearing before this committee was on 21 September.
Senator RHIANNON: Mr Negus, on the work in Afghanistan, I was reading that there is both an international network and an International Deployment Group. What is the difference between those two groups?
Mr Negus : In Afghanistan we do have an international network and we do have an International Deployment Group. With the international network we have just under 100 officers situated in 28 or 29 countries currently around the world—that has changed a little recently—as liaison officers. They work in the high commissions and embassies around the world. They facilitate inquiries on behalf of all Australian law enforcement, so if there was a murder in Sydney and it had some connection with the United States, our officer in Washington or Los Angeles may make those inquiries with the FBI or somebody else on their behalf. They also work in international drug trafficking and terrorism around the world. That is the international network. The International Deployment Group is a group of people specifically there for capacity building and peacekeeping operations through the region. They are in East Timor, the Solomon Islands, South Sudan and places like that. They are the ones in Afghanistan. We do not have an international network person in Afghanistan, but we do have 28 officers from the International Deployment Group doing capacity building in Afghanistan.
Senator RHIANNON: On the International Deployment Group, I think you have about 730 officers in total. Are all of those paid for out of the overseas development allocation to AFP?
Mr Negus : No, they are not. Some of them are, but it depends on the eligibility under the very strict criteria for ODAs. There are components of the International Deployment Group that would be paid. Deputy Commissioner Drennan could elaborate as he is in charge of that area. Before I hand over to him, I would like to correct the international network figures. We are in 30 countries with 96 people, to correct the record. Deputy Commissioner Drennan can tell you more about ODA and the process that we go through in regard to that taking place.
Mr Drennan : Your question was about what aspects of the International Deployment Group are ODA. It is quite complex in some regards in that some parts of our missions are and some parts are not. I can run through each mission, if you want, where we have an ODA component. In Afghanistan—
Senator RHIANNON: I would appreciate that on notice. I am really after the bigger picture at the moment so I can understand the situation. Do you have a breakdown of the percentage of those 730 that come under the international network that are funded by ODA, even if it is not the number of positions but the percentage of the overall program for which you receive ODA funding?
Mr Drennan : Yes, the total funding for the International Deployment Group is $286.2 million, of which $188.5 million is ODA eligible.
Senator RHIANNON: Are any of the officers working as part of the International Development Group based in Australia?
Mr Drennan : In the International Deployment Group there are at the current time 692 people. It is broken into three components. There is a mission component which is 471 people. Those people are based offshore or as part of the mission rotation which means that they are not necessarily offshore at a particular time—as you would appreciate, they need to have leave, training et cetera. There are 115 people who are permanent A-based, which are the support staff for the International Deployment Group and then there are another 106 people who are what we call the SRG, who are the public order tactical operators Specialist Response Group. That adds up to 692.
Senator RHIANNON: That is the 692, and then you are receiving about $188 million from ODA. Which of those positions receive the ODA funding out of those three categories?
Mr Drennan : The ODA funding is in relation to our IDG missions offshore. As I started to go through before, that picks up from Afghanistan, through the Pacific, the Solomon Islands, Timor Leste and the United Nations missions in South Sudan and Timor Leste.
Senator RHIANNON: Just to clarify, are any of these positions under the IDG, the ones that receive ODA money, based in Australia?
Mr Drennan : No, ODA is mission-specific funding, so it is for our activities for the people in the missions offshore.
Senator RHIANNON: Thank you very much.
Mr Negus : There is quite a complex process, which I am sure AusAID could articulate much better than we can, but we have to submit through AusAID to Finance the process that we expect the mission will take and what people what do what roles, and they will tell us which are ODA eligible and which ones are not. Certainly, people based in Australia providing support would not be eligible to be paid for under ODA. Even some of the people that perform roles in-country may not eligible, depending on what role they are performing at the time. There is a very strict criteria that needs to be met.
Senator RHIANNON: Thank you, Mr Negus. Are all the AFP activities in Afghanistan considered to be ODA eligible?
Mr Drennan : Yes, they are.
Senator RHIANNON: I understand the AFP officers at Tarin Kot are confined to the base as, I think, the security environment in that area is not considered safe enough for the mentoring given the fact that the Afghan National Police is a primary target of the insurgency. Is it the current situation that they are confined to base?
Mr Drennan : Confined is probably not the best word but they operate within the base, yes. That is because the work that they do—that is, training and mentoring the Afghan National Police—is best conducted within that structured and safe environment. To go outside to do work out there would place our officers at a greater risk than would be the benefit of putting them out there. So you are right: they operate within the Tarin Kot base. They are not outside of that.
Senator RHIANNON: So there is no field training at all is what we can conclude from that.
Mr Drennan : There is no field training in the field. Some of the scenario work that they do within the confines of the base replicates what they would do externally. So, to be precise, they do field training work, but it is inside the base. They do not do it outside of the base.
Senator RHIANNON: Thank you. How long has that been the protocol? Did that come in when the NATO forces made the decision to withdraw or was it more recently, with the latest round of green on blue killings?
Mr Drennan : Our members have always operated in that manner since their deployment to Afghanistan.
Senator RHIANNON: So there have never been field operations in the field. Right. Do you feel that that compromises the training for the Afghan National Police? Clearly, police operations are out in the community; they are in diverse situations. It must limit the effectiveness of your programs if you have always been confined to base.
Mr Drennan : There are parts of Defence NATO forces who provide mentoring in the field for the police officers, so there is a follow-up there to ensure that those things that they learn within their basic training are reinforced in the field.
Senator RHIANNON: Just talking about that training, I was surprised to read of the low levels of literacy amongst the ANP. I should not say I am surprised because it has obviously been a real challenge for Afghanistan in terms of their education programs. That surely must also limit the effectiveness of your own training if these officers are not able to read the laws of their country. How is that handled?
Mr Drennan : To put this in perspective, I agree that there is a low level of literacy, but the role that they are performing is one of a fairly basic policing role which is security focused. Of course, that will transition as Afghanistan transitions. So it is not as if these officers are preparing a complex brief of evidence for the court. The training there has basically been in patrolling. There has been training with NCOs, non-commissioned officers, and there has also been training in relation to evidence collection. I have witnessed officers undertaking training on evidence collection, and young, illiterate officers are given a sketch pad and a pencil and also a digital camera and a tag, and are able to draw a sketch plan of where evidence is located. Then they take a photo of that, tag it and keep it for evidence, which is part of what the training is. You would be pleasantly surprised at the level of aptitude they have to be able to pick up some of those very basic and fundamental policing skills without any level whatsoever or a high level of literacy.
Senator RHIANNON: Just on the literacy, does AusAID or does AFP run the literacy programs for the ANP?
Mr Drennan : We do some literacy training as part of their training, but the broader literacy is not something we are involved in.
Senator RHIANNON: Do you ensure that AusAID have done some programs to assist them?
Mr Drennan : AusAID—and I think the question is probably directed to them—have two types of program that they are running across the board in relation to literacy. I know that they do some but, to be specific in relation to the police that we have trained, I would have to take that on notice.
Senator RHIANNON: Thank you. Moving on to Sri Lanka, I have just been reading about some of the developments there. There are a couple of reports I have come across and I wanted to check with you if you understand they are publicly available. I have been trying to get hold of the memorandum of understanding on legal cooperation against people-smuggling between Australia and Sri Lanka from November 2009.
Mr Colvin : Is that an MOU that the AFP is a signatory to? It does not ring a bell.
Senator RHIANNON: I understand that there is an AFP connection. I have just seen it referenced when I have been reading and I thought as—
Mr Colvin : It would be unusual for us to call an MOU on legal cooperation, which makes make me feel that perhaps it is one that the department has entered into. It is not a MOU that we would normally enter into so I could not say whether it is publicly available or not.
Senator RHIANNON: You are also saying it is not your document.
Mr Colvin : I do not believe so. I stand to be corrected. I am sure someone is checking that right now.
Senator RHIANNON: So you will take that on notice to confirm if it is your document or not?
Mr Colvin : Could you just read the title of the document as you understand it again?
Senator RHIANNON: Memorandum of understanding on legal cooperation against people-smuggling between Australia and Sri Lanka.
Mr Colvin : No, I just had confirmation that it is not our MOU.
Senator RHIANNON: Thank you. The other document that I am after is the MOU on combating transnational crime and developing police cooperation between the Australian Federal Police and the Sri Lanka police service. It is also a 2009 document, dated May.
Mr Colvin : That does sound like a document that would be ours. In fact, I think I may have been the signatory to that document. We would have to check as to whether it can be made publicly available. I will take that on notice.
Senator RHIANNON: Thank you. I just want to pick up on the issue, which I think may have been covered before, of the brief from the International Commission of Jurists. It raised issues about the Sri Lankan High Commissioner and included allegations of war crimes. The brief was given to the AFP some time ago. Did the AFP investigate the allegations in this brief?
Mr Colvin : We evaluated the information in the brief. I believe some of the matters contained in the brief are still ongoing. However, in relation to some of the allegations we have completed the evaluation and have concluded that we will not be taking the investigation any further.
Senator RHIANNON: Could we just break that up into two parts. When you say 'evaluated', is that evaluation in terms of a desk evaluation, or did AFP officers visit Sri Lanka and speak to witnesses? Could you explain what 'evaluation' means?
Mr Colvin : I can confirm that we did not travel to Sri Lanka and visit and speak to witnesses. An evaluation really depends on the information that we are provided and whether the information can be corroborated and whether we believe that we can elicit evidence to support the allegations or information that we were provided. In terms of the ICJ referral, it was effectively and mostly a desk evaluation involving the legislation that would be relevant, the ability for us to collect evidence and the allegations. We did not go to Sri Lanka to make inquiries.
Mr Negus : If I can add to that, the evaluation obviously considered issues of diplomatic immunity and also issues around there being little prospect of a prosecution in this country. I understand you have had a private briefing from Assistant Commissioner Jabbour on the facts around this. If there was something more that you needed we would be happy to provide a supplementary briefing to you on that.
Senator RHIANNON: Thank you very much Mr Negus. I appreciated the briefing; it was very helpful. It would also be useful to see what you are free to put on the record. In response to my earlier question, as well as the evaluation you said that there were some matters ongoing. Are you able to give some framework to that?
Mr Colvin : You may recall that at the time there was the ICJ referral plus there was other information. Some of it was in the media and there was a range of sources alleging certain war-crime-related offences. There is still one aspect of that that we have had an open investigation in regard to and, given that it is an open matter, there is a limit to what I can say on the public record.
Senator RHIANNON: Sorry, I missed the last bit.
Mr Colvin : Given that that matter is an open investigation, I am limited to what I can say on the public record.
Senator RHIANNON: Okay, thank you very much. I want to pick up on some of your work with RAMSI because you provided some useful information to put in questions on notice about the wind-down. It was interesting to read about that. I noticed that in the questions on notice it is stated that the Participating Police Force 'will retain its regional multilateral arrangements under the RAMSI banner'. So, considering the wind-down is occurring, I would like more details of what you meant. There seemed to be a contradiction but maybe there is more to it.
Mr Drennan : It is fairly more accurate again to say that it is at transition, as opposed to a wind-down. As part of that transition there will be a reduction in numbers. The reduction in numbers will be across the Participating Police Forces, which are AFP of course, New Zealand police and the Pacific Island police. As we transition to more of a role of capacity development as opposed to front line support policing, we will require fewer numbers there, so there will be fewer numbers in those three categories of police who contribute to the Participating Police Force.
Senator RHIANNON: Is the PPF the only one out of RAMSI that will be a multilateral arrangement? From my reading, the other arrangements are bilateral.
Mr Drennan : The Participating Police Force forms part of RAMSI. RAMSI is a broader whole-of-government mission for the Solomon Islands. Yes, you are correct; RAMSI will transition in some aspects of that, which are not the police parts, to a bilateral arrangement as opposed to multilateral. But the Participating Police Force will remain as a multilateral or multiorganisational police force to support the Solomon Islands police.
Senator RHIANNON: How many officers are we talking about who will remain there when we move to this new stage and what is the budget for them?
Mr Drennan : The numbers will draw down in total to 154 by June 2013, consisting of 109 AFP, 17 New Zealand and 28 Pacific Islands.
By comparison, currently there are 109 people—110, because there is a member of the New South Wales Fire Brigade there—from Australia who are part of the PPF, 23 from New Zealand and 31 from the Pacific Islands. Of course, that is all subject to budget, but that is our current proposal.
Senator RHIANNON: Can I just check those figures, because there barely seems to be a transition. You said from 110 to 109 for AFP, 23 to 17 for New Zealand and 31 to 28 for Pacific Islanders?
Mr Drennan : Yes, that is correct.
Senator RHIANNON: It really is not significant.
Mr Drennan : It is not. As I say, it is a transition and it will transition over a number of year. But as I said, through to June 2013 that attrition is 164 down to 154.
Senator RHIANNON: So what does transition mean? Statistically it is just not significant, so it would seem as though your police operations will be at the same level.
Mr Drennan : No, that transition, as I explained just a short time ago, is actually the focus of the role. So, transitioning from a participating police role, which was very much in-line, front-line support policing for the Royal Solomon Islands Police Force, to one that is more one-step back and one-remove, providing capability development and capacity development. The numbers will reduce over a period of time, but certainly for the next 12 months that reduction is only slight. But, as I said, the focus of the role performed by the police there is what changes more significantly.
Senator RHIANNON: Do you have a plan to actually reduce the numbers? Do you have a target of what the AFP numbers will be reduced to in five years, two years, 10 years?
Mr Drennan : No, other than that it is—I guess the best way to put it—condition based. As the Royal Solomon Islands Police continues to develop, then the numbers that would be required to support them will continue to reduce. Of course, our ultimate goal is that they would not require any support or any capacity development but, to be realistic, that will take some time.
Senator RHIANNON: You said that the job will now shift to capacity building. Can you define that, and would it mean that AFP would not be involved in any operational work and would just be within the station? If you could provide the details, it would be useful.
Mr Drennan : Yes, Senator, it is probably a complex issue to respond to, but in some areas it would mean that instead of being on the front line and working, doing patrols with the Solomon Islands police, they would be back in the station, developing their management and their leadership and their intelligence in relation to where they should do their patrols, on what frequency, and what numbers. In other cases, say public order management, it would actually be providing the public order management training with them, and then providing an oversight role when they are deployed. As that progresses, less of an oversight role would be required and it would be more moving back toward those fundamentals of management and strategic direction. So each area of the Royal Solomon Islands Police will develop at a different pace, depending on the complexity of the particular role they play. It also will develop depending on the geography; as I say, those people who are based in Honiara, where the majority of the participating police force are and where the majority of the Royal Solomon Islands Police work is, will probably progress quicker than those in some of the more remote stations and locations dispersed throughout the Solomon Islands. So, it will depend on the role, it will depend on their location, and it will depend on the individual officers, and areas of the Solomon Islands police as to how quick their capacity develops.
Senator RHIANNON: But surely that work has been going on up until now. Has that not been part of how RAMSI is working? That you have been doing that as well as front line?
Mr Drennan : It certainly has, Senator. Those things have been progressing in tandem. But what I am saying is that the front-line work we are doing will be the secondary type of work and the most prominent work we will be doing will be continuing with the capacity building, but more and more focused on that over time.
Senator RHIANNON: Thank you for spelling it out, but there is a lack of detail there in terms of assessing how one stage is different from the other stage. Can you supply the committee with any criteria that the AFP have developed in terms of determining where the local police are at so you can make the assessment to what degree the AFP need to remain there?
Mr Drennan : Certainly, Senator. This is an ongoing process and we constantly review the work that we are doing there. There was a recent review of RAMSI which picked up the participating police force as to where we are at. We are constantly readjusting the levers on the type of work we are doing in the capacity development work, and we are constantly planning as to what the next phase is and what the requirements will be for the Royal Solomon Islands Police in their development. None of this is static. This is a constantly moving feast in that we are constantly reviewing, refining and planning for the future. Our ultimate goal is to ensure that the Royal Solomon Islands Police Force is a capable police force which can undertake policing in the Solomon Islands by themselves. The sooner we can achieve that the better. As I said before, we need to be realistic and that is why we constantly review and refine what we are doing, to give ourselves the best chance of success and to be there for the minimum time that we need to, but to ensure that we actually get the job done.
Mr Negus : Could I add one important thing to give this a bit of context. On 26 April this year, the Minister for Defence announced the withdrawal of the combined task force, which is our military component of what is happening over there as well. That was to commence on 1 July 2013 and be completed by 31 December. All of the Australian military who are there will transition out completely. The AFP will have to fill some of the void—not replace them—with regard to the mentoring and development of the local police in that regard. This is also subject to budget next year, and we are currently working through proposals which will be considered by the government at the appropriate time, in the next budget process, about what sort of numbers are required to transition back to zero, because ultimately Australia would like to, from a policing perspective, hand over full responsibility back to the Royal Solomon Islands Police. We are currently pulling together those issues and that will be considered by the government in due course, about the length of time it will take to transition fully back to the Royal Solomon Islands Police. Beyond 2013 it is really difficult for us to comment on what that will look like.
Senator RHIANNON: You do not have any budget position yet on what is required?
Mr Negus : No. That is to be considered in the budget's lapsing at the end of 2013.
Senator RHIANNON: In summary, do we say that really the role of the AFP in the Solomon Islands has not changed enormously; it is that there may be less front-line work—so we can get it down to a couple of sentences.
