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Wong, Sen Penny
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Legal and Constitutional Affairs Legislation Committee
(Senate-Tuesday, 24 February 2015)
Australian Human Rights Commission
Senator Jacinta Collins
Senator IAN MACDONALD
Ms K Jones
Australian Federal Police
Senator JACINTA COLLINS
Australian Security Intelligence Organisation
Senator JACINTA COLLINS
Office of the Director of Public Prosecutions
Senator JACINTA COLLINS
Administrative Appeals Tribunal
Office of the Australian Information Commissioner
Senator JACINTA COLLINS
- Australian Human Rights Commission
- ATTORNEY-GENERAL'S PORTFOLIO
Content WindowLegal and Constitutional Affairs Legislation Committee - 24/02/2015 - Estimates - ATTORNEY-GENERAL'S PORTFOLIO - Australian Human Rights Commission
Australian Human Rights Commission
CHAIR: I welcome again the Attorney-General, Senator the Hon. George Brandis, who is also Minister for the Arts and represents the Minister for Justice. I also welcome officers of the Attorney-General's Department. We are dealing with the Human Rights Commission first. I welcome Professor Triggs and her colleagues. Thank you very much for joining us. Attorney, do you or the secretary wish to make an opening statement about the department broadly before we move on to the Human Rights Commission?
Senator Brandis: No, thank you.
CHAIR: We will move immediately to Human Rights Commission. I might just mention for the benefit of the committee that the committee has set down from 9 till 11 for the Human Rights Commission. As you know, Senate timetables these days are a wishful hope. Under the standing order introduced just before the Senate changed last year, as long as any senator has any questions on a particular area, I am obliged to continue calling them. So it is my suspicion that we might go a little bit longer than the two hours that has been allowed for the Human Rights Commission. But we will see.
Senator Brandis: Could I just indicate, for the benefit of all members of the committee, we did not reach the Australian Security Intelligence Organisation at the last estimates and, as a result, we have yet to hear from the director-general of security, Mr Lewis, who was going to, at the last estimates, give us a statement about the national security environment. Can I just mention, so that people may bear it in mind, that of course ASIO is on the list today. Mr Lewis is attending. I hope that, unlike the last estimates, there will be an opportunity, given the importance of this issue and the Prime Minister's statement yesterday, in particular, for the director-general of security to brief the committee and, through the committee, the Australian people on his assessment of the security situation.
CHAIR: I might just, for the record, indicate that we did actually examine ASIO at the last estimates, but it was on a spillover day, which, regrettably, the director could not be at, which the committee understands and accepts. Also, I might say that, for reasons that are beyond the control of ASIO, we did have them on at an earlier stage today but, at your request, because of national security council, they were put back. As a result, I very much doubt that we are going to hear from them today. But we live in hope.
Professor Triggs, welcome again. Would you like to make an opening statement before subjecting yourself to any questions?
Prof. Triggs : Yes, Senator Macdonald, I would like to make an opening statement. Thank you very much for the opportunity to speak to you. In recent weeks questions have been raised about the decision by the commission to conduct a national inquiry into the health and developmental impacts of prolonged immigration detention on children. I would like to take a few minutes of your time to respond to these questions by setting out the commission's statutory functions and the work of the commission in respect of these children in 2013 and 2014 and by explaining why the inquiry was held.
The report of the commission's inquiry into the impact of immigration detention on children, The forgotten children, has now been tabled in parliament and is available to the public. The inquiry took place from January 2013 to October 2014, covering the periods of both the former and current governments. The medical and other data in the report provide credible and objective evidence that mandatory, prolonged and often isolated and indefinite detention has a significantly damaging effect on children. The bipartisan nature of government responsibility for this damage is clear on any fair reading of this report.
May I begin by wholeheartedly welcoming the release by the government of about 700 children over the last few months. We hope that our inquiry has played some role in encouraging this change in policy. However, on the latest figures available to the commission, about 330 children remain in closed detention in Australia and Nauru, and while the numbers in Australia are declining, the numbers in Nauru appear to be increasing. In summary, the inquiry was called in response to mounting concern about the health impacts of prolonged detention on children and the significant numbers that remained in detention.
The Australian Human Rights Commission has been on record since mandatory detention was first introduced in 1992 reporting to parliament that prolonged detention of children amounts to arbitrary detention under the International Covenant on Civil and Political Rights and on the convention for the protection of children. This law is well settled. Arbitrary detention without charge or trial by our peers is contrary to the rule of law and to the international obligations to which Australia has agreed. The aim of the inquiry was not to revisit this settled law but rather to conduct an in-depth assessment of the medical and developmental impacts on children of lengthy immigration detention.
The Australian Human Rights Commission Act 1986 provides the commission with functions to inquire into any act or practice that may be inconsistent with or contrary to any human right. A human right is defined by reference to certain human rights treaties to which Australia is a party, including the two treaties I have just mentioned. These treaties, however, have not been legislated as part of Australian law by parliament. The consequence is that, while the government of the day may act according to Australian laws, these actions may well be contrary to our international legal obligations.
In the absence of national laws that apply international rights in Australia, the Human Rights Commission provides a necessary, independent and respected check and balance on government to ensure that our democracy is a just one. Most of the work of the commission and the commissioners who have joined me here today attracts bipartisan support from government, whether it concerns discrimination on the basis of race, sex, sexual orientation, age or disability, social justice for Aboriginal and Torres Strait Islanders or the rights of children. Some of our work, especially in relation to refugees, does not always command the support of the government of the day. It is for this reason that the independence of the commission is protected by statute, allowing us to continue our work without fear or favour. It is with that legal background that I would like to turn to two issues that have been raised about the inquiry into the impacts of lengthy detention of children.
The first concerns the program of work on refugees in 2013 and 2014. The commission has worked tirelessly over the last decade, but especially in the last three years, reporting on the failure of respective governments of the time to comply with their international obligations. I would like to table a document that summarises more than 180 pieces of work completed by the commission on immigration detention over the last five years, including, of course, the most recent years.
It might be useful to begin, if I may, with a report of my predecessor, the Hon. Catherine Branson, who completed in July 2012 an inquiry into the age determination process for children held in detention. Following that inquiry, the commission conducted a range of activities in 2013 in respect of the rising number of refugee children detained in Australia and offshore—a program that is fully documented in our report. For example, we conducted monitoring visits to detention centres in mainland Australia and Christmas Island. Within eight weeks of my appointment in July 2012, immediately on the tabling of Catherine Branson's report into age determination processes, I was at the Villawood detention centre, and four weeks later I was on Christmas Island interviewing children and their families.
The report of these visits was the first of three such reports in my first 15 months as President. The commission has issued 36 reports to parliament, in relation to 89 complainants, over the last four years, in respect of immigration detention and asylum seekers, each of which must be assessed independently by the commission. We have also researched and provided a report to parliament, in October 2013, the Snapshot Report, a sort of 'state of the nation' report with regard to the continued detention of detainees. We provided many submissions to parliamentary committees examining proposed changes to legislation, and in particular to the Migration Act. We have intervened in a number of High Court cases relating to refugees and asylum seekers. I have regularly met and written to ministers for immigration raising concerns about children in detention centres in Curtin, Manus island and Christmas Island, about the situation of unaccompanied minors and those of differing sexual orientation, and I have repeatedly urged the government to ensure that the detention of children is a matter of last resort. The documents you have now received show that issues relating to children in detention were raised in every meeting that I had with the minister or the relevant minister at the time. In summary, throughout 2012 and 2013 the commission was fully committed to the monitoring of and reporting on the conditions of hundreds of children in detention.