Mr Negus : It has been a slow process, but I think it was understandably so. The capability level seven or eight years ago when this started was very low. They have been built up now to a point where the Solomon Islands police do take primary responsibility for responding to incidents. They do that quite well. We continue to transition to them to take full responsibility. Again, they have a new commissioner who has been appointed there earlier this year from the UK, who has a one-year contract. His tenure there will be important in the further development of the Solomon Islands police. We are trying to make sure that we transition in a way that does not lose the security gains that have been made in the Solomon Islands. I was there only a few months ago. It is now a place that is much better; there is a lot more investment, a lot more people feeling at ease than there were only a few years ago. We are trying to transition in a way that does not have that go back to where it was with the riots and the demonstrations that we had some years ago where people were badly injured. It is a delicate balance between having the right amount of people there and transitioning to a point where we can hand over full responsibility to the Solomon Islands police. It is a slow process, I grant that, but it is a process that has been done very carefully.
Senator RHIANNON: Thank you, Commissioner. You have spelled out that the aim is to eventually be able to hand over. Don't you have a target, though, of what you are aiming for? I did ask before and I was surprised, but isn't there some timeline that you are aiming at?
Mr Negus : We do have those, Senator, and they are conditional on the security aims being continued and met at each of those checkpoints, if you like. Again the budget next year will put that to government for consideration about what we think, but it is premature for me to put that on the public record at this stage, because we are working through those issues at the moment.
Senator RHIANNON: Just one final question: to go back to the submission of the International Commission for Jurists, when you did your evaluation did you seek any advice from any other departments—from ASIO or DFAT—in making that evaluation?
Mr Colvin : I will take that on notice. We did seek advice from other departments, but as to the specifics of which departments I would need to take that on notice. Certainly, the evaluation is not something the AFP in such complicated matters can do on its own. I have just been advised: A-GD and DFAT.
Senator RHIANNON: Thank you.
Mr Drennan : Just to clarify an earlier matter relating to Afghanistan and literacy: literacy training is part of the Afghan Uniform Police basic training course, which runs for eight weeks. With regard to the middle management training that we do in Kabul I am advised that literacy there is quite good. In fact, a number of officers who have undertaken training programs have tertiary qualifications.
Senator XENOPHON: Could I ask some questions of the AFP in relation to the war crimes inquiry into the Balibo Five. I am aware of the sensitivities in relation to this in terms of what can and cannot be said. But, as I understand it, the inquiry was commenced in September 2009. Is that correct?
Mr Negus : That is correct.
Senator XENOPHON: I understand that the relatives of the Balibo Five were to be kept apprised on a six monthly basis; is that right?
Mr Negus : I think that is approximately right. Sometimes that has slipped slightly because of a lack of development, if you like, in that regard and we have had nothing more to tell them. But that was the intention.
Senator XENOPHON: On notice, could you advise how many briefings there have been of the relatives of the Balibo Five since September 2009? In terms of the investigation, without going into the substance of it, can you advise whether the AFP have been to Indonesia, for instance, in respect of this matter?
Mr Negus : I think that would step into disclosing what things we actually have underway at the moment. We have undertaken a range of international inquiries on this, so I do not necessarily want to go into the areas that we have gone to. It would not help the process to step into where we have and have not been.
Senator XENOPHON: So you cannot advise whether you have been to Timor Leste, for instance, or to Indonesia?
Mr Negus : This matter is ongoing. I said from the very beginning and I think the press release we put out at the time said that it gives rise to complex legal and factual issues. This is something that happened, I think, 27 years ago.
Senator XENOPHON: Thirty-seven years ago today. Today is the anniversary.
Mr Negus : We said it could be problematic and we said it would take a range of offshore inquiries to come back to us, to then make a decision on whether it was even feasible to go ahead. So we are still in that information- gathering phase. We have not made a decision on whether it is feasible and whether the jurisdiction can be applied from the Australian perspective. We have done our best to keep on this matter and hurry it along, but we are reliant on things coming back from overseas, which has slowed this matter down.
Senator XENOPHON: In answers to questions that Senator Madigan put to you, that some $470,000 was spent on this matter, can you on notice provide how much money, to date, has been spent on this investigation? Secondly, given that you have raised jurisdictional and legal issues, would it not have been a preliminary step to establish, firstly, if there was the evidence for a prosecution, whether that prosecution could in fact commence and whether you in fact would need the cooperation, for instance, of the Indonesian government in respect of any such prosecution?
Mr Negus : If I could say in a general sense that we would require the co-operation from overseas countries to do some of this. We have sought some of that and we are still waiting on a range of responses in that regard.
Senator XENOPHON: Can you indicate when you sought that cooperation from the Indonesian government?
Mr Negus : Again, I did not say it was the Indonesian government.
Senator XENOPHON: With any government?
Mr Negus : Traditionally, we do not talk about mutual assistance requests. They are really in the purview of the department and it does not help those inquiries to debate them here in a public forum and—
Senator XENOPHON: I am not seeking to debate them. Perhaps the secretary of the department could advise as to whether any request has been made for assistance from any government in relation to the AFP investigations into the death of the Balibo Five? Are you able to assist, Mr Wilkins, in respect of that?
Mr Wilkins : Sorry, what was the question?
Senator XENOPHON: I have been asking Commissioner Negus questions in respect of their war crimes investigation into the Balibo Five, which I understand commenced on 9 September 2009. Commissioner Negus quite rightly points out that there could be jurisdictional and legal issues about the cooperation of any other government in terms of parties being overseas. I direct you to the findings of the New South Wales coroner in respect of this. But the question is, has a request been made for cooperation of any government, for instance the government of Indonesia, in respect of the AFP's war crimes investigation into the Balibo Five? If so, on what date was that request made and has there been a response to that request?
Mr Wilkins : My understanding, and I will check this, is that we would not disclose the sort of information—
Senator XENOPHON: Not even that a request has been made?
Mr Wilkins : Under the terms of our mutual assistance arrangements, it is the sort of information which—and this is not something that the Australian government is singled out on but my understanding is that the protocol around mutual assistance is that information is not publicly disclosed in that way. So we would not affirm or deny any such communication.
Senator XENOPHON: But you would agree, Mr Wilkins, that for any investigation by the AFP to be effective, or rather for it to be drawn to any conclusion, there would need to be a request for mutual assistance, otherwise the AFP's investigation after some half a million dollars of taxpayers' money has been spent on it, will effectively go nowhere. The AFP could do all this work, and I do not do what that work is and I understand why Commissioner Negus is unable to go into much detail, but the AFP could come to certain conclusions but in the absence of any mutual assistance that investigation would go nowhere. Is that correct?
Mr Wilkins : I am not trying to be difficult but I simply do not know the answer to that question because I am not an investigator.
Senator XENOPHON: I know you are not an investigator but you are responsible, the department is responsible, for making requests for mutual assistance of another government.
Mr Wilkins : You asked me whether it was necessary in order to carry out an investigation for communications to be made with Indonesia. The answer is I have no idea, I am not an investigator.
Senator XENOPHON: Perhaps I did not appropriately put the question. Unless there is assistance from the government of another country if a suspect is indeed in another nation in respect of the Balibo Five then it is not going to go anywhere unless there is cooperation from another government. My question is, further to Commissioner Negus's answer, do you concede that in the absence of assistance from another country, another nation's government, the AFP investigation will be at a dead end in the absence of that cooperation?
Mr Wilkins : No, I don't, Senator.
Senator XENOPHON: So if there is not any cooperation from another government the matter can still proceed.
Mr Wilkins : I have no idea, I am not an investigator. I am not trying to be unhelpful but I think you are trying in another way to find out whether a mutual assistance arrangement has been made with Indonesia. I am not going to say to the committee one way or the other because we are bound under the terms under which that operates not to say that.
Senator XENOPHON: Could you provide on notice a copy of those terms of that mutual assistance agreement?
Mr Wilkins : Well, I can certainly provide you on notice with the requirements of mutual assistance treaties and with our arrangements with Indonesia, yes, I can do that.
Senator XENOPHON: I would be grateful for that. Perhaps I cannot take it any further. Perhaps I can have another three minutes on another line of questioning, Chair.
Mr Colvin : Madam Chair, in terms of briefings, April 2012 was the most recent briefing to the families, March 2011 and January 2010. Clearly we have not hit the six-month mark but, as the Commissioner has said, it is a matter of when—
Senator XENOPHON: I am grateful for you advising that. I have some questions for the AFP in relation to the Reserve Bank of Australia and the issue of the timeliness with which the RBA passed on material about Securency and Note Printing Australia when the AFP began its inquiry. Obviously this is a matter that has been the subject of much public debate. Is it fair to say, Commissioner, that the longer potential evidence is delayed being provided to you is something that is not desirable, that receiving information promptly from a government organisation in respect of an investigation would be preferable?
Mr Negus : In general terms that is a fair assumption of any investigation, yes.
Senator XENOPHON: Given the issues that you are aware are in the public domain—and it is not a criticism of the AFP—regarding Mr Hood's allegations that he provided a memo to the board or to the senior echelons of the Reserve Bank and that there was a delay of, I think, some two years before that was provided to the AFP, could you provide an indication as to the impacts this delay would have had on the AFP's investigation?
Mr Negus : These matters are currently before the court, and I think it is extremely dangerous for us to presume or pre-empt what might happen in the defence case that is yet to be put to that court. In a general sense, yes, it is preferable to have information provided to investigators as quickly as possible. It allows us to do a range of things with that. But I do not want to be drawn on the particular case with regard to this because, as I said, it is still before the courts and there are still a range of things yet to play out in that environment.
Senator XENOPHON: I understand that. Can you indicate in terms of the level of cooperation between the AFP and ASIC, for instance, in relation to this matter?
Mr Colvin : We have provided certain material to ASIC. We are in constant discussion with ASIC about matters that may be relevant to their mandate. They have been fully cooperative.
Senator XENOPHON: Can you indicate when you provided that information to ASIC, please?
Mr Colvin : We would have to take that on notice.
Senator XENOPHON: I would be grateful if you could. My understanding is that ASIC informed the AFP that it would not be investigating. Is that still the case or has that changed recently?
Mr Colvin : That is still the case. In fact, I do have the date in front of me—so my bad. On 23 January 2012 we referred material to ASIC. I am sure it is part of an ongoing discussion.
Senator XENOPHON: Sorry, what was that date?
Mr Colvin : It was 23 January 2012—earlier this year.
Senator XENOPHON: And when did ASIC say that they were not interested?
Mr Colvin : I do not have that date, but I believe they have reconfirmed more recently their decision not to proceed with that investigation.
Senator XENOPHON: Could you take on notice the date upon which ASIC told the AFP that they were not interested in investigating this matter further and whether the AFP has a view as to whether the time frame of that response would have given ASIC a reasonable opportunity to adequately go through the material, which I understand was quite considerable?
Mr Negus : We can take that on notice, but it is presumptuous for us to try to give a comment on whether ASIC have done things in a timely fashion. I do not think we could possibly answer that.
Senator XENOPHON: Finally, did ASIC provide the AFP with any advice as to why it was not investigating?
Mr Negus : We will come back to you on notice.
Senator XENOPHON: Finally, with the Chair's indulgence: did the AFP consider getting special dispensation from the Attorney-General to investigate corporate offences?
Mr Negus : We will cover that on notice as well and the response.
Senator XENOPHON: And, if yes, why.
Mr Negus : Yes.
Senator FURNER: I have questions on some seizures. Firstly, on drugs, would you mind explaining to the committee why there has been a substantive increase in drug seizures, particularly with respect to cocaine, precursors, amphetamine and amphetamine type substances? What has brought that on?
Mr Negus : Thanks for the question, Senator. I will pass to the Deputy Commissioner, Crime Operations, to give you a run through that.
Mr Colvin : Thank you, Senator Furner. As you quite correctly point out, the financial year 2011-12 saw a significant increase in our total weight reported of illicit narcotic substances as a result of AFP investigations—in fact, just under 15 tonnes of reported weight for that financial year as compared to 1.2 tonnes for the year before. There are a number of things and it would be very difficult for us to give a definitive answer as to why that is the case. But, of course, a large portion of that nearly 15 tonnes relates to a large seizure, 12 tonnes in total of seizures for precursor materials in the year 2011-12.
You have also pointed out that we have had a significant increase—almost three times—in the seizure of cocaine. This is a market driven force. It is supply and demand driven. We have said on other occasions there is a somewhat insatiable appetite in Australia for illicit drugs, particularly cocaine, and it is not uncommon for us to see large amounts of cocaine seized across state and territory police jurisdictions.
In terms of our seizures and why the seizure rates have increased, it is partly, as I said, due to supply and demand. You can draw conclusions as to the demand that is out there. But I think it is also as a result of the changed approach of the AFP and our partner agencies to the way we are addressing serious and organised crime. We have certainly changed our approach away from being driven by the commodity—that is, investigating just those groups involved in drug importation; groups in fraud—and have focused our energy towards looking at the vulnerabilities associated with organised crime. Like any other business entity, there are some things that they are very good at and there are some things where they are vulnerable. We have taken a much more holistic approach to crime and criminality.
We would never claim victory and we would certainly never want to trumpet those results, because organised crime is very adaptive and changes its methods to suits its needs, as we change our methods. But I think it is an early sign of some success. A large part of that success is reliant on the partnership approach that we now take to all of our serious and organised crime investigations. In fact, you will see from the annual report, which would have just been tabled, that in the 2011-12 financial year 58 per cent of our investigations in serious and organised crime were conducted under a formal joint agency agreement. Already this year that figure is hovering around 65 per cent. The reality of it is that they are matters that are under a formal agreement. There is very little that the AFP does in a crime environment that we do alone. Nearly all of our matters are very much a joined up partnership approach. There is a range of factors as to why those seizures are significantly increased from last year.
Senator FURNER: I also understand that there has been some significant increases in asset seizures from criminals—I believe $97 million this financial year alone from a recent seizure.
Mr Colvin : That is right.
Senator FURNER: How does that relate to previous years and what was involved in the capture of those assets amounting to that figure?
Mr Colvin : In the 2011-12 financial year the AFP restrained $97 million worth of assets. In that was over $10 million in cash alone. It is quite a hit on the criminal economy to take that type of illicit cash out of the criminal economy. That is a significant increase on the year before, which was $44 million, from memory. I will just quickly get the figure for the year before that.
Mr Negus : I think it was about $17 million or $18 million. It has essentially doubled year on year for the last three years. As I am sure the deputy commissioner will get to, that is a result of the new task force arrangements that we have in place with the tax office and the Australian Crime Commission and formerly the DPP. We also had laws changed to allow us to launch our own litigation from the AFP perspective. So there is a very, very different model in attacking organised crime, and this is a very key component too. It has been very successful, and I have to say that law enforcement agencies around the world are now contacting us, looking at the model and seeing how successful it has been, to adapt it to their own environment. So I think it is something that the parliament can be very proud of in changing the laws. Also, the agency is very proud of the partnership approach, bringing the resources of the tax office, the Australian Federal Police, the DPP and the Australian Crime Commission together in a multidisciplinary, skilled environment to attack the heart of organised crime, which is money. It has taken nearly $100 million out of that, which goes back to consolidated revenue—hopefully, eventually, after the restraining process and the forfeiture process is complete. It is something that is quite significant in that regard.
Mr Colvin : The only thing I will add to what the commissioner has said is that the AFP and our partner agencies have become far more aggressive in terms of the way that we are tackling the criminal economy. We are becoming far more aggressive in terms of identifying and removing cash and assets from the economy. That is simply because we know that organised crime has vulnerabilities. Like any business, it needs cash flow and, particularly for organised crime, it needs to find ways to convert its ill-gotten gains into ostensibly assets that it can use and reply upon. That is a weak point, and that is what we will continue to target.
Senator FURNER: I have one last question on seizures. The annual report indicates that identity security strike teams conducted 10 operations, resulting in 14 arrests, 53 offences and somewhere around $55 million. Does that relate to any particular area? Is it credit card offences or is there something else involved in that?
Mr Colvin : Mostly it is credit card offences. But, again, identity theft and identity crime is a core facilitator of other crimes as well. Again, that is why we are tackling that vulnerability. It is difficult for serious and organised crime to exist using legitimate identities and in a legitimate trade. So, you are correct, Senator: we have increased our activities and efforts on identity theft and identity crime. A lot of it is credit card fraud.
Senator FURNER: On a positive note, Commissioner, can you pass on to your officials or officers in Brisbane about their professionalism with regard to investigating complaints from Queensland MPs about a threatening email which has led to a conviction. I was very impressed with the officer who interviewed me. They should be highly commended for the work they are doing there.
Mr Negus : Thanks senator. I will make sure that is passed back.
Senator HUMPHRIES: I have lots of questions but most of them will go on notice. I want to ask just quickly about the three maritime vessels that have been provided to Indonesia to assist with border protection activities. When were the vessels provided?
Mr Colvin : They were provided in December 2011.
Senator HUMPHRIES: So they commenced service immediately in Indonesia?
Mr Colvin : I believe so, yes. There may have been a short delay but it was effectively immediately.
Senator HUMPHRIES: How much did they cost?
Mr Colvin : We were allocated $7.1 million under an initiative by government to build and purchase these vessels. Some of that was also operating costs for the vessels. So, it was $7.1 million in total. I would have to back and check exactly what each vessel cost to build.