Secondly, questions have been raised about the precise timing of the inquiry. I shall try to be as clear as I can. The decision to hold an inquiry was one that evolved gradually through 2013 and reflected many factors. There was no one trigger but a combination of many, but of overarching importance were the high numbers of children—
CHAIR: You can talk to us, Professor Triggs.
Prof. Triggs : I'm sorry?
CHAIR: You can talk to us rather than—you keep looking at the media.
Senator WONG: She's just reading.
Prof. Triggs : I was momentarily distracted by the clicking of the cameras—
CHAIR: I am sorry.
Prof. Triggs : but I shall try my very best to look in the other direction. I am sorry if it worries you that I looked at the cameras.
CHAIR: That is okay.
Prof. Triggs : Of overarching importance were the high numbers of children held in detention, numbers that fluctuated considerably over the year. Other factors were the increasing periods of time for which the children were being held, the need to ensure the commission had the necessary resources to conduct an inquiry, especially as we had just completed an inquiry in 2012 and a full report to parliament in 2013, and the forthcoming election, when information would not be available through the caretaker period.
Finally, good governance of the commission requires annual planning. The commission confirmed its work plan for 2013-14 on 26 June 2013, which envisaged a 10-year review in 2014 of the situation of children in detention. That was to commence only once the Snapshot Report was completed and subject to available resources.
I would like to table two graphs which detail evidence that informed the commission's decision to hold an inquiry. These graphs show the following: between the peak time in July 2013 and October 2013, the former government released about 750 children. In light of our continuing work throughout that period, with regard to children, there was at that moment no immediate urgency to call the inquiry, even were the commission in a position to do so. It soon became clear, however, that, after October 2013, the numbers of children being released stagnated, so that four months later, by February 2014, about the same number of children remained in detention as at the election. Obviously, the period of time for which children were being held was lengthening as each week and month went by. These evolving factors led to the decision by the commission on 12 December that the long-planned 10-year review would be a full inquiry with powers to compel the production of evidence. The Attorney and the Department of Immigration were advised accordingly on 22 January 2014.
The documents we have given you confirm my earlier advice to this Senate committee that I regularly discussed concerns about children in immigration detention with all ministers for immigration. I did not however specifically refer to the proposed review or inquiry with any minister in the former government, and the documents confirm that.
In conclusion, over the last 10 years, the commission's extensive work for children in immigration detention documents beyond doubt the trauma and damage that is being inflicted on them. The report speaks for itself. Australians can now read it and make up their own minds about the consequences of Australia's detention policies for children. May I respectfully ask the members of the Senate to read the report, to consider the findings and to act on the recommendations we have made. The commissioners and I will be very happy to answer any questions you have.
CHAIR: Thanks, very much, for that, Professor Triggs. I think the evidence we had yesterday—someone might correct me—just to update you, was 136 children—
Senator REYNOLDS: Twenty six.
CHAIR: 126 children still in detention.
Senator HANSON-YOUNG: That was the main round.
Senator Brandis: Senator Macdonald, I have asked the minister to provide the figures as of this morning. Would it be helpful to the committee if I read them onto the record?
CHAIR: I am trying to find my notes. We had the department in yesterday, so we were getting some of these figures.
Senator Brandis: These are the very latest figures available as of this morning.
CHAIR: That would be helpful because Professor Triggs was using 336 or something, but it is nowhere near that.
Senator JACINTA COLLINS: Sorry, Chair, just before we go to that, could I—
Senator Brandis: Do have the call, Mr Chairman?
CHAIR: I will just hear Senator Collins' point.
Senator JACINTA COLLINS: Could I ask that we have tabled a copy of the opening statement?
CHAIR: Yes, please. We do that as a matter of course. Senator Brandis, that would be helpful before I move to senators for questions.
Senator Brandis: These are the latest figures which I obtained from the minister's office this morning. The number of illegal maritime arrival children held in detention in Australia at the moment is 126. The number of children in detention on Christmas Island is zero. The number of children transferred from Christmas Island since December last year who remain in detention on the mainland is three, two of whom will be transferred into the community in the next several days. As well, there are 116 children currently in detention in regional processing centres on Nauru. And the number of children in detention in regional processing centres on Manus Island is zero. As of today, the total number of illegal maritime arrival children in detention in the system is 245, of whom 129 are in detention on the Australian mainland. As well as that, there are 28 children in detention in the system who are not illegal maritime arrivals.
CHAIR: Thank you for that, Senator Brandis. Yesterday we heard that the peak in July 2013 was 1,992 children in detention. At the change of government, it was 1,342. Minister, perhaps you could pass on to the minister our congratulations in getting the 1,992 down to 126. That is an incredible effort.
Senator Brandis: When I spoke to the Human Rights Commission's human rights awards last December, I did promise that all the children who were in detention on Christmas Island would be transferred to the mainland by Christmas. That was done. I did say that by Easter of this year the government expected the number of children in detention on the mainland would be close to zero. There is a processing issue involved, obviously.
Senator O'SULLIVAN: Welcome, Professor Triggs. Firstly, would you mind turning your attention to the document that is referred to as the Work Plan 2013-14, a copy of which was supplied to us, thank you, under questions on notice. I have just a general question. Could you talk briefly about what the work plan is—how it is created, who creates it, its general circulation, the intent and purpose of it?
Mr Hoitink : I am going to ask my executive director to deal with that question as she basically manages the work program and drafting that program within the commission.
Ms Raman : We go through a process of planning early in the year. We do a situational analysis in about February-March. We talk to a range of stakeholders and we then determine some priorities for the commission. Obviously we cannot focus on all human rights issues that confront the public, with limited resources, so we have a strategic planning process which all commissioners are involved with. We develop the plan in June.
Senator O'SULLIVAN: I imagine, in a practical sense, it is a staff member of the commission who prepares the content of the work plan under your direction and supervision?
Ms Raman : That is correct.
Senator O'SULLIVAN: And, if I understand what you just said, all stakeholders have input into what might go into that plan, including the commission.
Ms Raman : That is right.
Senator O'SULLIVAN: Do you have a copy of that plan in front of you, Ms Raman?
Ms Raman : Yes, I do.
Senator O'SULLIVAN: At the heading, after the words 'work plan 2013-14' there is in brackets the word 'April' and then '2013'. I am trying to determine the date that this document that I am looking at was first published.
Ms Raman : A draft of it would have been done in April but, as you can imagine, planning takes time and it was not signed off by the commission until June.
Senator O'SULLIVAN: I accept that, but am I entitled to form the view that this document came off the printer in April 2013—in its early form. I accept that there may have been evolution.
Ms Raman : You are right. That is right.
Senator O'SULLIVAN: This has been provided to the committee upon request so that we can get our heads around the genesis of the dates—the evolution of the decision for the inquiry. What level of circulation occurs with this document? I am talking about the April document.
Ms Raman : It is an internal document.
Senator O'SULLIVAN: So it is freely distributed among stakeholders within the commission. In a physical sense they get a copy to look at, work on and have input into?
Ms Raman : This would have been the team working on immigration detention and the director of policy, myself, legal staff and the president.
Senator O'SULLIVAN: I will ask this question first in a general sense and then a more specific sense. Specific to the work plan 2013-14, do you know whether there had been much significant change between this draft and the final work plan document?
Ms Raman : I do not think so. I do not think there was significant change.
Senator O'SULLIVAN: What is its circulation level of the final workplace document? Do you share that with the department? Could I access that?
Ms Raman : No, it is an internal document that goes to the commissioner.
Senator O'SULLIVAN: Forever?
Ms Raman : You would have seen that we publish an official version, which has a lot of detail in it, which is called the 'commission work plan 2013-14'—
Senator O'SULLIVAN: A copy of which was tabled, I think, by the Attorney at the last hearing.
Ms Raman : That is right.
Senator O'SULLIVAN: Bringing me to my question: the copy that we have been provided with, under the discovery of taking questions on notice, is very heavily redacted.
Ms Raman : Yes.
Senator O'SULLIVAN: Can I ask who was responsible for the redactions and then we can—
Prof. Triggs : I will ask the director, Ms Julie O'Brien, who directs the legal team, to deal with that question.
Ms O'Brien : The reason for the redactions in the document dated April 2013 is because they fell outside the scope of your request at the last estimates meeting. You asked a specific question and a request for documents, and those parts of the work plan that fell outside of your request were redacted.
Senator O'SULLIVAN: If I were to now ask you to take on notice to provide me with a copy in its entirety, would it make its way here without redactions?
Ms O'Brien : Your request would probably be in relation to a particular question rather than just a blanket request for documents.
Senator O'SULLIVAN: Not necessarily, Ms O'Brien. I am interested in a copy of the work plan 2013, the April draft, without redactions.
Ms O'Brien : We can certainly take that question on notice.
Senator O'SULLIVAN: Do you have a copy with you—an unredacted copy?
Senator WONG: She has taken it on notice.
Ms O'Brien : I have taken the question on notice.
Senator O'SULLIVAN: I have the floor.
CHAIR: Just ignore the interjections, please, Senator.
Senator O'SULLIVAN: Do you have an unredacted copy with you here now?
Ms O'Brien : Yes, I do.
Senator O'SULLIVAN: Would you supply me—
Senator WONG: Point of order, Chair.
CHAIR: There is a point of order. I will just stop my clock. Yes.
Senator WONG: The witness has taken the question on notice, as she is entitled to do.
CHAIR: There is no point of order. Let us not waste time.
Senator Brandis: Senator O'Sullivan, I will provide you with a copy of the document.
Senator O'SULLIVAN: Thank you, Attorney. I might just pursue this for a moment. Ms O'Brien, would you have an objection to supplying us with an unredacted copy of the work plan, the draft of April 2013?
Ms O'Brien : I would like the opportunity to consider that, and that is why I have taken the question on notice. The reason for the redactions in the copy that was provided to the committee is that it was not relevant to your request. It fell outside the scope. I would like the opportunity to consider it and I will take the question on notice.
Senator O'SULLIVAN: Attorney, do we have a time line with respect to that? It goes to the heart of some of the questions.
Senator Brandis: Senator O'Sullivan, I will obtain a copy of the document and I will provide it to you. And I will do that today.
Senator O'SULLIVAN: Thank you. Professor Triggs, obviously the thrust of my question is going to be to try to tidy up some of the anomalies, if you will, in relation to our exchange before the committee on the last occasion concerning the dates, the state of mind—your state of mind or the commission's state of mind—with the evolution of the decision. Various documents supplied talk about the 10-year review of the last resort report. In your mind, are we dealing with a different creature when we refer to it as a review as opposed to an eventual publication that is referred to as an inquiry?
Prof. Triggs : I will ask the legal adviser to describe to you the differences, which are relatively minor, between a review and an inquiry.
Senator O'SULLIVAN: No. With respect, Professor Triggs—
Senator WONG: I am—
CHAIR: Just ignore interjections, please, Senator O'Sullivan. We will get on much better. And, please, Senator Wong, you have been here long enough. This is not the Senate chamber and I will not have you interjecting consistently, as you do there. So, please keep quiet.
Senator WONG: Chair, you should protect the witnesses. That is your job as chair.
Senator O'SULLIVAN: Professor Triggs, my question is to you in terms of your state of mind—
Senator WONG: She is entitled to refer the question.
CHAIR: Would you please keep quiet. You are in breach of standing orders by continually interjecting. Senator Wong, if you are going to interject I am going to suspend the proceedings and ask you to leave. Do not interject.
Senator WONG: Good luck!
Senator O'SULLIVAN: Professor Triggs, my question is in relation to your state of mind. In our previous exchanges you have been, quite properly, heavily involved in the evolution of the planning in relation to the determination of the inquiry. I am asking you to share with me your mindset over the time as to whether your initial thoughts of having a review may have become more urgent, may have become broadened in your mind because of circumstances or data that was made available to you.
Prof. Triggs : A key difference between what one might describe as a review and an inquiry is that the president of the commission under a statute has a specific power to call an inquiry that brings with it various compulsion powers, in particular to compel evidence and to compel witnesses. As I have detailed to you in my opening statement, we had completed a full inquiry in July 2012 and we were evolving the question as to whether we would embark on another resource-intensive inquiry. So, for the planning period throughout 2013, we were using the term 'a review'. However, as the numbers increased and the periods of time for which the children were held increased, the need to hold a full inquiry as distinct from a review became clearer and crystallised in those last months of the year.
Senator O'SULLIVAN: In documents provided, let me direct you to the April draft of the work plan and take you to page 7, under the heading—what? Would you just look at the opening sentence: 'Produce a brief public report on immigration detention.' It went on to say other things, but that is the opening part of it.
Ms O'Brien : I might just be able to clarify for you, Senator.
Senator O'SULLIVAN: With respect, Ms O'Brien, my question was to the chair.
CHAIR: What is the question?
Prof. Triggs : What in fact are you asking, please, Senator?
Senator O'SULLIVAN: Chair, you acknowledge you have read that section. Would you agree that the report was anything but a brief public report?
Prof. Triggs : I am afraid, Senator O'Sullivan, you might be confused. This is the annual report on the state of the system onshore and offshore, at 3.2 of that document. And that is that report. This one here that you may have seen, Asylum seekers, refugees and human rights—that was published towards the end of 2013.
Ms O'Brien : The work plan refers to all of the work done by the civil and political rights team, not just the 10-year review, which is dealt with at 3.3.
Senator O'SULLIVAN: So, when one refers to the top of page 8, 'Preparation of a report would mostly be done by'—and it refers, obviously, to staff identification—you are talking about the annual report?
Ms O'Brien : No. It is the state of the system.
Prof. Triggs : We are talking about the snapshot report that I have referred to several times as a major piece of work throughout 2013, a sort of factual state of the nation report on asylum seekers and refugees.
Senator JACINTA COLLINS: Is that the one you referred to in your opening statement?