Senator HUMPHRIES: If you could take that on notice: how much they cost. Were they built in Australia?
Mr Colvin : They were built by an Australian company. From memory, they were built in Singapore.
Senator HUMPHRIES: Right. If I could have the specifications for them as well—size, displacement, things like that. In what sea states can they operate?
Mr Colvin : I would have to check that. They can operate out for about 20 nautical miles but I am not sure what their sea state is.
Senator HUMPHRIES: Twenty nautical miles?
Mr Colvin : Approximately, yes.
Senator HUMPHRIES: So they are quite small vessels. They are not meant for sort of crossing the Timor Sea.
Mr Colvin : That is right. They are 16 metre coastal vessels, if you like. Therefore, they are patrolling what a police force would normally patrol. They are not a coastguard and they are certainly not a navy vessel.
Senator HUMPHRIES: Do you know what sort of capacity they have to carry passengers?
Mr Colvin : We would know that but I do not personally know it. I will take that on notice
Senator HUMPHRIES: You mentioned that there was also money there for sustainment of the vessels. Is that just for their operation or is it for training of personnel? What does that cover?
Mr Colvin : It was all of the above. There was some training that we provided to the crew of these vessels. There were also agreements in the contracts about maintenance, that some would be the responsibility of the Australian government, and then there would be a point at which they would be handed over totally to the Indonesian government. There were also funds in relation to ongoing costs such as fuel et cetera. That all has a sunset clause on it. Obviously, we will not be providing that assistance ad infinitum.
Senator HUMPHRIES: If you could, please let me know when the sunset clause cuts in, as to when it finishes or has finished. Were the Indonesian police trained in Australia or in Indonesia?
Mr Colvin : They were trained in Indonesia and I believe we also took some of the crew to Singapore so that they could be a part of understanding the vessel's specifications as it was being built. Just so that I am clear, the funding for these vessels has effectively finished so any ongoing funding that the AFP provides would not be out of that initiative of $7.1 million from the government.
Senator HUMPHRIES: Can you tell me how the vessels have been deployed since they were handed over to Indonesia, as in terms of the number of patrols, where they have gone?
Mr Colvin : I think the first point would be to say that of course the IMP is part of the Polair, surprisingly enough, although they are part of the marine wing of the police air wing. These three vessels form part of a much broader fleet and within that fleet they have a range of vessels that have a range of capabilities. The vessels are deployed according to the needs of the IMP and to best fit the operational requirements that they are dealing with. They have been deployed to Banten. Two of the vessels were deployed to Banten and one to Lampung. Whether they are still there would be a matter for the IMP. They may need to operationally move them; I am sure they do. During the period 1 April 2012 to 31 July 2012 the IMP conducted 55 patrols specifically targeting people smuggling and transnational crime threats, which was the genesis and the cause for us gifting these vessels to them.
Senator HUMPHRIES: Great, thank you. Just a couple of more questions: do the vessels have geotracking capacity?
Mr Colvin : I will take that on notice.
Senator HUMPHRIES: Are we considering making similar arrangements for the police force or possibly the navy or defence force of Sri Lanka?
Mr Colvin : We are not making those considerations, no. We would not comment on Navy or coastguard considerations, but from a police perspective—
Senator HUMPHRIES: I was probably looking more at Mr Wilkins when I was asking that question. Mr Wilkins, can you tell me whether the arrangement that has been entered into to supply maritime vessels to Indonesia is being considered for replication in Sri Lanka?
Mr Wilkins : I have no idea. I do not even know about the original procurement, so it has nothing to do with this department.
CHAIR: Thanks officers, we have finished with the AFP for this afternoon. Thank you very much for your time this afternoon for our estimates process. I ask representatives from the Australian Government Solicitor to come forward. Mr Govey, do you have an opening statement this afternoon?
Mr Govey : I do. Senator Brandis wrote to me last Friday to advise that he wished to ask AGS a series of questions about the Federal Court proceedings brought by Mr Ashby against the Commonwealth and Mr Slipper. He also asked that AGS lawyers involved in this matter be available to respond to questions.
In light of his letter I thought it was important for me to explain to the committee AGS's position in relation to this request. That position is, essentially, the same as that taken when Senator Brandis made an analogous request shortly before the February additional estimates in relation to Fair Work Australia investigations into the Health Services Union. Senator Brandis also asked on that occasion that he be able to question the AGS lawyers who advised on the Health Services Union investigations.
In my opening statement at the February estimates I set out the longstanding position of successive governments on what legal advice can be disclosed and who is responsible for this disclosure. I think it is important that I again state our position on disclosures, which is taken from former Attorney-General Daryl Williams's correspondence in letters to the then President of the Senate. He sent two letters—on 12 May 1999 and on 17 November 2000.
That correspondence can essentially be reduced to five points which affect the situation here. The first is that the principal function of AGS is to provide legal services to the Commonwealth, its ministers and its agencies. Second is that AGS is in a solicitor-client relationship with its government clients and has in relation to those clients and to the courts the same legal obligations as are owed by private sector lawyers to their clients and the courts. Third, AGS's legal obligations, such as the maintenance of legal professional privilege and avoidance of conflicts of interest, make it appropriate for questions about client matters to be the responsibility of the relevant client agencies rather than AGS.
The fourth point is that if AGS were required to provide such comments or advice our solicitor-client relationship and our effectiveness as a source of legal advice for the Commonwealth, its ministers and agencies may be compromised. The fifth point which flows from that is that accordingly questions about AGS's client matters should be addressed directly to the client agency. However, following consultations with the Attorney-General's Department as the client agency I am able to make some comments in relation to the Slipper and Ashby matter having regard to the recent public comments and commentary about the terms of the settlement reached by the Commonwealth in these proceedings, including the claims that have been made that the settlement did not conform with the requirements of the Legal Services Directions. What I can say is necessarily restricted in its scope. Proceedings between Mr Ashby and Mr Slipper are on foot still, and Mr Slipper's application to have the proceedings dismissed as an abuse of process is presently reserved for decision.
I do want, however, to address three related matters which are outside the scope of what is left for determination by the court. The first matter concerns the public queries which have been raised about the fact that shortly before its final offer of settlement on 26 September this year the Commonwealth filed an application for summary judgement. This conduct has been queried publicly, suggesting an inconsistency between the Commonwealth's conduct in the court proceedings and its approach to settlement. This criticism is in our opinion misconceived. Mr Ashby brought two claims against the Commonwealth. The first was for a breach of the Fair Work Act, the second was for a breach of contract. On 7 September the Commonwealth filed an application for summary judgement, but only in respect of the contract claim. This application was made on the basis the claim was barred by section 44 of the Safety, Rehabilitation and Compensation Act 1988. The Commonwealth did not seek summary judgement in relation to Mr Ashby's claim under the Fair Work Act. There is therefore no inconsistency between the settlement of Mr Ashby's claim and the filing of that application for summary judgement.
The second matter concerns queries that have been raised publicly about how the offer of $50,000, which was ultimately accepted by Mr Ashby, could be offered by the Commonwealth consistent with the requirements of the Commonwealth's Legal Services Directions. In our assessment such an offer was appropriate and in compliance with the Legal Services Directions. The relevant criteria for settling monetary claims are set out in appendix C to the Legal Services Directions. The threshold requirement for a settlement is that written advice is obtained that a settlement of the amount proposed would be in accordance with legal principle and practice. This requires in turn the existence of at least a meaningful prospect of liability being established. Legal advice was given that this requirement had been met. A meaningful prospect of liability does not mean that the claim must be strong or likely to succeed. A moderate or relatively low risk of liability can be meaningful and therefore satisfy the threshold requirement for a settlement.
The Legal Services Directions make it clear that in determining the settlement sum to be offered the costs of continuing to defend the claim are to be taken into account in determining the sum to be offered. Those costs represent one aspect of the financial risk to the Commonwealth of pursuing its rights, as is referred to in clause 43 of the Legal Services Directions. However, even if a question of costs were not taken into account, the settlement letter specifically contemplated that a court may award Mr Ashby an amount for future economic loss in addition to the other amounts specifically identified in the letter. While recoverable damages can never be calculated with mathematical precision, the amount offered broadly reflected the potential heads of damage which Mr Ashby may have been entitled to if he made good his claim. Given these matters, again there is no basis for the claim that the settlement was in breach of the Legal Services Directions.
The third matter I wanted to mention relates to some public suggestions that there is an inconsistency between on the one hand the Commonwealth making an application for summary judgement on the basis that the proceedings were an abuse of process or brought vexatiously and on the other hand the Commonwealth making an assessment under the Legal Services Directions that the claim by Mr Ashby had a meaningful prospect of success.
In relation to this issue, it is important to make two legal points to understand the action taken by the Commonwealth. First, it is well established that a court's power extends to the prevention of an abuse of process even if the moving party has a prima facie case, or must be assumed to have a prima facie case, and there is High Court authority to that effect from 1992. Accordingly, it is open to a court to make a finding of an abuse of process even when a prima facie case exists. Second, the legal services directions provide that a settlement requires the existence of at least a meaningful prospect of liability being established, as I have indicated previously. The directions also state that a settlement is not to be agreed merely because of the cost of defending what is clearly a spurious claim. The Commonwealth did not allege in the course of the litigation that the claim made by Mr Ashby was a clearly spurious claim. The basis on which the Commonwealth sought to have the proceedings dismissed was that they were brought for an improper collateral purpose. The full basis on which the Commonwealth sought summary judgement is set out in the Commonwealth's points of claim, which is published on the Federal Court website.
I hope that these comments assist the committee in understanding the Commonwealth's handling of this case.
CHAIR: Thank you, Mr Govey. That does go some way, and I do understand you had at least one senator write to you directly. While there is nothing this committee can do to stop or avoid that, we do try and facilitate communication through the whole committees generally in the lead-up to estimates. As chair, I was certainly not aware of that communication, so we might have a discussion about that in our subsequent committee meetings in the lead-up to February. Senator Brandis, I think you are going to lead off.
Senator BRANDIS: Mr Govey, I want to reassure you that I will not be asking about the content of legal advice, of course, but you rightly anticipate that I do have a number of questions about action NSD 580 of 2012, Ashby v the Commonwealth of Australia and Peter Slipper.
CHAIR: Senator Brandis, I am sorry to stop you midstream, but I am going to ask Mr Govey if he has his opening statement and if it is in a form that he can table.
Mr Govey : I think we have a copy. There are handwritten notes on it but that is fine from—
CHAIR: We do not need your handwritten notes; it is okay. Sorry, Senator Brandis.
Senator BRANDIS: In those proceedings, the Australian Government Solicitor acted for the first respondent, the Commonwealth of Australia?
Mr Govey : That is correct.
Senator BRANDIS: Who had the conduct of the matter within your office on behalf of the Commonwealth?
Mr Govey : There were a number of lawyers involved from AGS, quite a large number. There are three whose names are on the public record.
Senator BRANDIS: Are they Catherine Mann, Sarah Wright and Richard Harding?
Mr Govey : Richard Harding's name is on the public record. There is also a fourth person.
Senator BRANDIS: Who was that?
Mr Govey : That is Damien O'Donovan.
Senator BRANDIS: Oh, Damien O'Donovan. That is right. He is the man who signed the offer of settlement, didn't he.
Mr Govey : There were, I think, another 13 on top of that who were involved in perhaps lesser ways along the way.
Senator BRANDIS: Who were they?
Mr Govey : I can obviously give them to you, if you insist, Senator.
Senator BRANDIS: I do.
Mr Govey : Can I just record that it would not usually be appropriate to disclose the names of the lawyers who have been acting, and I qualify that also by saying that there were presumably also graduates and paralegals and I do not have their names. As I say, the extent to which they were involved will have varied quite considerably.
Senator BRANDIS: Sure.
Mr Govey : Their names are: Gareth McCasker, Hervee Dejean, Jacqueline Ibrahim, Karina Harvey, Paul Vermeesch, Paulina Fusitu'a, Simon Daley, Tim Begbie, Tom Howe QC, Tracey Williams, Andrew Dillon, Kathryn Graham and Robert Orr QC.
Senator BRANDIS: Who was the principal solicitor with the conduct of the matter on behalf of the Commonwealth?
Mr Govey : Damien O'Donovan.
Senator BRANDIS: As between Damien O'Donovan and Catherine Mann, what was the relationship? What Catherine Mann a lawyer who worked correctly to Damien O'Donovan?
Mr Govey : Yes, I think that would be a fair assessment.
Senator BRANDIS: Mr Govey, what was your involvement, if any, in relation to the matter?
Mr Govey : I did not have any direct involvement in the matter but obviously I was—
Senator BRANDIS: Were you consulted?
Mr Govey : Not in relation to legal strategies, if I could call it that, or legal advice. But obviously I was kept abreast of what was happening having regard particularly to the public comments that were being made about the matter.
Senator BRANDIS: Roughly how frequently where you kept abreast? I am not going to tie you down to a very precise figure but was it on a weekly basis or a more than weekly basis that you were kept abreast of what was going on?
Mr Govey : It was much more ad hoc than that. I was occasionally told about material that was thought to be of interest and I occasionally asked questions, but there was no regular briefing. As I say, it was very much an ad hoc arrangement.
Senator BRANDIS: You yourself made no decisions in relation to the conduct of the litigation from the Commonwealth's point of view?
Mr Govey : I think that would be a further comment.
Senator BRANDIS: Mr Ashby's originating application was filed on 20 April 2012 and the last, though this is slightly controversial, but as far as I can see the last involvement in any respect of the Commonwealth of Australia was submissions made before Justice Rares by Mr Burnside QC on Thursday, 4 October 2012 when there was some debate about the terms of settlement. In the period between 20 April and 4 October, approximately how often were you consulted, roughly?
Mr Govey : I really could not give a figure to that. I would not even describe the process as one of one of consultation. It was more a case of keeping me informed. As I say, it was so irregular that it would be a wild guess.
Senator BRANDIS: It is not very important to me so I will not press that. The 13 lawyers that were involved, did that include or exclude Catherine Mann, Sarah Wright and Damien O'Donovan?
Mr Govey : That excluded them.
Senator BRANDIS: So there were 16 lawyers involved within your office.
Mr Govey : Seventeen, because of Richard Harding.
Senator BRANDIS: Of course. Mr Harding was served with some documents. He is very peripheral, I think. Is it the practice for each of your officers to keep timesheets?
Mr Govey : That is correct.
Senator BRANDIS: So in respect of each of these 17 officers we would expect to find timesheets which would record the length of time they spent on the Ashby and Slipper matter and a brief description of what they did in relation to the time expended.
Mr Govey : I would expect that was the case without knowing it as a matter of certainty.
Senator FIERRAVANTI-WELLS: Mr Govey, having spent many years at the AGS, I would say that it would be in great detail that you would hold that. Surely that is material that would have been available to you in terms of billing the Commonwealth. My recollection is that the units, certainly when I left, were six-minute units and they were worth a certain amount per lawyer depending on what level that lawyer was.
Mr Govey : That is correct. Those narrations would have been used as the basis for providing invoices.
Senator FIERRAVANTI-WELLS: Can I say that is a lot of lawyers. I have never heard in all my 20-year association with the AGS that number of lawyers involved in a Commonwealth case. It is extraordinary.
Mr Govey : I agree it is a very significant number.
Mr Govey : This was a very significant matter and it raised a range of issues.
Senator BRANDIS: It settled for $50,000.
Senator FIERRAVANTI-WELLS: It settled for $50,000, Mr Govey. I was involved in matters that settled for well over $1 million where it was me and perhaps a paralegal. That is extraordinary, Mr Govey, to expend that sort of money for a case that settles for $50,000. I have never heard of it, in my whole 20 years' involvement with the AGS.
Mr Govey : I would not want to give you the impression that these lawyers were all working in relation to the settlement of the matter for $50,000. There were a range of related issues that they were involved in. It is also important to note that—and I have not got any direct information about this but my sense would be—some of these lawyers would have a very minor involvement.
Senator BRANDIS: Still, I think Senator Concetta Fierravanti-Wells is right though. Senator Fierravanti-Wells worked for the Australian Government Solicitor as a solicitor. I was instructed very often by the Australian Government Solicitor as counsel. I remember in particular in 1995 and 1996 being instructed by the Australian Government Solicitor in what turned out to be the biggest price-fixing case in Australian history to date, in which the settlement was $26 million. It went for nearly three years and there were two solicitors from the Australian Government Solicitor plus Mr James Lambie from the Trade Practices Commission. Three lawyers for $26 million over three years in a very big case against 17 lawyers over six months for a $50,000 case does seem to be a bit disproportionate, Mr Govey.
Mr Govey : I think that describing the 17 lawyers working on a $50,000 case would not be an accurate characterisation of what happened.
Senator BRANDIS: Mr Govey, I read all the court documents in this case earlier this week. It did not take me a day. There is not a vast bulk of evidence in this case. In any event, I do not want to belabour the point. Let's move on. At least you have anticipated a question I was going to get to and that is, how on earth did the Commonwealth concur $730,000 in legal fees in a common law garden sexual harassment case. I think we now know. Mr Govey, I ask this for the record but I think you have already indicated in your opening statement: are you satisfied that at all times the obligations imposed by the Commonwealth Legal Service's directions were complied with?
Mr Govey : In relation to the settlement of this matter?
Senator BRANDIS: In relation to the entire matter.
Mr Govey : I am certainly not aware of anything—and in fact I am not aware of all of the facts of this case and all of the handling of this case—that would constitute a breach of the legal service's directions.