Prof. Triggs : It is. This took up a considerable amount of our working program through the policy team and the commission team throughout 2013, and that was completed towards the end of that year, and we are very happy to table a copy of that for you to have a look at.
Senator O'SULLIVAN: I will take you back to page 5, under 'Projects', a 10-year review of A last resort—and perhaps this question can go to Ms Raman. As you prepared this strategic document for—and I am assuming '13-14' refers to the financial year 2013-14—
Prof. Triggs : You are right.
Senator O'SULLIVAN: At what stage does that stop becoming an idea or a submission and become a decision to undertake those things in the strategic plan?
Ms Raman : As you can see, this is a draft plan. The final plan went to the commission in June.
Senator O'SULLIVAN: And, in June, a decision is taken by the commission to have a 10-year review of A last resort?
Ms Raman : It was part of the commission's work plan that there would be a 10-year review. It is referred to in the work plan.
Senator O'SULLIVAN: Is this the review? It results with this inquiry?
Ms Raman : The 10-year review, yes.
Senator O'SULLIVAN: This helps greatly, given our last passages of evidence. Can I put to you, Professor, based on what Ms Raman has just said, that, as at June 2013, you had made a decision to conduct this inquiry, the result of which is published in this report.
Prof. Triggs : No, that is a misunderstanding of the situation.
Senator O'SULLIVAN: I am in your hands.
Prof. Triggs : Do you have a question?
Senator O'SULLIVAN: I will just revisit: where it refers to the review, the 10-year review, is this—
Prof. Triggs : I am sorry. I cannot quite understand what question you are asking.
Senator O'SULLIVAN: Well, all the way through our exchange last time, and again here this morning, we were talking about when the decision was made for the commission to conduct this inquiry. You have indicated to me in evidence that this 10-year review of A last resort is what I am holding up in my hands—one and the same.
Ms O'Brien : Senator—
Senator O'SULLIVAN: I am sorry, Ms O'Brien, my questions are to Professor Triggs.
Ms O'Brien : I am the—
Senator O'SULLIVAN: Is this one and the same?
Prof. Triggs : The decision to hold an inquiry was made firmly in December, as all the documentation that we have given you demonstrates.
CHAIR: December of which year? That is a pretty simple question, I would have thought.
Ms O'Brien : December 2013. Sorry, if I can clarify any misunderstanding, the decision—
Senator O'SULLIVAN: No, Ms O'Brien, not on my part please. My question is clear. It is a sensible, reasonable question to the professor, and I am interested in the professor's answer.
Ms O'Brien : The decision is clear on the document. I can just draw your attention to the document.
Senator O'SULLIVAN: Professor Triggs, is this published inquiry the result of the intent to conduct a 10-year review of A last resort?
Prof. Triggs : I think I explained in my opening statement that this was a gradual evolving process of planning that any organisation would engage in. You have all of the documents that relate to that planning—an entirely proper planning process. In June we agreed a plan of work—
Senator O'SULLIVAN: June of?
Prof. Triggs : 2013. We agreed a plan of work for the following year. That is normal process. However, the intent at that time was to look at a 10-year review once earlier other agreed work had been done, including the snapshot report, once various other matters that were included in the very extensive work plan were completed, and subject to resource availability. It was not until December 2013 that a final decision was made by all of the commissioners on a decision to, if you like, upgrade from a review to a full inquiry.
CHAIR: That is obviously an area for further questioning, but we will suspend that there now.
Senator JACINTA COLLINS: I also have questions in relation to The forgotten children report, and indeed some other matters, but I might commence there. Perhaps I could offer Senator O'Sullivan a copy of the actual report, rather than the mega version that he seems to be parading before us.
CHAIR: That is very kind of you, but do not worry; Senator O'Sullivan is a big boy and he can get his own.
Senator JACINTA COLLINS: I am just not sure why he is confusing witnesses with a document other than the printed version.
Senator O'SULLIVAN: I get a bigger copy of the report which you have.
Senator JACINTA COLLINS: I know you have a bigger one, but I am not sure what the proof of that is.
CHAIR: I will not comment, except to say that you have used a minute of your time.
Senator JACINTA COLLINS: I am sure that you will be as generous with me as you have been with Senator O'Sullivan. Let's move on to some substantive matters. Professor Triggs, you may have covered this previously, but I think it would be helpful if we understood exactly when you provided a copy of the report—or was it in draft terms?—to the Attorney?
Prof. Triggs : It is normal process, in fact acquired process, that we provide a draft of the report to the Department of Immigration and to the Attorney. We provided that in early October. The normal process is that we give the department and the Attorney's office an opportunity to read the draft that we have worked on. They then respond with any comments that they might have and we then adjust the draft to take account of those comments and we produce a final report. That is then printed and given to both the Attorney and the minister for immigration, and we did that on 11 November. In effect, at least three to four weeks before that, both ministers had access to the draft, but not, of course, until 11 November did they have the concluded conversion that had taken into account the concerns expressed by the department of immigration.
Senator JACINTA COLLINS: You mentioned that early October is when the draft was first provided. Can you take on notice the precise date for me?
Prof. Triggs : I will take on notice the exact date.
Senator JACINTA COLLINS: If it can be provided during the course of the morning, that would be useful. Let's move on to some—
Prof. Triggs : Can I answer that? We in fact do have the data. It was on 3 October 2014 that we provided the preliminary findings to the department of immigration.
Senator JACINTA COLLINS: So preliminary findings versus draft report or is it the same thing?
Prof. Triggs : The preliminary findings are designed to give the department and the Attorney's office an opportunity to comment on that draft. They did not receive the final printed version until 11 November. There was well over a month—about five weeks—before the final version was in their hands in printed form.
Senator JACINTA COLLINS: Apart from providing the first draft or, as you have said, the preliminary findings—I think we are talking about the same thing—
Prof. Triggs : Yes.
Senator JACINTA COLLINS: Were there any other iterations?
Ms O'Brien : Perhaps I could clarify that response. On 3 October we provided our preliminary findings to the department. We gave them an opportunity to say what they would like in respect to the preliminary findings. They provided us with that feedback. That was taken—
Senator JACINTA COLLINS: This is the department of immigration?
Ms O'Brien : Yes. That was taken on board and an amended report was prepared, taking into account the comments of the department. In that amended report, we also include our recommendations and provide that back to the department to say, 'What action are you proposing to take in respect to those recommendations?' The only difference between the 31 October, when the report was amended to take into account the department's feedback and the final report, is that we include what the department or the minister say they will do in response to our recommendations. It is part of our strategy obligations that we have to say, 'These are the findings and the recommendations we made. We've put them to the department and this is the action they say they will be taking.' That final report is provided to the Attorney.
Senator JACINTA COLLINS: I should clarify: I have not had an opportunity to review the evidence before Immigration yesterday. I am not sure the extent to which you are aware of the discussion that occurred that the chair referred to yesterday. Are you familiar with that evidence?
Prof. Triggs : I would not say I am familiar with it. I am aware that evidence was given, but I have not seen a transcript and I did not hear the evidence when it was given.
CHAIR: You would have had someone from your office listening to it, surely?
Prof. Triggs : Yes, I have had a briefing that dealt with some of the numbers, but it was a very brief briefing, if I may say that.
Senator JACINTA COLLINS: Bear with me also because I was not present yesterday, so I am probably less familiar with it than you are. From what I can gather from yesterday's evidence and from the report itself, you received a response from the department of immigration, you made some adjustments to the draft report, you also received from Immigration the actions that they proposed to take in response to your findings, and they are published in the report. Can we have some sense of the changes or adjustments that were made to the draft report to accommodate the department of immigration's concerns?
Prof. Triggs : There were a number of broad adjustments that we took account of, but also some specific issues that they raised that we did make amendments to in the final report. Again, Ms O'Brien will give you an example of some of those.
Ms O'Brien : We took on board the specific comments made by the department and amended the report accordingly.
Senator JACINTA COLLINS: Ms O'Brien, just while we are referring to 'the department', there are two departments here, so I think we need to be clear.
Ms O'Brien : The department of immigration.
Senator JACINTA COLLINS: At the moment, I am simply asking questions in relation to the department of immigration. I will get to the Attorney-General's Department in a moment.
Ms O'Brien : And that is what I was referring to also. Any specific issues that were raised we took on board, and the report was amended accordingly. There were some general observations made but, so far as they were not particularised, we were not able to pick them up and make specific amendments in relation to those general, perhaps more thematic concerns. But all of the specific issues raised by the department, I understand, were picked up and amended, and the report was amended accordingly.
Senator JACINTA COLLINS: Is there any reason we could not have those amendments made available to us?
Ms O'Brien : I might have to take that on notice.
Senator JACINTA COLLINS: I understand you may have to consider matters such as public interest immunity in responding to such matters, which the Attorney seems quite satisfied about in respect of other matters. But I am happy for you to do so.
Ms O'Brien : Thank you.
Senator JACINTA COLLINS: So adjustments were made to the draft. A final copy of the report was provided to both departments on 11 November. What precisely does that final copy of the report include from Immigration? Is it simply their response to the findings that are published with the report, or is it also expression of their more thematic concerns?
Ms O'Brien : No. Our obligation in terms of our final report to the Attorney is to identify exactly what the department has said in response to our recommendations—what action, if any, they propose to take in response to our recommendations. However, in light of procedural fairness obligations, we have annexed the more thematic concerns the department had in relation to the report generally so that that is a matter of public record as well.
Senator JACINTA COLLINS: So that is their thematic concerns, but from the report itself I could not backtrack and work out the actual amendments, could I?
Ms O'Brien : No, you could not. I could give you a particular example, but I could not address every example today.
Senator JACINTA COLLINS: Could I also ask that, in taking that on notice, you provide some more prompt consideration as to whether you might be able to make that available to the committee than in the normal question on notice type process.
Ms O'Brien : Yes.
Senator JACINTA COLLINS: I think that, given the public interest in what has happened in the total iteration of this report, it would be helpful to understand.
Ms O'Brien : Yes.
Senator JACINTA COLLINS: But again you will probably want to listen to what occurred yesterday beforehand as well. Let us, then, go to the Attorney-General's Department response when they received the draft report or preliminary findings on 3 October.
Prof. Triggs : We did not have any response.
Senator JACINTA COLLINS: No response at all?
Prof. Triggs : Not that I am aware of.
Senator JACINTA COLLINS: Is that usual?
Prof. Triggs : I am not able to comment on how usual that is. I can only stick to the fact that we received no response that I am aware of.
Ms O'Brien : It would not have been usual. The findings would be in relation to conduct of the department of immigration and the minister for immigration, so the procedural fairness obligation would be to get the response of the department and minister for immigration. The report is then provided to the Attorney to be tabled in parliament.
Senator JACINTA COLLINS: But the Attorney was provided with the draft findings on 3 October—yes?
Ms O'Brien : I would have to take that on notice.
Ms Raman : I am just getting that checked.
Ms O'Brien : It is common practice that you provide the draft report and the findings to the person or the entity against whom the findings are made.
Senator JACINTA COLLINS: I understand the procedural fairness aspect, but the evidence you gave earlier—correct me if I misheard—was that the draft report was provided to both Immigration and Attorney's.
Ms O'Brien : We sent it to the Attorney's. I am not sure whether we asked for their—
Ms Raman : We did on 3 October—I have just had confirmation—as a matter of courtesy to the Attorney as well.
Senator JACINTA COLLINS: So you were not necessarily expecting a response from the Attorney-General's Department.
Ms O'Brien : I would not have thought so.
Ms Raman : No, we were not.
Senator JACINTA COLLINS: So none of the findings in the report relate to Attorney's, as opposed to Immigration.
Ms O'Brien : That is right.
Ms Raman : That is correct.
Senator JACINTA COLLINS: So there was no response from the Attorney's to the draft. Was there any response when the final report was provided?
Prof. Triggs : Not to my knowledge.
Senator JACINTA COLLINS: Professor Triggs, could you detail for me all meetings you have had since 3 October with either the Attorney or officers of the Attorney-General's Department.
CHAIR: 3 October which year?
Senator JACINTA COLLINS: Last year, Chair.
Prof. Triggs : I will have to take that on notice, because I would want to be absolutely precise in answering the question, but I think, from memory, infrequently; although we did have dealings with the office to arrange for the Attorney's speech at the Human Rights Awards on 10 December. So, if you are concerned about that period, we would in particular have been responding to the usual queries with the Attorney's staff with regard to the speech and the timing et cetera.
Senator JACINTA COLLINS: So the problem at the moment is partly because of how general my question is in terms of any officer of the department. Is that correct?
Prof. Triggs : I think it is very general. I really would need to take it on notice to be able to look at exactly which officers I had spoken to and how often those meetings took place, but it was certainly very infrequent in relation to the Attorney at that time.
Senator JACINTA COLLINS: Let's start at the top then. How many meetings have you have with the secretary?
CHAIR: The Secretary of?
Senator JACINTA COLLINS: A-GD.
Prof. Triggs : I would have to take it on notice. I think there might have been one, but that is all I can recall. I really would have to look at my documentation to see, in that particular period, if I met with the secretary.
Senator JACINTA COLLINS: Let's start on the one that you do recall. When was that?
Prof. Triggs : Again, I cannot give you an exact date. I do recall meeting with the then secretary in my office—
Senator JACINTA COLLINS: In Sydney?
Prof. Triggs : In Sydney. He not infrequently comes through Sydney and he would, when he could, ask if he could see me, and he would drop in and we would have a chat, often at the end of the day, and he would go on.
Senator JACINTA COLLINS: Do you recall the purpose of that meeting?
Prof. Triggs : The purpose of my meetings with the secretary—
Senator JACINTA COLLINS: No, not generally—this particular meeting that you do recall.
Prof. Triggs : I think it was really just the general operations and running of the commission—mainly, of course, budgetary concerns, because we were receiving efficiency dividends but we were also concerned about the way the budget was travelling. I would almost invariably speak to him on that question. Are you interested in any meetings with the secretary between October and now or—
Prof. Triggs : Oh, sorry—
Senator JACINTA COLLINS: Sorry, I said 'since October'.
Prof. Triggs : I do of course remember a meeting with the recently appointed secretary of the department, and that was I think about four weeks ago.