Senator BRANDIS: All right. I might ask Mr Damien O'Donovan, Ms Catherine Mann and Ms Sarah Wright to come to the table please.
Mr Govey : Senator, consistent with the position that I have taken, I am not volunteering that anybody from AGS who was involved in the case be—
Senator BRANDIS: But I have got questions for those three individuals.
Mr Govey : As I say, the position that I have outlined, and I outlined it in February and I have outlined it again today, is that AGS lawyers are not voluntarily made available by AGS for questioning.
Senator BRANDIS: I know. I asked for them to be. I am not asking you to volunteer them. I took the trouble to write to you to tell you the witnesses are required.
Mr Govey : In fact, if I read that literally, you would have required all 17 lawyers to be here. As I say, I took the view, as I did in February consistently with the position taken by former Attorney-General Williams, that it would not be appropriate for me to bring those witnesses along for questioning.
Senator BRANDIS: So are you telling us that in this litigation, which has been certainly among the most important litigation in which the Commonwealth of Australia has been involved this year, and about which I specifically advised you as a matter of courtesy last week that I had extensive and detailed questions that would require the knowledge of those with the conduct of the litigation, you chose not to ask the solicitor who had the principal conduct of the litigation to attend today. Is that what you are telling me?
Mr Govey : No, I made a call that, consistent with our obligations as solicitor on the record on this matter, that it would prejudice our role—
Senator BRANDIS: You do not know what questions I am going to ask.
Mr Govey : and the position of the Commonwealth, as I say, if AGS lawyers were to be made available and that, as former Attorney-General Williams made clear, unless the client agency adopts a different position, it is for the client agency, in this case the Attorney-General's Department—
Senator BRANDIS: It is not an agency, it is the Attorney-General's Department and these are the Attorney-General's estimates, so you cannot hide behind that one, Mr Govey. Anyway, is Mr Damien O'Donovan here?
Mr Govey : I was trying to point out that it is for the client agency, in this case the Attorney-General's Department, to respond to questions about the handling of this and other matters.
Senator BRANDIS: What is the issue, Mr Govey, is the way in which the Australian Government Solicitor has conducted this litigation and the competency with which it has conducted the litigation. Many of my questions will be directed to that matter. Now, is Mr Damien O'Donovan here?
Mr Govey : He is.
Senator BRANDIS: Mr O'Donovan, would you come forward please?
Mr Govey : Senator, can I just—
Senator BRANDIS: I have got some questions for Mr Damien O'Donovan, the principal solicitor.
CHAIR: Mr Govey, can you just clarify here that you would prefer all questions to go through you as the CEO?
Mr Govey : Subject to what the minister and the secretary would say.
Senator Ludwig: Chair, I think it is a matter for Mr Govey. If he wants to answer any questions, he is entitled to do that as CEO of the AGS. That would be my understanding. This is not a case where you can call witnesses and appear. In this instance, Senator Brandis has got questions; he is entitled to ask the questions and he is entitled to get an answer to those questions. That has always been clear at estimates. Calling of individual witnesses by Senator Brandis in an estimates process is not one—I am subject to the clerk's advice on this—that Senator Brandis can rule in his favour when you have the CEO of the organisation saying, 'I am entitled to answer all of the questions on behalf of the particular agency'. If the CEO decides to then let the witness appear, that is a matter for the CEO.
Senator BRANDIS: Minister, this is not as big a dispute as you think it might be. I simply want answers to questions about this litigation and I am, of course, subject to the rulings of the chair. Mr Govey has been at pains to tell us that he had no involvement in the litigation. The litigation to the extent of his involvement was to be told what was happening. He made no strategic decisions and he could not even estimate how often in the six or so months it ran how often he had been consulted about it. I can put these questions to Mr Govey but, given his very limited state of knowledge of the litigation, he is going to have to ask Mr O'Donovan. It would simply speed things up a lot, and be a more efficient use of the Senate's time, if I could put those questions to Mr O'Donovan directly.
Senator Ludwig: I do understand the point you make, Senator Brandis. At many a time here at estimates a range of officers have come to the table and volunteered their services and provided answers. Again, it is either at the discretion of the Secretary if they are public servants in relation to what public servants may appear and provide information, or the Secretary can provide that themselves, or, alternatively, I can. In this instance, the AGS as a separate agency, the CEO can make that decision himself. I will defer to the chair. If there is a clerk's ruling that would permit it otherwise on your calling—I do not think there is but I am happy to be corrected.
Senator BRANDIS: You are certainly not reassuring us that there is not a cover-up going on here to protect the Attorney-General from the manner in which she has improperly intruded into this litigation, Minister?
Senator Ludwig: We can all use that type of language, Senator Brandis, but I am trying to be—
Senator BRANDIS: Just note the answer to the questions is in the room and you are objecting to him—
Senator Ludwig: I am not objecting. I did not say I was objecting. You are reading that into the transcript. That is not true, which is not unlike you in this instance, to read the statements in. In this instance I have said it is a matter for Mr Govey to determine whether or not he wants to field the questions in relation to AGS, subject to the clerk.
CHAIR: Minister, let me just make some comments as chair. There is an expectation that in estimates we ask, as a committee, for explanation from ministers in the Senate or from officers, relating to the proposed expenditure. There is a further expectation that those officers would be at a senior level rather than junior officers. There is an expectation that questions that are asked will be answered. I think there is also an expectation that all of the questions should be channelled through Mr Govey, and any assistance he needs he would get from his relevant officers. In relation to individual witnesses, I am advised that the committee has the power—as a committee—to request individual witnesses to come to the table, but we have not met and done that or requested that. So I am going to suggest that at this stage the questions go to you, Mr Govey. You would seek the assistance of any officers you have available to assist you in answering.
Mr Govey : Thanks, Madam Chair. I will just make one other comment and that is to stress that this is not intended to be in any way discourteous. It is very much a reflection of the principles that were laid down by Attorney-General Williams in that time—
Senator BRANDIS: It is not related to anything you read from Attorney-General Williams and, Mr Govey—
CHAIR: Senator Brandis, let's let Mr Govey finish his sentences. Please go on, Mr Govey.
Mr Govey : I stress again what I said before: the reason for this is it is not a call that we should make; it is a call that the client agency—in this case the Attorney-General's Department—should make. If the Attorney-General's Department thought it was preferable for Mr O'Donovan to answer questions, then I would have no problem with that; it would not breach the principle, which has now been in play ever since AGS was set up, that our lawyers would not come along at our instigation and be subject to questioning.
Senator BRANDIS: Mr Govey, all I want is answers to my questions. If I thought you knew the answers to the questions I proposed to ask, we would not be having this discussion. But, given the very limited nature of the role that you took as you have described it, it seems to me only sensible that the man who ran the case—Mr O'Donovan—is more likely to be in a position to answer those questions than you are. That is the only reason I am asking him to come to the table.
Mr Wilkins : Senator, can I just make a suggestion—
CHAIR: Can I just suggest, Mr Wilkins, that we go on with the answering of the questions, and, if Mr Govey cannot answer them, then he can refer them to whichever officer he has available to assist him in answering those questions.
Senator BRANDIS: Mr Wilkins, what were you going to say?
Mr Wilkins : That is exactly what I was going to suggest.
CHAIR: I have already suggested that as chair.
Mr Wilkins : As you know in the past, I have tried to adopt that attitude in terms of having officers available. I have always taken the view that the questions are addressed to me as the principal officer of the Attorney-General's Department, and I can understand why Mr Govey is taking that attitude as well. Why don't we try that and see.
CHAIR: Let's just get on with asking some questions.
Senator BRANDIS: Is Sarah Wright here in the room?
Mr Govey : No.
Senator BRANDIS: Is Catherine Mann here in the room?
Mr Govey : No.
Senator BRANDIS: My next question is this: I want to know whether Damien O'Donovan, as the solicitor with the principal conduct of the litigation on behalf of the Commonwealth, was at all times satisfied that the obligations imposed by Legal Services Directions were complied with?
Mr Govey : I do not regard that as an appropriate question to ask one of my lawyers.
Senator BRANDIS: I regard it as appropriate. Why not? One of the issues here—which you identified as an issue, because you addressed it in your opening statement—is the question of whether or not the obligations in the Commonwealth Legal Services Directionswere complied with. You made no objection to answering my question directed specifically to you. I now want to know whether the person who ran the case, who knows more about this than you do, is satisfied.
Mr Govey : I made that statement on behalf of AGS, having consulted the Attorney-General's Department that it was appropriate for me to make that assessment. If I were to have passed judgement otherwise, I would have been passing judgement about the Commonwealth's conduct of the case in a way that was inappropriate for AGS as the solicitor. Those calls are for the Attorney-General's Department.
Senator BRANDIS: So you object to me asking the solicitor with the conduct of the litigation whether he was satisfied whether the Commonwealth Legal Services Directions had been complied with in all respects?
Mr Govey : Mr Wilkins has advised that he has no objection to Mr O'Donovan advising me.
Senator BRANDIS: If Mr O'Donovan could come forward, because there are a lot of other questions that are probably more efficiently responded to by him.
Mr Govey : At Mr Wilkins' suggestion, I asked Mr O'Donovan, who confirmed that the answer from his point of view was also yes.
Senator BRANDIS: This is becoming a little bit of a farce, don't you think, Mr Govey?
Mr Govey : No. I think the principle that is involved here is a very important one, going back, as I have said before, to former Attorney-General Williams.
Senator BRANDIS: Mr Williams was the Attorney-General some time ago; I am asking about this case. I would like to know, please, from whom did you take your instructions? From whom did the Australian Government Solicitor take its instructions?
Mr Govey : From the Attorney-General's Department.
Senator BRANDIS: Did you by any chance happen to see the Attorney-General's interview on the 7.30 program last night?
Mr Govey : I did.
Senator BRANDIS: I am reading from the transcript issued by the Attorney-General's office of that interview. In response to a question from Leigh Sales about some of the evidence in the case, the Attorney-General said:
I was briefed on some of that material in the following period, as you would expect me to be, as someone who was instructing in the case.
That is the way the Attorney-General described her role: 'someone who was instructing in the case'. Did you take instructions directly from the Attorney-General?
Mr Govey : I think those questions are more appropriately asked of the department.
Senator BRANDIS: Was the Attorney-General telling the truth when she described herself as 'someone who was instructing in the case'?
Mr Wilkins : Yes.
Senator BRANDIS: Thank you. What was the process, if there was a uniform process, by which instructions were taken? In other words, would officers of the Australian Government Solicitor meet with officers of your department or the Attorney-General or both? I just want to know—I am not going to ask what advice was given—the process by which the instructions on the conduct of the case were given to the Australian Government Solicitor.
Mr Wilkins : You want me to answer that?
Senator BRANDIS: I am happy for Mr Govey to answer it. I am happy for you to answer it. There are two sides to this coin. There is the client and there are the lawyers. I want to know how the instructions were given. An answer from either side of the coin is fine by me.
Mr Wilkins : I gather there were a variety of ways in which instructions were given, depending on the importance of the matter at stake and how strategic and significant that was in tactical terms. On occasions there were meetings involving the AGS and the AGD and the Attorney-General; on occasions there were meetings between the AGD and the AGS; and on some occasions—
Senator BRANDIS: Just pausing there. At the meetings that were purely between the AGS and the AGD, was there an officer from the Attorney-General's staff, from her personal staff, present?
Mr Wilkins : Possibly on occasions. I do not think there was any—
Senator BRANDIS: No always?
Mr Wilkins : No.
Senator BRANDIS: Okay. Go on.
Mr Wilkins : Basically, in broad terms, that was the type of way in which instructions were given.
Senator BRANDIS: As one would expect. This is not rocket science. This is not a 'gotcha' question or anything. I am just trying to slowly build a picture of how this case was run.
Mr Wilkins : It is not a 'gotcha' answer either.
Senator BRANDIS: Indeed. So there were occasions when it was just the Attorney-General's Department officers and the AGS; there were occasions when it was the Attorney-General's Department officers in the presence of somebody from the Attorney-General's office and the AGS; and there were occasions when the Attorney-General herself was present?
Mr Wilkins : Yes.
Senator BRANDIS: So you do not cavil with the Attorney-General's characterisation of herself as 'someone who was instructing in the case'?
Mr Wilkins : No.
Senator BRANDIS: It was ultimately her call. Nominally, the client was the Commonwealth of Australia as a body politic but, in a functional sense, the client, the person ultimately making the calls, was the Attorney-General.
Mr Wilkins : As the first law officer, that is what she was doing.
Senator BRANDIS: Thank you. Between the commencement by the filing of the initiating application on 20 April and the Commonwealth's withdrawal on 4 October on how many occasions did the Attorney-General participate in these conferences?
Mr Wilkins : I might ask either Mr Fredericks or Mr Minogue to answer that question.
Senator BRANDIS: I do not mind who answers, as long as I get the answers.
Mr Fredericks : There were four occasions on which either a conference or a teleconference was held at between officers of AGS, officers of AGD and counsel. The dates of those were a teleconference on 9 June, a conference on 13 June, a conference on 14 August and a teleconference on 27 September.
Senator BRANDIS: What was that last date?
Mr Fredericks : A teleconference on 27 September. They were the four conferences or teleconferences with AGS, AGD, counsel and the Attorney.
Senator BRANDIS: Counsel, Mr Burnside, is a Melbourne resident, as I understand it. In relation to the two teleconferences, I assume, as a matter of courtesy, those conferences would have been held in the Attorney-General's office and that officers of the Attorney-General's Department and officers of the Australia Government Solicitor would have attended the Attorney-General's office, and counsel who were not Canberra based would have been included in the conference by telephone—is that right?
Mr Fredericks : In terms of the teleconferences, essentially, personal attendance or attendance on the phone really depended on the convenience of counsel, the AGD officer or the AGS officer.
Senator BRANDIS: Okay. I suppose it does not matter very much. Were the conferences, as opposed to the two teleconferences, conferences where everybody was physically present in the room and did they take place in the Attorney-General's office?
Mr Fredericks : They did.
Senator BRANDIS: At the teleconferences on 9 June and 27 September, were officers of the Attorney-General's Department in attendance at the Attorney-General's office?
Mr Fredericks : I am just trying to recall: the on 27th, I was in attendance and I was in Canberra on the phone; the teleconference on 9 June, I was in attendance, as was another one of my officers, and, honestly, I cannot recall, but I think I was physically in attendance with the A-G.
Senator BRANDIS: In her office?
Mr Fredericks : I think so, but I just cannot accurately recall that.
Senator BRANDIS: That is fine, if that is the best you can do.
Mr Fredericks : That is the best I can do.
Senator BRANDIS: What about the Australian Government Solicitor? Were they in the Attorney-General's office at that conference on 9 June?
Mr Fredericks : I cannot recall that.
Senator BRANDIS: Do you remember, Mr Govey?
Mr Govey : I do not have the answer to that.
Senator BRANDIS: You might ask Mr O'Donovan.
Mr Govey : We are not in a position to provide that information.
Senator BRANDIS: Why not? Don't you know?
Mr Govey : No, we do not know. We will take it on notice if that would help.
Senator BRANDIS: Please do take that on notice. Rather than delay, I would like to move on. You have said that there were those four occasions when there were officers of AGS, Attorney-General's, counsel and the Attorney-General. Were the other occasions, Mr Fredericks, or anyone else who knows the answer to this question, not involving counsel in which there were conferences involving AGS, the Attorney-General's Department and the Attorney-General?
Mr Wilkins : We do not think so.
Senator BRANDIS: So counsel were involved in every conference the Attorney-General was involved in—is that right?
Mr Fredericks : I believe so.
Senator BRANDIS: Thank you. Who made the decision to brief Mr Julian Burnside?
Mr Wilkins : It was ultimately a decision jointly made. A range of names were put up. He was not the original person briefed by the Commonwealth. The original person briefed by the Commonwealth found that they were jammed, so to speak. There was a range of other names put up to the department and, ultimately, to the Attorney-General which included Mr Burnside.
Senator BRANDIS: And the Attorney-General chose Mr Burnside.
Mr Govey : I may be able to help you on this because there was a question on notice taken from the last estimates. The answer provided by AGS, after consultation with the Attorney-General's Department, was that a shortlist of appropriate counsel was provided to the Attorney-General's Department by AGS. After the first barrister engaged to provide advice on the matter was not available to appear at the first directions hearing, AGS was instructed to approach the remaining counsel to check availability and engage one of them as soon as possible. Two, when approached, were unavailable or unable to confirm availability and two were available, including Mr Burnside. Mr Burnside was the first of the available counsel approached and he was willing to accept the brief. The answer provided some more information about counsel fees at that point, but that is the relevant part in terms of the selection of Mr Burnside.
Senator BRANDIS: As you know, Mr Govey, under appendix D to the Legal Services Directions, point 5 states:
Senior counsel are not to be paid a daily rate above $3 500 (inclusive of GST) without the approval of the Attorney-General.
And item 9 states:
Proposals to pay senior counsel in excess of $5,000 per day (inclusive of GST) will be referred by OLSC to the Attorney-General for decision.
Was Mr Burnside's fee in excess of $3,500 per day.
Mr Govey : Apart from reiterating perhaps what I did not read out from that question, I would need to refer it to the Attorney-General's Department, but I remind the committee that the rest of that response that I did not read out referred to the fact that it is a long-standing policy of successive governments generally not to disclose daily or hourly rates of counsel. This information is regarded as commercial in confidence and disclosure could jeopardise the Commonwealth's ability to engage counsel at the best possible rate. The response then went on to disclose—
Senator BRANDIS: I do not think that consideration applies to Mr Burnside. Mr Burnside is a very well-known barrister. This is one particular piece of litigation. I think we are entitled to know whether the Legal Services Directions were observed in this case. By the way, I am not asking for his fee; I am asking whether the thresholds specified by the Legal Services Directions requiring the Attorney-General's approval were exceeded—that is all. Was his fee in excess of $3,500 per day?
Mr Wilkins : It appears that we do not know. Can we take that on notice?
Senator BRANDIS: I am sure the solicitors who paid him know. What about Mr Damien O'Donovan? He must know if he was running the case. Here he comes with the answer.
Mr Govey : Our recollection is that there was no special approval which is why probably nobody can remember anything specific happening. He had an existing Commonwealth rate and he was paid that rate, is the understanding.
Senator BRANDIS: I cannot let you get away with that, Mr Govey, because as you know under the Legal Services Directions if there has been a pre-existing approval a fresh approval is not required. That does not tell us that he was not being paid more than $3,500 or indeed $5,000 a day.
Mr Wilkins : That is correct, but it is because there was not a process, as best we can recollect, gone through that people cannot recollect.
Senator BRANDIS: Does Mr Damien O'Donovan who was running this litigation not know the rate at which his senior counsel was being paid? Is it that you are telling me?
Mr Wilkins : I think the answer appears to be that he was paid above the $3,000 rate. People do not know exactly what that was. As we understand it, there was a pre-existing approval for that rate for Mr Burnside, but we will need to take that on notice because I do not have that information. I need to get it from the OLSC.
Senator BRANDIS: Mr Govey, are you telling me that Mr Damien O'Donovan does not know how much he was paying Mr Burnside?
Mr Govey : On a per day basis, that is correct.
Senator BRANDIS: That is not very impressive, Mr Damien O'Donovan.
Senator FIERRAVANTI-WELLS: In relation to engagement of counsel, where it is above $5,000 it has to be in very exceptional and rare circumstances which is why Senator Brandis is pressing this. If it is above $5,000, what were the exceptional and rare circumstances that required Mr Burnside to be paid more than $5,000?
Senator BRANDIS: Seventeen solicitors and two counsel for a $50,000 case, Senator Fierravanti-Wells.
Mr Govey : I was saying that this was not regarded as an exceptional case. Mr Burnside was paid his normal Commonwealth rate for this matter.
Senator FIERRAVANTI-WELLS: So you are saying it was less than $5,000?
Senator BRANDIS: No, he is not saying that.
Senator FIERRAVANTI-WELLS: On your website it says about legal services that 'the Attorney-General has made it clear that rates in excess of $5,000 per day except in very exceptional and rare circumstances'. If he is paid more than $5,000, what were the very exceptional and rare circumstances that warranted paying more than $5,000 in this case?
Mr Wilkins : With due respect, we do not know yet whether he was paid in excess of $5,000.
Senator BRANDIS: Perhaps you could make an inquiry and take that on notice.
Mr Wilkins : We are taking that on notice.
Senator FIERRAVANTI-WELLS: If it was over $5,000, please tell us what was very exceptional and rare about these circumstances that warranted his being paid above $5,000. My recollection of when I was in the AGS was that these things were gone through very scrupulously in relation to how much we were paying counsel, and as an instructing solicitor I knew very well how much I was paying my senior counsel. I am very surprised Mr O'Donovan does not know.
Senator LUDLAM: I am sure you would not want to breach the confidences of when you were employed by AGS.
Senator BRANDIS: I do not think Senator Fierravanti-Wells has done anything other than say that when she was working for the Australian Government Solicitor, like any competent solicitor she knew what she was paying her barrister, as any competent solicitor would. Enough of that, let us get into the litigations. On 18 May, as perhaps you know, Mr Govey, and I hope Mr Damien O'Donovan knows, the court ordered Mr Ashby to file further and better particulars of his allegations set out in his points of claim and in particular further and better particulars of text messages referred to in his points of claim. That is deposed to by Catherine Heather Mann in her affidavit filed by the Australian Government Solicitor at paragraph 28. Are you familiar with that, Mr Govey?
Mr Wilkins : I have the information for you. Mr Burnside is paid $4,800—that is an existing rate that has been determined by the OLSC—and he was paid at that rate.
Senator BRANDIS: Thank you. Perhaps this is an appropriate point for you to address Senator Fierravanti-Wells's question, why in this particular case a decision was taken to choose a senior counsel who commanded a fee of some $1,300 above the maximum usual rate for senior counsel.
Mr Wilkins : No, it is where it is in excess of $5,000 that one needs to make out a special case.
Senator BRANDIS: 'Senior counsel not to be paid a daily rate above $3,500 without the approval of the Attorney-General' is point 5.
Mr Wilkins : That is right, but the question about the exceptional circumstances only arises when it is above the $5,000 mark. As you would appreciate, a lot of senior counsel are paid in the range of between $3,000 and $5,000. It is only when it goes excessively above that rate that we would expect some sort of justification. In this case there was not any need. That is what the rules say.
Senator BRANDIS: I do not want to delay any further on that point; thank you, Mr Wilkins. As we know from Ms Mann's affidavit, the court ordered on 18 May the applicant to file and serve further particulars of his points of claim on or before 28 May, in particular the particulars of text messages referred to in those points of claim. Are you aware of that, Mr Govey?
Mr Govey : In a general sense.
Senator BRANDIS: I am reading from your own solicitor's affidavit and there are plenty of other ways to establish these dates, but Ms Mann helpfully sets out a chronology of steps, so I am using her affidavit as a point of reference. It is also the case that on 28 May the Australian Government Solicitor was served with an affidavit of Rodney McKemmish attaching an electronic copy of all of the text messages on the telephone of Mr Ashby, the applicant, as deposed to by Ms Mann in paragraph 29 of her affidavit.
Mr Govey : That is correct. That is on the public record.
Senator BRANDIS: That was in fact confirmed by the Attorney-General as recently as her 7:30 interview last night. If I can take you to paragraph 30 of Ms Mann's affidavit, she deposes—and I am just reading from it:
Beginning on 5 June 2012, I reviewed the contents of Exhibit RDM-3. Exhibit RDM-3 is a CDROM which contains an Excel spreadsheet named 'James Ashby iPhone.xisx'.
If I paraphrase Ms Mann's deposition, she says that she analysed all of the Ashby text messages—that is, the text messages—
Mr Wilkins : Is that what you said, that she analysed all 16,000 text messages?
Senator BRANDIS: No, I said beginning on 5 June 2012 she reviewed the contents of the exhibit which is the CD-ROM which contains an Excel spreadsheet named James Ashby iPhone.xisx.
Based on the description in the affidavit of Mr McKemmish, I believe that the spreadsheet displays the contents of text and other messages sent and received by the Applicant.
That is reading directly from Ms Mann's affidavit. Then on 13 June the Australian Government Solicitor filed two applications prepared by another solicitor, Sarah Wright. One is the summary judgement application, the application under rule 26 of the Federal Court Rules, and the other is an application on behalf of the Commonwealth to be relieved of its implied undertaking not to use or disclose the contents of the exhibits to Mr McKemmish's affidavit—that is, the text messages.
When Ms Roxon was asked about her knowledge of those matters last night, this is what she said, again reading from the transcript prepared by her office:
That is, the text messages—
were provided to all parties in the litigation in late May.
I think we have established that is common ground.
They were provided with very strict undertakings which apply for this material: they weren't originally put into evidence; that they would only be used for the purposes of the court case. I was briefed on some of that material in the following period, as you would expect me to be, as someone who was instructing in the case.
And then Leigh Sales says:
When you say you were advised about it in the following period, when exactly were you advised as to the content?
Nicola Roxon: Oh, look, I can't tell you the exact date. They were provided—and I don't think anything turns on that date because they were provided to the parties from 28 May. We make no secret about that. That was provided to the Government solicitors at that time. I was briefed on many matters in this court proceeding. Thousands and thousands and thousands of pages of text messages were provided with firm undertakings made to the court.
Leigh Sales: What I'd like to get to the bottom of is: had you read the text messages or were you aware of their content before the Commonwealth started its abuse-of-process action…
Nicola Roxon: Yes. We were certainly aware of the range of material that was provided on those undertakings.
You have told us that the Attorney-General was part of the conference on 9 June, which is four days before the abuse-of-process and the relief-of-the-implied-undertaking applications were filed and she was present again at the conference on 13 June, which is the date on which those two applications were filed. So, may we take it that when Ms Roxon talks about having been briefed on the text messages prior to the applications being filed, that must have happened at the conference on 9 June? Ms Roxon has said she was briefed about it. This was the only conference before the filing of the applications that you have told me she participated in, so may we take it that that was part of the business of the 9 June conference?
Mr Wilkins : We could take it on notice. It is probably a question that might be better addressed to the Attorney-General but let us assume that what you are saying is correct, but I do not.
Senator BRANDIS: Mr Wilkins, the Attorney-General quite freely told Leigh Sales last night—
Mr Wilkins : I know.
Senator BRANDIS: that she was briefed about this before the strike-out application was filed. It was filed on 13 June. The material was served on 28 May. Between 28 May and 13 June, you have told us—or Mr Fredericks has told us—there was one conference with the Attorney-General, on 9 June. So it would seem, assuming that the evidence Mr Fredericks has given to the committee is true, which I am sure it is, and assuming what Ms Roxon told Leigh Sales last night is true, then that date was 9 June—that particular conference.
Mr Wilkins : I do not think we should assume that, actually.
Senator BRANDIS: Why? Was there another conference with the Attorney-General before 13 June that we have not heard about?
Mr Wilkins : Just explain to me why you think 13 June is such an important date.
Senator BRANDIS: That was the filing date.
Mr Wilkins : Yes, that is right, but—
Senator BRANDIS: And Ms Roxon told the viewers of 7.30 that she was made aware of these text messages before those applications were filed.
Mr Fredericks : At this point in time, I think it is important to note for the committee's benefit that the number of SMS text messages that were on that CD-ROM was 15,400. Speaking on my own behalf, as at 9 June and as at 13 June, I had no knowledge of the complete 15,400 text messages. It is inconceivable that that could be the case. We knew that we had a record of the text messages, but, given the volume, it was impossible to have knowledge of all of the text messages.
Senator BRANDIS: Mr Fredericks, that is an extraordinary thing to say. I will tell you why it is an extraordinary thing to say. You are telling me that the Commonwealth commenced the summary judgement application and filed an application to be relieved of its implied undertaking in relation to material supplied by an applicant as particulars of its claim and it did not even know what all that material was. That is an abuse of process.
Mr Fredericks : No, Senator, that is not what I am saying at all. I am saying that, in terms of having knowledge of the 15,400 SMS text messages, that was not possible.
Senator BRANDIS: Why not?
Mr Fredericks : Because it was simply an impossible task by AGS in the short time period that there was.
Senator BRANDIS: You are missing my point. I understand perfectly—
Mr Fredericks : I was going to come to address your point. Certainly, in view of counsel and in view of AGS, there was sufficient knowledge of text messages to support the abuse of process application that was brought.
Senator BRANDIS: Come on! These are Ashby's points of claim. His central plea, his central of averment, in paragraph 4 of this pleading, is:
Between January 2012 and March 2012, the Second Respondent made unwelcome sexual advances, unwelcome sexual comments and unwelcome suggestions of a sexual nature to the Applicant.
He goes on to particularise that his case is based largely on text messages.
Mr Wilkins : Can—
Senator BRANDIS: No, let me finish. At the first directions hearing, you quite properly and appropriately asked for particulars of those text messages. On 28 May, it is agreed that Ashby provides in electronic form the particulars of the text messages, and you are now telling us that the Commonwealth of Australia brought an application to strike out Ashby's case, because it was an abuse of process and was vexatious, and brought a parallel application to be relieved of the implied undertaking without knowing what all his particulars were, without having analysed all of the particulars. It would not be possible and it would not be proper for the Commonwealth to form a view that the case should be struck out as an abuse of process.
Mr Wilkins : Senator, can I say something now?
Senator BRANDIS: Yes.
Mr Wilkins : First of all, as you correctly say, there are certain dates stated in the averment by Mr Ashby. They did not include all the 16,000 text messages in that. Secondly, I think Mr Fredericks was saying he could not possibly do it. We relied on the advice of AGS and counsel, who presumably had looked at most of the material.
Senator BRANDIS: That is not good enough, Mr Wilkins.
Mr Wilkins : With all due respect, I think it is, Senator. You were saying, basically, that the Commonwealth was in an abuse of process. You were making averments about neglect by senior counsel.
Senator BRANDIS: 'Averment' is a term used in a pleading, so I am making assertions.
Mr Wilkins : What I am saying is that people did precisely what you would expect them to do under the circumstances, defending the taxpayers of Australia.
Senator BRANDIS: That is not what Mr Fredericks told—
Mr Wilkins : You are placing that interpretation on what he said. People were very careful to take stock of what the material was, but it does not mean that someone in Mr Fredericks's position or the Attorney-General's position is going to read 16,000 text messages.
Senator BRANDIS: Let's ask Mr Govey, the man at the table who seems to know the least about this case, which is why he has been put forward by the government to answer the questions. He perhaps could ask—
Senator Ludwig: Do you have a question, Senator Brandis, or do you just like to hear your own voice?
Senator BRANDIS: Mr Damien O'Donovan, who is sitting right behind him, who conducted the case. At the time the decision was made to move to strike out Ashby's case as an abuse of process and as vexation, and the other application was made to seek relief from the implied undertaking of confidentiality in relation to that material, had the Australian Government Solicitor analysed all of the text messages supplied on 28 May?
Mr Govey : That is not a question that I would want to answer in the absence of instructions from the department.
Mr Wilkins : Apparently they would like to take notice whether they looked at every single one, but the vast bulk.
Senator BRANDIS: Let the record show that you responded to that question in those terms, having had a brief conversation with Mr Damien O'Donovan, who sits behind you, concealed from scrutiny. The fact is, Mr Wilkins—Mr Govey will understand this because Mr Govey is an experienced solicitor—that, when a party is asked to provide particulars, its obligation is to set out with particularity the basis upon which it says it has a valid claim or a valid defence. Would you agree with that general proposition about the rules of pleading, Mr Govey?
Mr Govey : I would.
Senator BRANDIS: How can an adverse party in litigation make a decision that the other side does not have a valid claim without having considered all of the particulars it puts forward in support of its claim?
Mr Wilkins : I have just said—
Senator BRANDIS: That is a question to Mr Govey. Mr Govey, how can that be?
Mr Govey : The only response I can give you is that I am confident that sufficient work was done by my colleagues to justify the position that was taken in the proceedings.
Senator BRANDIS: Mr Damien O'Donovan just had a whispered conversation with Mr Wilkins and Mr Wilkins then told us the 'vast bulk'—the vast bulk is not good enough. If it is 80 per cent, how do you know that the 20 per cent that had not been analysed might not have made the difference between a valid claim and a specious claim? You cannot know until you have analysed all of the particulars. An undergraduate law student could work that out.
Mr Wilkins : What I said, before I get completely verballed on this, was that I would have to take it on notice and that his recollection was of the vast bulk. He did not look at every single one maybe, but we have to take it on notice.
Senator BRANDIS: Take it on notice by all means, but none of this is satisfactory. You cannot decide that a—
Mr Wilkins : They may have looked at every one. I need to take it on notice. What I was trying to say to you was that at least we can be sure they looked at the vast bulk of them, and they looked at the material that extends in that period of time that Mr Ashby in his pleadings said was a critical period of time. Those matters were looked at.
Senator BRANDIS: It is for a party to decide for themselves the particulars they give, to put forward their best case, as it were. I can assure you, Mr Wilkins, having practised this for 15 years of my own life, it would not be possible to form a view that an adverse party's case is so unmeritorious, so hopeless, that you could bring a strike-out application without having considered all of the particulars it puts forward to support it. Here comes Mr Damien O'Donovan to the table with a piece of paper. This might assist us. Mr Govey, do you want to tell us something?
Mr Govey : On a related point, Senator—
Senator BRANDIS: No, in response to my question.
Mr Govey : Can I just make the point about the Harman obligation because I think you might be labouring under the impression that the Harman obligation was relieved in some fashion in relation to this particular matter. That is not the case.
Senator BRANDIS: I am not labouring under that false impression at all.
Senator FIERRAVANTI-WELLS: You could put this to rest by producing to us copies of those timesheets, which would indicate the time that was spent, the level of officer undertaking the task. That should put it to bed. I would have thought that if your officers were doing their job and doing their job properly your timesheets would demonstrate precisely the amount of work that went in at this time, which would answer in another way Senator Brandis's question about whether all that material was considered. You did, after all, tell us you had 17 lawyers on this case. One assumed they plus the barristers all got together and read the necessary text messages. I think those document should be produced.
Senator Ludwig: You are entitled to ask a question and you are entitled to—
Senator FIERRAVANTI-WELLS: Perhaps Mr Govey will tell us whether he is prepared to release them.
CHAIR: Senator Fierravanti-Wells, what documents are you specifically seeking?
Senator Ludwig: It seems to be a broad question. I would not mind if it was specific.