Senator JACINTA COLLINS: So this is a different meeting to the one you were just referring to?
Prof. Triggs : Yes. I was describing one with the former secretary in my office before Christmas; but now I realise that you are interested in up to today, I have had only one visit from the current secretary, and that was about a month ago.
Senator JACINTA COLLINS: And what was the purpose of that meeting?
Prof. Triggs : The purpose of the meeting was to deliver a request from the Attorney.
Senator JACINTA COLLINS: And what was the nature of that request?
Prof. Triggs : The nature of that request was to ask for my resignation.
Senator JACINTA COLLINS: Chair, you have asked me to conclude my questioning. I obviously have very serious questions—
Senator O'SULLIVAN: As do I.
Senator JACINTA COLLINS: about the issue that Professor Triggs has just raised. Is there any scope for us to continue what I think, as Senator O'Sullivan has just said, is a very important issue, or do you propose—
CHAIR: No, Senator O'Sullivan says that he has very important issues, and the answer is no, Senator Collins.
Senator JACINTA COLLINS: We will come back to it.
CHAIR: I will now go to Senator Reynolds and then to Senator Bilyk.
Senator HANSON-YOUNG: Excuse me, Chair, the coalition have already had one 15-minute period, which did spill over.
CHAIR: Okay, well let's make this clear once and for all. I try to be fair in this committee. This is a hearing which clearly has attracted a lot of attention. Therefore, I intend to be even fairer. I work on the basis that in the Senate there are 33 government senators, there are 25 Labor senators and there are 10 Greens senators. Now, on a roughly proportionate basis, that means the government will get two goes, the Labor Party will get two goes, and the Greens, representing a small section of the Australian community, will get one go. I think I cannot be fairer to everybody than that, and that is what is going to happen.
Senator HANSON-YOUNG: I think that is absolutely ridiculous.
Senator WRIGHT: Chair, could I ask you to clarify something then please? My understanding—and I thought I was informed when I commenced in the Senate—was that one of the most important roles of the estimates hearings was to enable all senators to hold the government to account. And it was coalition senators who put this to me. I was told that it was indeed a function that was particularly able to be exercised by opposition, crossbenchers and Independent senators who do not otherwise have an opportunity to gain information about the workings of government that government senators may have the opportunity to do. From that point of view, this is the first time that I have been advised that a chair would be saying that we are going to use a numerical proportion in terms of the questioning. That is the first part of my question. The second part is: my understanding is that under the standing order that you refer to, while there are questions to be asked we will continue to ask those questions. So you may end up with a situation where, if there are still questions to be asked, ultimately there will be lots and lots more from those who have not had an opportunity earlier in the day. So I would suggest that it would be fairer to do it in a regular rotation.
Senator JACINTA COLLINS: On the point of order, could I add that I think this proportional break-up that you are referring to is not consistent with some of your comments previously on the record about the nature of estimates.
CHAIR: Senator Wright, you are correct in connection with the last part. If we finish the day and no other senators have questions, then the Greens can spend the rest of the day doing it. That part is correct—
Senator WRIGHT: Or any senator.
CHAIR: I do not who told you—it certainly was not me—
Senator WRIGHT: It was actually Senator Brandis who used to make that point.
CHAIR: Please do not interrupt while I am speaking. Show a little bit of courtesy—
Senator WRIGHT: You are very courteous, I know.
CHAIR: I am very sensitive when I am being attacked.
Senator JACINTA COLLINS: Let me defend you, Chair!
CHAIR: You promised you would, Senator Collins, but you have not done much so far!
Senator JACINTA COLLINS: I was going to defend you from yourself, actually.
Senator WRIGHT: I was not attacking; I was clarifying. It was Senator Brandis who told me that.
CHAIR: Please, Senator Wright. Do you want me to deal with your point of order or do we want to have a chat? We can chat all day if you like, it is just your time that we are losing—
Senator WRIGHT: You asked who told me that and I told you it was Senator Brandis who made that point.
CHAIR: Senator Brandis is not me. I happen to chair this committee and not Senator Brandis. That is my ruling and it has been a consistent ruling that I have made in these committees—where there is a shortage of time and a lot of interest. When we are dealing with things that do not attract such attention then I am very relaxed to go along with the flow. But on issues like this, that is the ruling I have made before and it is the ruling I make again today.
Senator WRIGHT: Sorry, I do not mean to be difficult, but I am really trying to understand because this is a change of practice from my previous experience. I want to understand: how do you apply that numerical proportion view to Independent senators where there is one in a chamber of 76? How do you allocate the time for them?
CHAIR: I am happy to explain this all day, Senator Wright.
Senator WRIGHT: I would like to understand the logic.
CHAIR: As anyone who attends this committee regularly knows, I try to accommodate the Independents. I have to say that all of the Independents understand the situation and none of them make unreasonable requests. With the cooperation of the committee as a whole, we fit them in where appropriate. But none of the Independents have ever sought to have a lengthy period of time on any particular issue. They come in, ask a question, and do not involve—
Senator WRIGHT: They behave themselves, do they?
CHAIR: They do not come in and try to make political statements and get media coverage and say the right buzz words that attract the ABC—
Senator WRIGHT: So that is the basis on which you allow questions or do not allow questions?
CHAIR: I reiterate, in case you are slow of hearing: today we will be dealing with a government, an opposition, a government, an opposition, a Greens, and if any of the Independents want to ask questions I will work out with them where I can fit them in fairly. What I want to do in this committee is be fair to all senators. You are quite right that these estimates committees are for all senators to question the government. The Labor Party often make the point that government senators should not be included. As I say, in the government we do question our ministers. We are not like the Labor Party—
Senator JACINTA COLLINS: Sorry, Chair, how did we get to that point?
CHAIR: You seem to think that because we are government senators we do not want to attack and question—
Senator WONG: Excuse me, could we get going?
CHAIR: Sorry, Senator Wright has raised a question.
Senator WONG: You are still talking about the point of order. I just wondered if at some point we could—
CHAIR: Senator Wong, do you have a point of order?
Senator WONG: I just wondered, as a—
CHAIR: Do you have a point of order?
Senator WONG: I am making a comment. I am—
CHAIR: You do not make comments in my—you do not make comments.
Senator WONG: making a request.
CHAIR: If you have a point of order I will deal with it, but I am dealing with Senator Wright's at the moment. Senator Wright, I hope that is clear. If we all know the rules we can get on and have the maximum time for questioning.
Senator HANSON-YOUNG: Rule by iron fist!
CHAIR: Senator Reynolds, we will move to you.
Senator REYNOLDS: I have a number of questions, but I will defer my 15 minutes to my colleague Senator O'Sullivan.
CHAIR: That is acceptable.
Senator O'SULLIVAN: Thank you for that.
Senator Brandis: Senator O'Sullivan, through you Mr Chairman, I wonder if I could crave the indulgence of the committee.
CHAIR: Hold on, Senator Brandis. If you are doing that I will stop the clock, because clearly we are going to have to be very precise.
Senator Brandis: I know I am not answering a question, but a question was asked of one of the commission witnesses: whether a response from the Attorney-General's office to the report had been received? The answer was no. That evidence is not correct. A response from me to the human rights commission—the letter would have been to the President; I am having it fetched—was sent on 11 February.