CHAIR: That is why I am asking what specific documents are you referring to.
Senator FIERRAVANTI-WELLS: Mr Govey knows precisely what I am referring to, and that is the timesheets that all those 17 lawyers would have been keeping in relation to reading all that material. If I was reading that material I would be billing that time to the Attorney-General's Department, which is what all your lawyers probably would be doing. So if they did spend their time reading it they probably charged for it.
Mr Govey : I imagine that would be correct—
Senator FIERRAVANTI-WELLS: Thank you, Mr Govey.
Mr Govey : and we have already agreed to take it on notice. I want to make one other point because again I think there is a misapprehension that we had 17 lawyers working on this case. I have tried to indicate that that was not the case, that most of those—
Senator BRANDIS: Not all at the same time, perhaps.
Mr Govey : Most of those lawyers were not working on the core part of the case, they were involved in peripheral elements. So in fact I am told that there were only three lawyers who are involved in examining the material.
Senator BRANDIS: Whether there were three—
Mr Govey : It is a big difference between three and 17.
Senator BRANDIS: There is. Well, you are the one who told us 17. That is not the main point of this discussion.
Mr Wilkins : Senator—
Senator BRANDIS: Be silent for a moment, please, Mr Wilkins. This is to you, Mr Govey, as the solicitor. We are talking lawyer to lawyer here. I want to give you the opportunity because maybe I misunderstood Mr Fredericks, maybe Mr Fredericks misspoke, maybe Mr Wilkins misspoke. I want to know whether it is the case that at the time the decision was made apparently on 9 June to bring the order 26 application to have the action summarily dismissed and to file another application to relieve the Commonwealth of the implied undertaking, all of the particulars had been considered analysed by the relevant lawyers. Now, we know from Ms Mann's affidavit that she commenced the analysis of the material on 5 June. We know that the conference with the Attorney-General was on 9 June. We know from the Attorney-General's statement that she was briefed on this matter before the decision to bring the strike-out application was made and that was filed on 13 June, presumably prepared on 12 June. I just want to know whether it is the case that at the time that decision was made to bring the most radical application that it is possible to bring in civil proceedings, to strike out a claim without the benefit of a trial, all of the particulars proffered in Mr McKemmish's affidavit had been considered.
Mr Govey : The response to that question is that this application related to the abuse of process claim. As I indicated before, and this has been confirmed by Mr O'Donovan, we were satisfied that we had done everything necessary to discharge our professional obligations before advising on the bringing of that application.
Senator BRANDIS: I am sure you were, Mr Govey, but it was not good enough if you had not considered all of the particulars, because without having considered all of the particulars you could not rationally conclude that there was no arguable case being filed by Mr Ashby, could you? You are an experienced solicitor, Mr Govey. Without considering all of Ashby's particulars, how could you possibly conclude that he had no arguable case?
Mr Govey : I have made my response to that before.
Mr Wilkins : It is also worth noting it was not the Commonwealth's application primarily. The application was made by Mr Slipper.
Senator BRANDIS: Sarah Wright, a lawyer employed by the Australian Government Solicitor—
Mr Wilkins : Can I finish, Senator?
Senator BRANDIS: filed under the—
Mr Wilkins : Can I finish?
CHAIR: Senator Brandis, just try to let people finish their train of thought.
Mr Wilkins : The original application was made by Mr Slipper, not by the Commonwealth.
Senator BRANDIS: I know that.
Mr Wilkins : The Commonwealth was making a tactical decision as about whether or not also to intervene in that matter and to support that application. The primary application was not made by the Commonwealth.
Senator BRANDIS: There is no such thing as a primary and a secondary application. There might be two applications—
Mr Wilkins : In this case, there were.
Senator BRANDIS: of similar effect in parallel.
Mr Wilkins : In this case there were. The second thing is that this is an interlocutory matter. It was not actually looking at the particulars in relation to the primary application for the purpose of deciding the actual matter that was originally filed. This was an interlocutory matter, Senator Brandis.
Senator BRANDIS: I know what an interlocutory matter is, Mr Wilkins.
Mr Wilkins : So the questions at stake were different from the questions that would have been at stake if the primary case was being heard.
Senator BRANDIS: Mr Wilkins, that is not right.
Mr Wilkins : With all due respect, I think it is.
Senator BRANDIS: With all due respect, Mr Wilkins, a strike-out application can only be an interlocutory matter because it is brought at the interlocutory stage of proceedings. I think that gets you absolutely nowhere.
Mr Wilkins : Are you saying it is not saying it is the primary case?
Senator BRANDIS: The fact is, to bring an application summarily to terminate a proceeding without having considered all of the particulars put forward by the applicant to support their proceeding is a reckless thing to do for any lawyer.
Mr Wilkins : We need to be convinced, to bring a case of this type, that it was vexatious or an abuse of process. The opinion that needed to be formed was that that was well founded and that was the advice we received from the AGS and from counsel.
Senator BRANDIS: You had received advice from the AGS and counsel that the strike-out application—the order 26 proceedings—were well founded, did you?
Mr Wilkins : Yes.
Senator BRANDIS: When was that advice received, please?
Mr Wilkins : Before the application was made.
Senator BRANDIS: Of course, indeed. It was filed on 13 June. Was that advice available to the Attorney-General on 9 June during the conference that she had with counsel?
Mr Wilkins : Yes, senator.
Senator BRANDIS: And that advice was based on, in part at least, those of the text messages that had been analysed?
Mr Wilkins : Yes.
Senator BRANDIS: That is what this was all about.
Mr Wilkins : No, no. It was not what it was all about. It was about abuse of process or vexatious litigation.
Senator BRANDIS: And all the evidence relied upon in Ms Mann's affidavit, if you are familiar with it, quotes the text messages. That is the only evidentiary basis put forward in the principal affidavit filed in support of the application.
Mr Wilkins : Not only the text messages, Senator. If you read the statement of claim—
Senator BRANDIS: The points of claim are not the evidence, Mr Wilkins. The points of claim are the legal propositions that if you follow—
Mr Wilkins : And if you read what she says, it is not only about text messages.
Senator BRANDIS: Well, Mr Wilkins, with all due respect, if I may take you to paragraphs 34 through to the end of Ms Mann's affidavit, in fact it is all about text messages. So this application to terminate Mr Ashby's proceedings—strangle them at birth, as it were—as I said before, the most radical application that can be made in civil proceedings—was done on an incomplete view of the evidence and apparently an incomplete understanding of the evidence as well.
CHAIR: Senator Brandis, Senator Abetz wants to ask some questions.
Senator BRANDIS: I see Mr Wilkins is in close conference with Mr Damien O'Donovan. When this question is answered I am happy for Senator Abetz to ask his question and then I will resume after dinner.
Mr Wilkins : I think the affidavit you have been speaking about actually relates to the primary case, not to the interlocutory.
Senator BRANDIS: That is not right, no. It was filed with the strike-out application and the relief from the implied undertaking application.
Mr Wilkins : Was it? I would just like to check that.
Senator BRANDIS: You check it. We will resume afterwards.
Mr Wilkins : Do you want to take that up again afterwards?
Senator BRANDIS: I am happy to.
Senator ABETZ: With regard to the Barclay case—the workplace relations matter that went to the High Court—did the Australian Government Solicitor provide any advice on that matter? If the answer is no I will not be back after dinner. If the answer is yes I might have a few questions to ask about it.
Mr Govey : AGS was involved in that case, but that is about as much information as I am going to be able to give you, having regard to our solicitor-client relationship.
Senator ABETZ: So you will be taking any other questions that I might ask you on notice, is that what you are telling me?
Mr Govey : Or referring them to the relevant agency.
Senator ABETZ: Thank you.
Pr oceedings suspended from 18:31 to 19 : 37
Mr Wilkins : I had undertaken to look into some of the issues we had been talking about prior to the break. It might be useful if I made a statement that covered some of the issues we had been talking about. Before the break, Senator Brandis was talking about the CD-ROM which included the text messages. One of the contentions was that they constituted particulars of Mr Ashby's statement of claim and consequently Senator Brandis said any failure to read the texts constituted a failure to review the particulars of Mr Ashby's claim. But the premise is not right. The CD-ROM containing the texts was not part of the particulars of the statement of claim. The CD-ROM was produced pursuant to the second part of Justice Rares's order, namely the requirement that the applicant serve 'the document referred to on page 14 of the originating application filed on 20 April 2012'. That originating application was abandoned prior to the first directions hearing, and the particulars of the statement of claim were provided on 28 May 2012 and had been read in their entirety prior to the filing of the application alleging an abuse of process—so that was just the first point, that the CD-ROM did not constitute particulars of the statement of claim lodged by Mr Ashby.
The second point is that the affidavit that you were referring to is, as I thought it might be, not the affidavit filed in support of the abuse of process application. It is the affidavit that was filed in support of an application for access to an unedited version of an affidavit sworn by Mr Ashby prior to the commencement of any proceedings, prior to the filing of the abuse of process application.
The other point that has come up is: what was the methodology and how did people determine what things on the CD-ROM they would look at and what not? Prior to the filing of the abuse of process application, I am advised that the following text review had taken place. The entire chain of communication between Mr Ashby and Mr Slipper, and Mr Ashby and Ms Doane, a colleague in Mr Slipper's office—this is the way in which the CD-ROM with all the text messages in it were looked at—all communications in the period between December 2011 and April 2012, all communications between Mr Ashby and the people relevant to the abuse of process application, which included people like Mr Brough, Mr Lewis and Mr McArdle. That may help the Senate understand some of the methodology behind which parts of the text messages on the CD-ROM were looked at. The senator's comments also suggest—and I am just reiterating what Mr Govey said—that the impression that the Commonwealth's abuse of process application contended that Mr Ashby's claim was 'hopeless', well, it did not say that—
Senator BRANDIS: No, but that is the legal test you have to satisfy.
Mr Wilkins : The legal test for abuse of process, you mean, Senator?
Senator BRANDIS: For a strike-out application under order 26 of the Federal Court—
Mr Wilkins : No, this is an abuse of process application.
Senator BRANDIS: Look, Mr Wilkins—
CHAIR: Senator Brandis, just let Mr Wilkins finish—
Senator BRANDIS: This is an application under order 26 of the Federal Court Rules. I am extremely familiar with the principles. I suspect you are not. That is the test.
CHAIR: Senator Brandis, if you just let Mr Wilkins finish what he is saying, then you can have further questions.
Mr Wilkins : The abuse of process application did not contend that it was hopeless. It contended that it was brought for improper motive, and it was the purposes for which the application was made that were in contention. It was said to be vexation or an abuse of process. So the contention was that the proceedings were brought for an improper or collateral purpose. It was never alleged by the Commonwealth that the claim was hopeless, Senator.
Senator BRANDIS: The word 'hopeless' was not used, but that is the test lawyers use. Now Mr Wilkins, since you have made some observations, let me respond to them. First of all, the first statement you made is explicitly contradicted by paragraphs 27 and 28 of Ms Mann's affidavit, which make it explicit that the CD-ROM was provided as particulars of paragraph 14 of the points of claim. Secondly, I have myself checked this during the break. Ms Mann's affidavit was in fact provided in support of the order 26 application. Thirdly, it is all very well to say the entire chain of communications between Mr Ashby and Mr Slipper, and Mr Ashby and Ms Doane were looked at, but without an analysis of the content of each of the text messages, the chain of communication tells us little or nothing. To speak of the chain of communication tells us little or nothing. Mr Govey, I am going to—
Mr Wilkins : I do not quite understand how that is. Just going back to that affidavit, I did make inquiries with the solicitor—
Senator BRANDIS: I made inquiries too.
Mr Wilkins : and it was in fact in support of a completely different motion.
Senator BRANDIS: By the way, even if you are right—which you are not—it does not matter. This was material put on by the Commonwealth and read in support of that application. In any event, rather than have a dispute about what is a somewhat arcane issue, let us go to the substance of this. I am directing myself to you, Mr Govey, and to those who had the conduct of the proceedings. I have looked at all this material, Mr Govey. There is no possibility in the world that the order 26 application could have succeeded, because everything deposed to, all the relevant material—that is, the content of certain text messages deposed to in Ms Mann's affidavit—raise issues of contentious facts.
So leave completely to one side the question of what was omitted from Ms Mann's affidavit—that is, the vast quantity of material demonstrating that Mr Ashby's complaints about sexual harassment by Mr Slipper were well founded—and look only at the material Ms Doane relies upon to support this rather lurid assertion in assertion in effect of some kind of political conspiracy so that the case was an abuse of process. From paragraph 34 of Ms Mann's affidavit to the very end of Ms Mann's affidavit, every one of those propositions depends upon inviting an inference about purpose. And all Mr Ashby would have had to do to meet an order 26 application to strike out the proceedings would be to say, 'That inference is not permissible or is contestable.' Even to say, 'It is contestable because I can explain this for different reasons.' And the moment Mr Ashby contested the inference which the affidavit sought to establish, that alone would have been enough in a summary judgement application to persuade the judge that there had to be a trial of the case. You just cannot, Mr Govey, establish a summary judgement application by inferences drawn from a selective presentation of evidence in affidavit material which are themselves contestable. I looked at this material earlier this week, and I would not have advised a client of mine in a million years that they had any chance of success at all of getting summary judgement on this material. You know, Mr Govey—you must, from your experience as a solicitor—how difficult summary judgement is to get. Any material factual dispute is enough to defeat an application, and this affidavit of Ms Mann's depends entirely upon contestable facts.
Mr Govey : Senator, it is a bit difficult to respond to this, because—
CHAIR: If there is no question there is nothing to respond to. We need to be asking questions at estimates, really.
Mr Govey : The only thing I should say though, is the matter is before the court so it really would be inappropriate to comment other than—
Senator BRANDIS: Not as between the Commonwealth and Mr Ashby, because the Commonwealth's case with Mr Ashby is over.
Mr Wilkins : Senator, it is still before the court, and it was not a summary application, as I keep saying. It was actually an application in abuse of process and vexatious—
Senator BRANDIS: Look, Mr Wilkins, it was an application, however so described, for the summary determination of the proceedings. That is what it was.
Mr Wilkins : It was interlocutory proceedings—
Senator BRANDIS: That is right—
Mr Wilkins : but it was not a summary proceeding in the way you mean it.
Senator BRANDIS: It was an application—as Mr Govey himself said, by the way, in his introductory statement, incorrectly—
Mr Wilkins : And it did require—
Senator BRANDIS: for the summary determination of the case.
CHAIR: Senator Brandis, let Mr Wilkins finish a sentence and then you can respond with your question.
Mr Wilkins : We did have legal advice, and it is based on—
Senator BRANDIS: Are you waiving that legal advice?
Mr Wilkins : No, I am not waiving legal advice; I am just saying we advance the case on the basis of legal advice. It is not—
Senator BRANDIS: But did the legal advice tell you your prospects were good, that they were fair, that they were poor?
Mr Wilkins : They were sound.
Senator BRANDIS: Sound—was that the word used in the legal advice?
Mr Wilkins : Possibly. I did not—
Senator BRANDIS: Possibly.
Mr Wilkins : I have not got the legal advice.
Senator BRANDIS: What is the point of saying that? You say, 'We had legal advice—
Mr Wilkins : We acted on legal advice, Senator, and the advice was that this was a sound thing to do, a reasonable thing to do.
Senator BRANDIS: Mr Wilkins, you seem to have waived the privilege in relation to that legal advice.
Mr Wilkins : No, I have waived—
Senator BRANDIS: By referring to the substance of it—
Mr Wilkins : I have not waived the privilege at all.
Senator BRANDIS: You cannot have it both ways, Mr Wilkins. You cannot say, 'I'm telling you what the legal advice said—
Mr Wilkins : We can say that we—
Senator BRANDIS: but you have to take it on faith from me, Mr Wilkins, who is not by the way a lawyer—are you, Mr Wilkins?
Mr Wilkins : Yes, of course I am.
Senator BRANDIS: Are you a lawyer?
Mr Wilkins : Yes.
Senator BRANDIS: Have you practised recently?
CHAIR: Senator Brandis, let's get some questions going here, because we have got quite a fair bit of the program to go to. I was hoping to move to the next agency by at least a quarter past eight.
Senator BRANDIS: We do, and I do not want to waste time and that is why, Mr Wilkins, that I really would appreciate—
Mr Wilkins : This was an abuse of process.
Senator BRANDIS: if you left these answers to Mr Govey, who was put forward by you as the person who is responsive—
Mr Wilkins : I did?
Senator BRANDIS: to questions about the conduct of the litigation.
Mr Wilkins : No, no. He was not put forward as the person to answer questions in this forum on the conduct of litigation, but the only point I am—
Senator BRANDIS: That is what I am asking about.
Mr Wilkins : trying to make is the fact that the Commonwealth never contended that Mr Ashby's case was hopeless. What we contended was that it was brought from collateral and improper motives, and that is an entirely different type of proposition.
Senator BRANDIS: And you sought on that basis, on that ground, for it to be summarily determined, summarily dismissed or permanently stayed. The proposition I put to Mr Govey, but you have come in to respond is: that when the case depends, as plainly it does, on inferences drawn from a selection of the evidence, which are themselves contestable inferences, there is no way in the world that any court would summarily determine those proceedings.
Mr Wilkins : The court is still considering—
Senator BRANDIS: A judge would say—
Mr Wilkins : The judge is still considering it.
Senator BRANDIS: 'You have to test these propositions at trial.'