CHAIR: In fairness to the witness, I should put that to the witness to see if they wanted to comment.
Ms Raman : I will have to take that on notice; I am not aware of that letter.
Senator Brandis: I am, because I signed it. I have asked for it to be fetched. When it is available immediately I will table it.
Senator WONG: After the report was printed.
Senator JACINTA COLLINS: After the report was printed.
Senator BILYK: When was the report printed?
Prof. Triggs : 11 November.
Senator JACINTA COLLINS: Timely as always, Senator Brandis.
Senator Brandis: Senator Bilyk, I heard your intervention. The practice of governments is to respond to reports after they have been considered, not upon their receipt.
Senator O'SULLIVAN: My read on the material that has been provided under notice suggests—I want your comment one more time, Professor—that there is an evolution from a review, and it would seem that at some stage a deliberate decision has been made to take what was to be a review and turn it into an inquiry. Do you accept the proposition that this evolution occurred, meaning that an inquiry was larger in scope—a bigger plan—than the reference to a review earlier in the year?
Prof. Triggs : As President and along with the commissioners we decided in December that we would hold a formal inquiry. That is clear on all the documentary evidence you have received.
Senator O'SULLIVAN: Can I direct you to a document Commission meeting papers of 3 December. There is a table at the top of page 3 and reference to a 10-year review of a last resort.
Ms O'Brien : What was the date of the Commission meeting paper?
Senator O'SULLIVAN: It is a meeting paper dated 3 December 2013.
Prof. Triggs : We have it.
Senator O'SULLIVAN: On page 3 there is a table. It makes reference there that 'the project plan for this project has been revised in light of the policy approach of the new government. If this project is to be done it requires a more formal use of the commission's inquiry function and an increase in staff and resourcing.' Would you accept that that, at the very least, is an evolution from a simpler form of review to what we now commonly refer to as the inquiry?
Prof. Triggs : Yes. As I said in my opening statement, this was an evolutionary process. While originally described as a review, by December we were looking at an inquiry.
Senator O'SULLIVAN: Who revised the project plan?
Ms Raman : A staff member would have revised the project plan.
Senator O'SULLIVAN: Can you tell me the name of the staff member who revised the project plan, please?
Ms Raman : I would think the final version would have been cleared by our Director of Policy, Mr Darren Dick.
Senator O'SULLIVAN: Professor, do you have any independent recollection of Mr Dick talking to you about this revision, elevating this from a review to an inquiry?
Prof. Triggs : The process by which this occurred is all reflected in the documents that we have provided to you. You will see on page 5 of the minutes of a commission meeting that Darren Dick provided an update on activities and we then discussed, in the light of his update, the project plan.
Senator O'SULLIVAN: So, prior to that, you had not had any conversations with Mr Dick related to his development of that recommendation?
Prof. Triggs : I did not say that.
Senator O'SULLIVAN: Well, let me go back. I was trying to allow a gentle evolution there. I will go back to my question, and it is a clear question. It is an unambiguous question. Prior to this document being submitted, did you have any conversations with Mr Dick about his considerations of revising the project status from a review to an inquiry?
Prof. Triggs : I have no specific memory of that conversation. As I say, he briefed the commissioners and me at the meeting, as reported in our documents of the commission meeting, as evidenced in the documentation that you have received.
Senator O'SULLIVAN: Sure. So whilst you and the commissions could give consideration to Mr Dick's advice, and it was within your scope to either accept or reject it, it is fair to say that Mr Dick revised the project plan and formed the view that the project required a more formal use of the commission's inquiry function?
Prof. Triggs : That is not fair to say at all.
Senator O'SULLIVAN: Okay. Would you like to put me straight on that issue?
Prof. Triggs : As I say, the documents make it quite clear that Mr Dick's function was to provide an update on activities across the policy range and the various projects that the commission was undertaking through commissioners and other members of staff.
Senator O'SULLIVAN: Let me phrase it differently, then. Do you have any knowledge within the scope of your memory whether Mr Dick did or did not consult anyone else in the commission prior to him determining that he would recommend that the review required a more formal use of the commission's inquiry function? That is a very simple question. You either do or you do not have knowledge of Mr Dick consulting anybody.
Prof. Triggs : Mr Dick consulted the commissioners and me by reporting at that commission meeting about various activities, and one of the elements of his report was to suggest, for the consideration of the commissioners and me, that we needed to establish an inquiry because of the additional powers that that would give the commission and that I could exercise that power as president under the statute, the Australian Human Rights Commission Act.
Senator O'SULLIVAN: Thank you for that answer, but it was non-responsive to my question.
Senator Bilyk interjecting—
CHAIR: Senator Wong, I have warned you once. Interjections will not be—
Senator WONG: That was not me.
Senator BILYK: That was me!
CHAIR: Well, Senator Bilyk, I warn you too. Interjections will not be tolerated today.
Senator WONG: He is always happy to point the finger at me!
Senator O'SULLIVAN: Professor Triggs, let me set the time trigger. Prior to Mr Dick providing you and the other commissioners with advice that the need to revise the project had occurred, prior to the first time his lips to your ears told you that it was recommended that the project required a more formal use of the commission's inquiry function, do you have—within the scope of your knowledge—any knowledge of whether Mr Dick consulted anybody? You have told us that he certainly did not consult you, and I accept that; that is a matter of record now.
Prof. Triggs : I did not say that, Senator O'Sullivan. Please do not put words in my mouth that were not there.
Senator O'SULLIVAN: So did Mr Dick consult you prior to making the recommendation to the commissioners that the project required a more formal use of the commission's inquiry function?
Prof. Triggs : Not that I recall.
Senator O'SULLIVAN: Right. So we have established that he did not.
Prof. Triggs : No, we have not established that. We have simply said that I—
Senator O'SULLIVAN: Well, within your recollection.
Prof. Triggs : Can I please—if you have asked the question, I would very much like to have the opportunity to answer it—
Senator O'SULLIVAN: Sure.
Prof. Triggs : in a calm and courteous way rather than with constant interruptions. Mr Dick's obligation was to advise the commissioners and me, and he did so. I have no memory of him consulting, and I would have no idea whom he might have consulted, in the days that led up to that meeting. But his job is to advise the commission and me, and he did so.
Senator O'SULLIVAN: Okay. Thank you for that. Now, going back to my reference, Mr Dick said 'in light of the policy approach of the new government'. Would you be able to elaborate on that for me?
Prof. Triggs : The underlying thinking in relation to the policy was that, as a consequence of Operation Sovereign Borders, there was a very considerable tightening of restrictions on the release of information. The commission has worked very well with the department of immigration for many, many years, including the periods that we are discussing; and, as part of those relations with the department, the department provides us with reasonably regular updates on the numbers of children held in detention, the periods for which they are held, those that have disabilities and those that have particular mental health or other problems. We would have a reasonable relationship with the department so that, if we were advised, for example, of an assault, we would immediately advise the department and so on. So it was a working relationship. But, once Operation Sovereign Borders got underway, it was clear that information was not as readily available, and so it became part of the policy considerations that we might use the inquiry power in order to get accurate and up-to-date information about the condition of the children.