Mr Wilkins : The judge is still considering that question.
Senator BRANDIS: Not as between the Commonwealth and Mr Ashby.
Mr Wilkins : But between the exact same issue to which the Commonwealth joined itself is between—
Senator BRANDIS: But you do not have an interest in that anymore, Mr Wilkins.
Mr Wilkins : No, but it is before the court though, Senator, and it is a subjudice matter.
Senator Ludwig: Does that mean just because the Commonwealth is you think you are entitled to then trample all over it?
Senator BRANDIS: No.
Senator Ludwig: I did not think so. Thank you.
Senator BRANDIS: Minister, what I am saying is that there are propositions being advanced by Mr Wilkins which are frankly preposterous.
Mr Wilkins : It is being considered by the judge.
Senator BRANDIS: The summary determination of a case on the basis of contestable inferences drawn from selective facts is something no court will ever do, and I—
Mr Wilkins : It is before the judge at the moment.
Senator Ludwig: My point was that it is currently—
Senator BRANDIS: I dispute—
Senator Ludwig: It is currently before the court, and you are now suggesting a court should find a particular way—
Senator BRANDIS: that a competent lawyer would have advised the Commonwealth—
Senator Ludwig: and I invite you to allow the court to decide. That is all I am doing.
CHAIR: Can I just remind both of you that talking over the top of each other is not assisting anyone listening and it is certainly not assisting Hansard. If we do not have any further questions, Senator Brandis, I am going to move on to the Institute of Criminology.
Senator BRANDIS: No, no. I have got tons of questions.
CHAIR: We will be trying to finish this area by about a quarter past eight. We have got the rest of the evening's program to try and get through.
Senator BRANDIS: But I will try and press on. I do not—
CHAIR: Let's ask questions, because then we will be assured of pressing on.
Senator BRANDIS: With respect, Madam Chairman, I am responding to propositions put to me which seem to me to be preposterous.
CHAIR: If you want to pick it up and debate the issue further, let's do it back in the Senate after estimates is over. Let's go to questions now and concentrate on that.
Senator BRANDIS: There were two applications filed on 13 June. There was the application to summarily determine Mr Ashby's case about which we have been speaking; and there was also the application on behalf of the Commonwealth to be relieved of the implied undertaking not to use the text messages for any purpose other than for the purposes of the litigation. Mr Govey—or Mr Wilkins; this is something you can answer—why was the second application filed? What was the purpose of it? Here comes Mr O'Donovan, again, who is in a position to know.
Mr Wilkins : I am advised that it was made in order to allow the Commonwealth to consider Mr Ashby's employment status.
Senator BRANDIS: In other words to terminate it.
Mr Wilkins : No, not in other words; as I said, to consider the employment status.
Senator BRANDIS: What does 'consider his employment status' mean?
Mr Wilkins : We were not relieved of that undertaking anyway.
Senator BRANDIS: No, you were not relieved! That is not the question I asked you. I am asking you why you brought the application. You have given us half an answer—that is, to consider Mr Ashby's employment status. I put it to you that that is really weasel words for saying you wanted to sack him. I am inviting you to—
Mr Wilkins : I do not know that that is the case.
Senator BRANDIS: What was the reason for the application?
Mr Wilkins : To consider his employment status.
Senator BRANDIS: What does that mean?
Mr Wilkins : It means for the Commonwealth to consider what to do about Mr Ashby's employment status.
Senator BRANDIS: He was employed; what else were you going to do, promote him?
Mr Wilkins : Possibly, I do not know.
Senator BRANDIS: Come on, Mr Wilkins.
Mr Wilkins : Senator, I do not know the answer.
Senator BRANDIS: I think you are trifling with the committee.
Mr Wilkins : I do not know the answer to that question.
Senator BRANDIS: I do. The crowning irony here is that your claim against Ashby was that he was being vexatious. I put it to you that both of the Commonwealth's applications were themselves bordering on the vexatious. The first of them, which had absolutely no prospect of success based as it was on inferences drawn from contestable facts, was designed to put the maximum pressure on Ashby. The second of them, which you have not been able to explain other than with the vague term 'to consider his employment status', was designed to threaten him with dismissal.
Mr Wilkins : No, I do not agree with that proposition at all.
Senator BRANDIS: I put that to you.
Mr Wilkins : I simply do not think it represents—
Senator BRANDIS: You are entitled to dispute it. But it seems to me, given the utterly unmeritorious nature of the first application and the plain intent of the second, it is consistent with no other conclusion.
Mr Wilkins : All I am saying is that there is obviously a lot of politics in this. Insofar as you are asking an official what the train of reasoning and thinking was, that was not it.
Senator BRANDIS: We have heard about the deep involvement of the Attorney-General in this matter. The Attorney-General herself spoke of herself last night as being the person who would be giving the instructions in the case. If there is deep political involvement in this case, the deep political involvement was to use every device at the Commonwealth's disposal, with its almost bottomless resources, and in callous disregard of the model litigant rules to protect the Attorney-General's position.
Mr Wilkins : If you are putting it to me, I do not agree with any of those propositions.
Senator BRANDIS: That is fine. You are entitled to and indeed in your position you have no choice but to. The proceedings were brought after the 9 June meeting with the Attorney-General. You took those instructions on 9 June or were they confirmed in writing afterwards? You know it is not proper practice, I am sure, to bring an application for summary dismissal of a case without explicit instructions.
Mr Wilkins : They were confirmed in writing on 9 June.
Senator BRANDIS: Who was the signatory to the letter? How long does it take to work out who signed the letter that you have in your hand?
Mr Wilkins : We are looking at the papers. I will not be long.
Mr Wilkins : Is the question 'who gave the instructions'?
Senator BRANDIS: Who signed the letter? I asked whether the instructions were confirmed in writing. The answer was yes. You said, 'We have a letter.' It was handed to you. Mr O'Donovan was brought forward. You have been in conclave with him for a good minute or so now, in answer to a question: who signed a letter that you have in your hand.
Mr Wilkins : Senator, just to be clear about what you are asking, we have advice from the AGS recording counsel's views, which was made available on 9 June. Is that what you are asking?
Senator BRANDIS: No, I am asking whether the instructions to bring the application were confirmed in writing, and you said 'yes', and you produced a letter which I assume is the letter Mr Fredericks—
Mr Wilkins : We were referring to this advice, actually, Senator.
Senator BRANDIS: That is not what you said—
Mr Wilkins : What are you asking?
Senator BRANDIS: Let me ask again: were the instructions to bring the application to summarily determine Mr Ashby's application confirmed in writing? If so, by whom?
Mr Wilkins : I will have to take that on notice. I do not have the information, actually.
Senator BRANDIS: Do you not know whether—
Mr Wilkins : No, I do not know, Senator. That is why I am taking it on notice.
Senator BRANDIS: What is this letter you are looking at?
Mr Wilkins : That was the advice, Senator, which I was referring to.
Senator BRANDIS: Mr Govey, the Australian Government Solicitor had the conduct of the proceedings. You are familiar with the principle of practice, to which I have referred, that one does not make an application of this kind without explicit instructions. Did the Australian Government Solicitor, on this occasion, observe that principle?
Mr Govey : I would need to take that on notice, Senator.
Senator BRANDIS: You have to take on notice whether or not the Australian Government Solicitor conducted itself in a professionally appropriate way, Mr Govey?
Mr Govey : I have already indicated earlier, Senator, that as far as I am aware this whole matter was conducted with the utmost professional diligence and—
Senator BRANDIS: If it was then you have got explicit instructions—
Mr Govey : I was—
Senator BRANDIS: to bring this application. From whom did the—
CHAIR: Senator Brandis, let us get Mr Govey to actually finish his answer.
Mr Govey : I was responding to your specific request about whether I knew the precise details about this so-called correspondence, and I have no knowledge about that so I would need to take it on notice.
Senator BRANDIS: The man who had the conduct of the litigation, Mr O'Donovan, would know. He has just disappeared. Have you asked him to make himself scarce to that you can maintain a Nelsonian ignorance about this matter, Mr Govey?
CHAIR: Senator Brandis, let's go back to questions, shall we?
Mr Govey : Can I just make it clear, Senator, that I did not give any such instruction.
CHAIR: And nor should there have been an inference that you did, Mr Govey.
Senator BRANDIS: Mr Govey or Mr Wilkins—either of you can answer this: the Attorney-General told a TV audience last night that she gave all the instructions—
Mr Wilkins : I am not sure she said that, Senator.
Senator BRANDIS: I will read what she said.
Mr Wilkins : She said 'all the instructions', did she?
Senator BRANDIS: 'As someone who was instructing in the case'.
Mr Wilkins : But that does not say that she gave all the instructions, Senator.
Senator BRANDIS: Okay, fair enough, Mr Wilkins. All the important instructions. There is—
Mr Wilkins : She did not say that either, Senator.
Senator BRANDIS: There is no more important instruction, would you not agree, than an instruction to summarily determine a case. We know that that proceeding was filed on 13 June. We know, from an earlier answer of yours, that an instruction was given specifically to that effect. We know you had a conference with the Attorney-General on 9 June. May we take it that ultimately the instruction to bring those two applications—the summary determination application and the relief from the implied undertaking application—were ultimately given by the Attorney-General. Were they?
Mr Wilkins : Yes.
Senator BRANDIS: Thank you. And, on the basis of, among other things, material provided to the Attorney-General, including the material in Ms Mann's affidavit and the text messages—that is, the text messages other than those quoted in Ms Mann's affidavit.
Mr Wilkins : Do you want me to go back over what I have just said, Senator?
Senator BRANDIS: No, I do not.
Mr Wilkins : Ms Mann's affidavit is not relevant to this matter.
Senator BRANDIS: I do not agree with you: it is highly relevant.
Senator Ludwig: You are entitled to ask questions.
Mr Wilkins : She wasn't privy to Ms Mann's affidavit, because it was not relevant to this matter.
Senator BRANDIS: What was the Attorney-General privy to when she gave that instruction?
Mr Wilkins : Advice from senior counsel and the Australian Government Solicitor.
Senator BRANDIS: Did that advice refer to the text messages?
Mr Wilkins : It is privileged
Senator BRANDIS: You seem to have done a pretty good job of waiving the privilege, Mr Wilkins.
Mr Wilkins : I do not think I have waived any privilege at all.
Senator BRANDIS: At any event, since—
Mr Wilkins : The fact that advice was given. You asked that. You are entitled to know that. I have not said what was in the advice.
Senator BRANDIS: All right, you have not. The Attorney-General said last night that:
Thousands and thousands and thousands of pages of text messages were provided …
She went on to say:
Yes, we were certainly aware of the range of material that was provided on those undertakings—
apparently referring to the text messages.
Mr Wilkins : I have explained what that means in terms of the methodology used by the AGS to sift through—
Senator BRANDIS: I do not know that anybody is in a position to gloss what the Attorney-General herself said. We can only interpret her words by their ordinary, natural meaning. But, Mr Wilkins, the text messages that had been provided as an extra to Mr McKemmish's affidavit of 28 May—and time does not permit—I have been through exhaustively, I can tell you. Between the relevant dates pleaded in Mr Ashby's points of claim, that is between January and April 2012, literally hundreds and hundreds—not as the Attorney-General said thousands and thousands; I will be satisfied with hundreds and hundreds—of salacious and sexually suggestive text messages from Mr Slipper to Mr Ashby.
Mr Wilkins, if you look at the definition of sexual harassment in section 28Aof the Sex Discrimination Act, with which I hope you are familiar, it defines sexual harassment as—in these terms:
a person sexually harasses another person … if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
You were present in the committee room this morning when we discussed it, and it was made perfectly clear by the Sex Discrimination Commissioner applying the Commonwealth's own sexual harassment guidelines that that included suggestive comments or jokes, intrusive questions about an employee's private life or body and sexually explicit emails or SMS messages—that is from the Australian Human Rights Commission's guidelines on preventing sexual harassment.
Mr Wilkins, in the relevant period pleaded by James Ashby—if I had hours to spare, which I do not, I could take you through in all their ghastly particularity hundreds and hundreds of text messages from Peter Slipper to James Ashby which answer one or more of those criteria—how could the Commonwealth possibly conclude that this case should be struck out summarily?
Mr Wilkins : I have already explained that, Senator.
Senator BRANDIS: And I put it to you that your explanation, Mr Wilkins, is so deficient from the point of view of legal principle and so plainly preposterous that the only interpretation one could fairly draw, particularly in view of the other application filed on the same day, was to politically protect the Attorney-General and to politically protect the government by exercising unwarranted pressure against a bona fide litigant.
Mr Wilkins : I do not think that is a fair thing to say to a range of officials who have been involved in this, working as professional public servants.
Senator BRANDIS: Well, you know—
CHAIR: Senator Brandis, you have had your turn. It is Mr Wilkins's turn.
Mr Wilkins : You are basically implying that we are all part of some sort of political conspiracy. I do not think that is true at all. It was based on advice from the AGS and from senior counsel.
Senator BRANDIS: Mr Burnside?
Mr Wilkins : Yes, Mr Burnside.
Senator BRANDIS: Was it Mr Burnside, by the way, who said that the prospects of success of the summary application were sound?
Mr Wilkins : I am not going to pry into the legal advice. You have already warned me against that.
Senator BRANDIS: Oh, come on, Mr Wilkins. You said before to this committee that the advice you had received was that it was sound. I asked you whether that advice came from Mr Burnside or a senior counsellor and now you are saying, 'I'm not going to talk to talk about the advice.'
Mr Wilkins : That is right.
Senator BRANDIS: You cannot have it both ways.
Mr Wilkins : You were warning me about waving the advice, so I am not going there.
Senator BRANDIS: You are drawing back?
Mr Wilkins : No, but it was based on—
Senator BRANDIS: You have shown your hem, as they say.
CHAIR: Let Mr Wilkins finish, please.
Mr Wilkins : It was based on advice from the AGS and from senior counsel.
Senator BRANDIS: I put it to you that Mr Julian Burnside did not advise you that you had sound prospects of success in the summary judgement application.
Mr Wilkins : I am not going there.
Senator BRANDIS: Because it is inconceivable that a lawyer as senior as Mr Burnside would have given such advice on such equivocal material.
Senator Ludwig: Senator Brandis, it would be helpful if you asked a question.
Mr Wilkins : This is also a matter before the court.
Senator BRANDIS: Not so far as concerns the Commonwealth of Australia.
Mr Wilkins : This particular point is being considered by Justice Rares as we—
Senator BRANDIS: Anyway, let's see whether at the end Justice Rares agrees with my analysis of the application so far as it concerns the unrelated case of Mr Peterson.
CHAIR: I am going to ask people to stop debating this and see if we can move on to the next agency very soon.
Senator BRANDIS: That is fine, thanks, Madam Chairman. I want to turn now to the question of the mediation. It is the case, isn't it, Mr Govey, or whomever you have behind you who can inform you of these matters, that before the first directions hearing a proposal to mediate the dispute was raised and resisted by the Commonwealth of Australia, and that it was again raised by Mr Ashby at the directions hearing and was again opposed by the Commonwealth? Why did the Commonwealth initially oppose the proposal for a mediation?
Mr Govey : That relates to the conduct of the case and it is not appropriate for AGS as the lawyer to be commenting on that.
Senator BRANDIS: Mr Wilkins, you or the client whom you represent must have given the instructions to initially oppose the mediation. Why did you do that?
Mr Fredericks : It might assist if I were able to read a quote from Justice Rares at the direction hearing on 18 May, when this issue was ventilated, in which His Honour said to Mr Ashby's counsel: 'Mr Lee, how can a mediation meaningfully take place when you say you're not in a position to give some medical evidence that would at the moment enable people to make an assessment about what might be appropriate in terms of resolving the matter, where your client's condition, as you have told me, requires an expert report from a doctor, which you haven't got? How is that practical at the moment?'
Senator BRANDIS: That is all very interesting. The problem is that the Commonwealth would have formed its view as to whether to support or oppose such an application in advance of the commencement of the hearing that morning. So I ask again—and, if you are not in a position to explain, the public can draw their own conclusions: why did the Commonwealth initially oppose Mr Ashby's request to have the matter mediated?
Mr Fredericks : I suspect the Commonwealth drew the same conclusion that His Honour drew.
Senator BRANDIS: Do you know?
Mr Fredericks : I do not.
Senator BRANDIS: Then why did the Commonwealth change its mind and then agree to a mediation after it became aware of the voluminous salacious material in the text messages, which, but for a mediation, had the case gone on, would have come to public light?
Mr Wilkins : The Commonwealth's position all along, as you would expect under the Legal Services Direction et cetera, is to seek ways, within the parameters of proper principle, of settling matters through ADR-type methods and negotiation. On the basis of advice from the Australian Government Solicitor and senior counsel, at junctures where they consider that we should be making settlement offers et cetera, we did do that.
Senator BRANDIS: It strikes me as being more than suspicious, Mr Wilkins, that the Commonwealth opposed a mediation before the text messages had been put on by Mr Ashby in evidence. When it dawned upon the Commonwealth that were the case not settled or mediated or otherwise resolved those text messages would come to light, as indeed they did to the huge embarrassment of the Commonwealth and of the Attorney-General, the Commonwealth's attitude to having a mediation changed. Do you dispute that?
Mr Wilkins : Yes, as I have just explained.
Senator BRANDIS: The mediation which failed, as we know, took place on 3 October. By 3 October there had been the exchange of letters—that is, the Commonwealth's settlement offer of 26 September and the letter of acceptance from Harmers Workplace Lawyers of 27 September. Did the Commonwealth nevertheless attend the mediation?
Mr Wilkins : I am advised, yes.
Senator BRANDIS: Why did the Commonwealth involve itself in the mediation when there was a settlement of the case constituted by the exchange of letters of 26 and 27 September and the mediation was not until 3 October?
Mr Wilkins : The judge directed us to.
Senator BRANDIS: So there had been no discontinuance of the action against the Commonwealth by that stage on Ashby's part?
Mr Wilkins : No, because the deed still had to be settled.
Senator BRANDIS: Then there can be argument about whether that was an entire agreement or it was subject to engrossment in a deed; I understand that. Did Mr Burnside represent the Commonwealth at the mediation?
Mr Wilkins : Yes.
Senator BRANDIS: Mr Slipper was present at the mediation—we know that because that was the day he was let into the court by the special judges door as a favour of the Attorney-General. Who represented Mr Slipper at the mediation?
Mr Wilkins : The reason why we are pausing is that yes, I can say that Mr Slipper attended, but what happened thereafter is confidential.
Senator BRANDIS: What was said is confidential, but I am not asking about what was said. I am asking: who represented Mr Slipper at the mediation?
Mr Wilkins : We are trying to remember the name. We will take that on notice.
Senator BRANDIS: Take it on notice for about five minutes while Mr O'Donovan searches in his notes and we will move on for the sake of not wasting time. It is the case that when the case returned—
Mr Wilkins : It is Trish Cavanagh.
Senator BRANDIS: Who is Trish Cavanagh? Is she a lawyer?
Mr Wilkins : She is the person whose name I was given as the person representing Mr Slipper.
Senator BRANDIS: Mr Burnside did not purport to, as it were, speak on Mr Slipper's behalf at the mediation?
Mr Wilkins : We are not going into the details of the mediation.
Senator BRANDIS: I did not ask you about what was said.
Mr Wilkins : We are going into the way in which it was conducted.
Senator BRANDIS: Okay, I will move on. When the matter came back to court the next day, Mr Burnside said to the court that he was happy his role was finished because the case had settled, arguably subject to engrossment in it by a deed, but for all practical purposes the case had settled. Mr Burnside said to Justice Rares that he was happy to be amicus curiae. You are aware of that, aren't you?
Mr Wilkins : I am now.
Senator BRANDIS: It was widely reported at the time. Is this the first you have heard of it?
Mr Wilkins : It is the first I have heard of it, but keep going.
Senator BRANDIS: Did Mr Burnside have a conversation with the Attorney-General that morning?
Mr Wilkins : I do not know.
Senator BRANDIS: Please find out. Do you know, Mr Fredericks?
Mr Fredericks : I do not know.
Senator BRANDIS: Does Mr O'Donovan know? You were in court, Mr O'Donovan, weren't you? I know you have been silenced like something out of a Stalinist show trial.
Mr Wilkins : The answer is apparently privileged.
Senator BRANDIS: Privileged? Whether a conversation occurred?
Mr Wilkins : Apparently.
Senator BRANDIS: That cannot be privileged; the content can be.
Mr Wilkins : I have just been told it is privileged.
Senator BRANDIS: I will ask again because perhaps Mr O'Donovan, who has not covered himself with glory in this, has misunderstood the question. Did the Attorney-General have a conversation with Mr Julian Burnside QC on the morning of 4 October?
Mr Wilkins : I am not sure he knows, but it is privileged apparently. The advice is that the question is privileged.
Senator BRANDIS: It is not. Anybody can see that you cannot make something privileged by simply asserting that it is privileged. I am asking whether a conversation occurred. I am not asking about the content or the purpose of it.
Mr Wilkins : Apparently it involves the disclosure of a communication between legal advisers.
Senator BRANDIS: No, it does not. I am asking whether the Attorney-General and Mr Julian Burnside had a conversation and that is the limit of my question.
Mr Wilkins : Let me put it this way: I suspect that what Mr O'Donovan is saying is that he has had a discussion with Mr Burnside and to disclose the contents of that conversation would be disclosing a matter of privilege.
Senator BRANDIS: You know it has been reported, don't you, that such a conversation did occur?
Mr Wilkins : No, I did not know.
Senator BRANDIS: So you dispute those reports, do you?
Mr Wilkins : No, I do not know if it has been reported or not.
Senator BRANDIS: Did you, the Attorney-General's Department, on behalf of the Attorney-General, instruct Mr Burnside, or did the Attorney-General instruct Mr Burnside to offer to appear as amicus curiae?
Mr Wilkins : Apparently, yes, we did instruct him.
Senator BRANDIS: Why? The case had settled; the Commonwealth of Australia was no longer an interested party. Why was such an extraordinary instruction given to Mr Burnside which was, of course, rejected by the judge?
Mr Wilkins : Yes, so I am informed now. I am also told—Mr Fredericks told me—that it was a good idea.
Senator BRANDIS: Is that the basis upon which the Commonwealth of Australia now conducts litigation—because somebody thought it was a good idea at the time?
Mr Wilkins : I did not say 'at the time'. We thought it was a good idea.
Senator BRANDIS: Well, hopefully it was at the time you thought it was a good idea. It does not seem like a very good idea now, does it, given that the judge dismissed it out of hand?
Mr Wilkins : I am not sure he dismissed it out of hand.
Senator BRANDIS: Yes, he did.
Mr Wilkins : Apparently he said he appreciated it but he said no.
Senator BRANDIS: Mr Justice Rares is very polite. You said before, I think, Mr Govey, that the settlement offer of 26 September 2012 was based on advice about prospects. That is right isn't it? In fact, under the legal services direction, the settlements have to be based on counsel's advice about prospects, don't they?
Mr Govey : On external legal advice over a certain amount.
Senator BRANDIS: And in a case like this, where you had senior counsel retained, the advice would have been counsel's advice, wouldn't it?
Mr Govey : I am not in a position to say whether it was AGS's advice, counsel's advice or a combination of both.
Senator BRANDIS: Maybe Mr Damien O'Donovan knows.
Mr Wilkins : It was advice from both.
Senator BRANDIS: So it was advice from senior counsel endorsed by the AGS or vice versa but essentially to the same effect. Is that right?
Mr Wilkins : Yes.
Senator BRANDIS: The letter signed by Mr Damien O'Donovan on 26 September was of course not the first offer of settlement, was it?
Mr Wilkins : No.
Senator BRANDIS: It was the second written offer of settlement, was it not?
Mr Wilkins : That is true.
Senator BRANDIS: The first offer of settlement was—remind me—$15,000? Is that right?
Mr Wilkins : I am told the offer was made without prejudice.
Senator BRANDIS: Of course. So was the second one. That is not the point of the question. It was superseded by the subsequent offer. It is not a prejudicial question, because the case did subsequently settle by a subsequent offer and the—
Mr Wilkins : There were actually three offers.
Senator BRANDIS: Three. Well, just take us through them please by reference to the amounts and the dates.
Mr Wilkins : I will not give you the amounts but I will give you the dates, Senator. They were 13 June, 5 September and 26 September.
Senator BRANDIS: The offer of 13 June did not offer any money sum, did it, in settlement of the case?
Mr Wilkins : As I said, these are without prejudice, so I am not going to get into the details—
Senator BRANDIS: Of course they were without prejudice offers, but that is irrelevant because the case is now settled. So they are of historical interest only.
Mr Wilkins : That is not my interpretation of how to treat such documents.
Senator BRANDIS: Well, you are wrong, Mr Wilkins. A without prejudice offer of course cannot be used to the prejudice of the party making it. That is why it is called 'without prejudice'.
Mr Wilkins : I understand that.
Senator BRANDIS: But, once the dispute has been resolved by a subsequent settlement, the history of earlier offers is of historical interest only; it cannot prejudice the party. So, Mr Wilkins, the first offer—the offer on 13 June—was not an offer for the payment of any money at all to Mr Ashby?
Mr Wilkins : I am not sure; I have not read it.
Senator BRANDIS: It seems to be right there. So, Madam Chair, if we can have another—
Mr Wilkins : That seems to be correct.
Senator BRANDIS: Correct; all right. Was the offer of 13 June an offer based on counsel's advice or advice from the AGS or from both?
Mr Wilkins : It was based on advice, yes.
Senator BRANDIS: From counsel, the AGS or both?
Mr Wilkins : I do not know, Senator.
Senator BRANDIS: Mr Damien O'Donovan, sitting behind you, I am sure would know. Perhaps you could ask him.
Mr Wilkins : I will have to take it on notice, Senator.
Senator BRANDIS: All right. The offer of 5 September was the $15,000 offer. Was that based on counsel's advice?
Mr Wilkins : We will take it on notice, Senator.
Senator BRANDIS: I saw Mr Fredericks just say 'yes' to you.
Mr Wilkins : No, he did not; he said, 'Take it on notice.'
Senator BRANDIS: All right. Perhaps I misheard him. The third offer, which was accepted, is the letter of 26 September—which was accepted the following day—and that was for $50,000. Can I read to you, please, Mr Wilkins, paragraph 15 of that letter, which strikes me as a little curious? Mr Damien O'Donovan writes, because the letter is over his signature:
Accordingly, on a reasoned assessment of your client's case—
this is a letter, of course, to Ashby's solicitors—
the most he can expect to recover if the matter proceeds to a judgment in his favour is in the order of $37,500. In order to avoid further costs, the first respondent is willing to pay $50,000, a sum which exceeds any reasonable calculation of your client's loss based on decided cases.
Mr Wilkins : And it goes on to say:
It does so on the basis that the costs of continuing with this proceeding exceed the amount in contest by such an enormous margin that our client is willing to pay a small premium for early resolution and in recognition of the fact that the matters alleged may have resulted in some small amount of future economic loss.
Senator BRANDIS: Yes, that is right. I was not trying to keep that from you.
CHAIR: Senator Brandis—
Senator BRANDIS: I am finishing up on this point.
CHAIR: I am going to interrupt you for a moment. Between the two of you, you keep referring to numerous amounts of documents. They have not been tabled and they need to become the property of the committee. So, before either of you ask another question or answer another question, I am going to seek that the documents all be provided to the secretariat.
Senator BRANDIS: I am happy to table the letter from which I have been quoting from Mr Damien O'Donovan.
Mr Wilkins : It has some legal advice in it.
Senator BRANDIS: I have a copy.
CHAIR: I am not sure how either of you think all the members of the committee—
Senator BRANDIS: You asked me to table it and I am tabling it.
CHAIR: can actually participate in this happening if we do not have a tabled document. That is the normal practice.
Mr Wilkins : It is a public document, Madam Chair.
Senator BRANDIS: I am nevertheless curious as to how it comes to be that an offer is made of $50,000 when the maximum that Mr Damien O'Donovan assesses the Commonwealth's exposure to be is $37,500. Is it to be explained by those sentences you read about additional costs?
Mr Wilkins : Yes, absolutely.
Senator BRANDIS: Entirely explained by that?
Mr Wilkins : Yes, entirely explained by that.
Senator BRANDIS: But, Mr Wilkins, if the Commonwealth had won this case you would have got a cost order against Mr Ashby, wouldn't you—costs would have followed the event?
Mr Wilkins : The Fair Work jurisdiction is a no-cost jurisdiction, of course, Senator, and you know that.
Senator BRANDIS: I do, but the live issue in this case, as you have told us several times, from the Commonwealth's point of view, was abuse of process. If you had won this case not only because you were alleging abuse of process would you have got a costs order but you would have been in a position to ask for an indemnity costs order.
Mr Wilkins : What you say is partly correct. If there had been just a resolution of the matter heard before the Federal Court, but it is partly the Fair Work jurisdiction as well, so this has actually wrapped up the entire dispute. So it is a no costs jurisdiction. So I do not think it is fair to say that the Commonwealth would have won all those costs at all. You can see what has been said in the letter. I do not intend to go over that again.
Senator BRANDIS: I see the basis put forward but you acknowledge, don't you, that because of the peculiar way in which this litigation was conducted by the Commonwealth, alleging abuse of process and vexatious litigation—
Mr Wilkins : That was not the Commonwealth. The Commonwealth did not initiate that.
Senator BRANDIS: Well, you say it follows—
Mr Wilkins : It was a matter initiated by Mr Slipper.
Senator BRANDIS: But the Commonwealth filed its own application seeking the same orders and the same relief.
Mr Wilkins : It joined itself to an action that was already underway.
Senator BRANDIS: Regardless—
Mr Wilkins : Well, no, it is a very important point.
Senator BRANDIS: I do not think so, Mr Wilkins. In the eyes of the court—
Mr Wilkins : It may not have been that the Commonwealth would have initiated this action if left to its own devices.
Senator BRANDIS: It may not, but the fact—
Mr Wilkins : But, the case having started, it may well have been that the Commonwealth took the view that to protect its own position it needed to join that action. So I do not think you can keep saying the Commonwealth started this action.
Senator BRANDIS: What you do not seem to follow is that, regardless of which party was the first applicant, the Commonwealth chose also to be an applicant—
Mr Wilkins : I understand that entirely.
Senator BRANDIS: to seek the same and similar relief and, in the eyes of the court—
Mr Wilkins : I understand all of that.
Senator BRANDIS: the issue presented before the court—
Mr Wilkins : As you would appreciate, being experienced counsel, if another party starts an action that, to protect yourself, it may well be in your interests to join that action.
Senator BRANDIS: There may well be tactical reasons for doing so. I understand that fully and I agree with you.
Mr Wilkins : It may be quite different if somebody else starts it than if you start it yourself.
Senator BRANDIS: But, nevertheless, whatever the tactical reasons that might have persuaded the Commonwealth to bring its own application, following Mr Slipper's application, the fact is that in the eyes of the court the judge had two applications to similar effect before him. It is not as though one was senior to or more important than the other; there were two parties and both of them were seeking orders to the same effect.
Mr Wilkins : One of them is still actually being decided.
Senator BRANDIS: Indeed. But that is not us; that is not the Commonwealth of Australia.
CHAIR: We are going to have to seriously move on.
Senator BRANDIS: Madam Chair, I am nearly finished.
CHAIR: You said that 35 minutes ago, so this is the last question.
Senator BRANDIS: In those circumstances, given the Commonwealth, for whatever tactical reasons, decide to make this an issue, it would have had very good prospects of getting an indemnity costs order because, although this is ordinarily, as you say, a no costs jurisdiction—
Mr Wilkins : I do not agree with that proposition. I understand what you are saying, but I do not agree with it.
Senator BRANDIS: Let me finish by reading to you from paragraph 2 of appendix (c) of the Legal Services Directions:
A settlement on the basis of legal principle and practice requires the existence of at least a meaningful prospect of liability being established. In particular, settlement is not to be effected merely because of the cost of defending what is clearly a spurious claim.
This is what concerns me about this case. On 13 June, apparently on instructions given by the Attorney-General on 9 June, the Commonwealth filed an application seeking to summarily dismiss the claim. On 26 September the Commonwealth made its third settlement offer of the claim, an offer which could only have been made if the Commonwealth was of the view that there was a meaningful prospect of Mr Ashby being successful and that the claim was not spurious. Those do seem to me, I must say, to be inconsistent propositions. I heard what has been said in relation to the nature of an abuse of process claim and I have told you what I think of it.
Mr Wilkins : We will just have to differ, because I do not think they are inconsistent propositions at all. I cannot see any problem and I think we have complied with the legal services directions. I do not see any contradiction.
Senator BRANDIS: You cannot succeed in an order 26 application under the Federal Court rules unless you persuade the judge that the claim is so without merit that it ought to be summarily determined.
Mr Wilkins : That is where I think we differ. The basis of the Commonwealth support for the action that was brought by Mr Slipper was on the basis that it was brought for collateral purposes, it was a matter of the motivation of Mr Ashby. It was not a matter of whether or not his substantive case was hopeless, it was to do with—
Senator BRANDIS: Mr Wilkins, this is—
CHAIR: Senator Brandis, let Mr Wilkins finish.
Senator BRANDIS: This is where you just do not seem to follow my point.
CHAIR: Mr Wilkins, I am going to offer you the opportunity to finish and then we are going to move on to the next agency.
Senator BRANDIS: I want to put a proposition to you. Even if the abuse of process claim was a stand-alone claim as you seem to be saying, it could not have been summarily determined when there were contestable facts based on inferences.
Mr Wilkins : It is being determined by the judge as we speak.
Senator BRANDIS: And in those circumstances there is a plain inconsistency between the view of the case taken on 13 June and the view of the case when the $50,000 settlement offer was made on 26 September, and all that had changed, I suggest you, is that your ultimate client, the Attorney-General, had come to appreciate the real significance for her and the government of the publication of the text messages.
Mr Wilkins : That is not the case, but I am not sure that there is anything I can say—
CHAIR: There is nothing further to say. We allocated two hours to the AGS and we have been going two and a half hours. We have a very substantial program to finish. Mr Govey, I am going to thank you for your time this evening. If senators have any other questions they are going to put them on notice. Thank you very much to you and your officers.
I am sorry to the Institute of Criminology. Because we are running so short of time now, we are going to put our questions to you on notice. The same with the officers from CrimTrac. My apologies on behalf of some of my colleagues, not necessarily in my party of course, for making you stay. I am going to ask officers from ASIO to come forward.