Senator O'SULLIVAN: Would you agree that, in all of the time that we have had together—last November and again today; it has only been a short time since the start—you have never mentioned that previously?
Prof. Triggs : I do not know whether that has been mentioned. I suspect it has not. It has been mentioned by me now.
Senator O'SULLIVAN: Yes, I accept that. So the trigger for taking a review and turning it into a full-blown inquiry was promoted by the policy approach of the new government, which was the policy of sovereign borders?
Prof. Triggs : No, that is not the case. As I said in my opening statement, there were a multitude of reasons that led to the final decision in December to hold an inquiry and I listed all of those factors in my opening address.
Senator O'SULLIVAN: Take yourself back to 3 December, when Mr Dick made a recommendation to the commissioners that the project required a more formal use of the inquiry powers because of or 'in light of—let me not verbal Mr Dick—the policy approach of the new government'. You have just indicated—and your answer may not have been exhaustive—that 'in light of the policy approach' had to do with Operation Sovereign Borders, which in turn you felt was inhibiting the flow of information from the government to the commission. You elaborate for as long as you like if that does not capture the position.
Prof. Triggs : I agree.
Senator O'SULLIVAN: So you do agree?
Prof. Triggs : I just said that.
Senator O'SULLIVAN: Just so there is no confusion, because we often go around a bit: the decision to elevate from a review to a full inquiry to use the commission's inquiry function was in response to the government's policy of sovereign borders?
Prof. Triggs : No, that is not an accurate statement.
Senator O'SULLIVAN: One more time, Professor Triggs. The words were 'in light of the policy approach of the new government'. Let me not restrict you. I will take my pen. I will write faithfully everything you say. What was the policy approach of the new government that is referred to in that table? I am ready to go. What is the policy approach of the new government that promoted this transition?
Prof. Triggs : As Mr Dick had suggested, the policy approach of the government, because of the restrictions on information, had prompted his recommendation to the commission that it might be necessary to use the more extensive powers under the inquiry.
Committee member interjecting—
Senator O'Sullivan interjecting—
CHAIR: Please, Senator O'Sullivan, I am running this committee, not the interjectors from down the end. Just to make it clear: I set the clock for 14 minutes to allow people about a minute to finish the question and get the answer. I try to be fair in allowing that particular question and answer to be done. Senator O'Sullivan, you have now another 30 seconds.
Senator O'SULLIVAN: Thank you. As at 3rd December 2013, Professor Triggs, had your commission experienced a ceasing of the delivery or sharing of information by then? Had you established that that was having an impact on the commission, that information previously provided you by the department of immigration was now not being provided to you?
Prof. Triggs : That is my understanding, yes.
Senator O'SULLIVAN: Okay. Could you tell me what areas of information had once been provided that were now no longer provided?
Prof. Triggs : I would be very happy to provide you with that information on notice.
Senator O'SULLIVAN: Okay. Do you have any independent thought on what this constriction was? Do you yourself remember thinking that the landscape had changed?
Prof. Triggs : As I said a moment ago, I will take that on notice and consult staff to see the extent to which they were observing a failure to provide information that we had traditionally been receiving.
CHAIR: We might have to leave it there, Senator O'Sullivan. You can obviously come back later on. Senator Bilyk.
Senator BILYK: I am happy to let Senator Wong take a turn at the moment.
Senator WONG: Professor Triggs, if I could return you to the meeting about which you gave evidence when Senator Collins was asking questions and you indicated you had a meeting with Mr Moraitis some four weeks ago. You said the purpose of the meeting was to deliver a request from the Attorney-General for your resignation. I want to take you back to that meeting and first ask you: whereabouts was that?
Prof. Triggs : It was in my office in Sydney.
Senator WONG: How were you advised that the meeting would occur?
Prof. Triggs : I believe that my assistant received a phone call to ask if I would be available to meet with Mr Moraitis on, in fact it was, we believe, the 3rd of February.
Senator WONG: You received the phone call on the 3rd or the meeting occurred on the 3rd?
Prof. Triggs : The meeting occurred on the 3rd. I think the phone call was a day before.
Senator WONG: Were you advised at that time of the purpose of the meeting?
Prof. Triggs : No, I was not.
Senator WONG: I think you said this was the first time you had a meeting with him?
Prof. Triggs : No, in fact that is not quite true. On 29 January, shortly after Mr Moraitis had started his new position, I did make a courtesy visit to his office in Canberra. That was 29 January—it was very informal and there was no particular agenda. It was a relatively short courtesy visit. In fact, given the relatively recent nature of that courtesy visit on 29 January, I was of course a little surprised to have a meeting with him on 3 February.
Senator WONG: At that stage, prior to the meeting commencing, did you have any knowledge of what the purpose of the meeting was?
Prof. Triggs : No. My administrative assistant was not told the purpose of the meeting, although I believe she asked.
Senator WONG: About how long did the meeting last?
Prof. Triggs : It lasted for about an hour.
Senator WONG: Can you tell me what Mr Moraitis said to you in that meeting?
Prof. Triggs : With respect, I feel that the content of that discussion should be a question for the Attorney.
Senator Brandis: I thank Professor Triggs for that but, to help, given that Professor Triggs has told the committee the substance of the meeting rather than the detail I am perfectly happy for both her and Mr Moraitis to be asked and to respond to questions from you or other senators about that meeting.
Senator WONG: So I am going to ask you some questions, Professor Triggs. Can you tell me what was said by Mr Moraitis to you at that meeting.
Prof. Triggs : He said he had been asked to deliver the message from the Attorney that he required my resignation.
Senator WONG: Did he explain why?
Prof. Triggs : No.
Senator WONG: Did you ask why?
Prof. Triggs : Yes. He told me that no reason had been given. I said 'What is the reason for this request?', and I believe that he said he had no detail as to the basis for it.
Senator WONG: What else was said in the meeting?
Prof. Triggs : I gave him my answer and I explained why I gave the answer.
Senator WONG: What was your answer?
Prof. Triggs : My answer was that I have a five-year statutory position which is designed for the President of the Human Rights Commission specifically to avoid political interference in the exercise of my tasks under the Australian Human Rights Commission Act.
Senator WONG: Did the secretary indicate that this was a personal request from the Attorney?
Prof. Triggs : He did.
Senator WONG: Was the phrase 'required your resignation' used?
Prof. Triggs : I do not recall if the word 'required' was used but I do know that my resignation was asked for.
Senator WONG: You have referenced the reason for the five-year term, which in part, as you identify, is to avoid political interference. Was there any discussion in that meeting of a perception of political interference?
Prof. Triggs : No, we did not discuss that—I simply reiterated that I have a five-year position that is deliberately protected by statute so that I would not be vulnerable to a request for my resignation in light, in this case, of it being just a few days before the release of the report into the forgotten children.
Senator WONG: In that meeting did Mr Moraitis indicate to you that there would be some other opportunity available to you if you resigned?
Prof. Triggs : He did.
Senator WONG: What were the words used?
Prof. Triggs : I do not recall the precise words but I know that he said that I would be offered other work with the government. I do not know that he used the word, but it would be in some sort of advisory capacity that would be relevant to my expertise as an international lawyer.
Senator WONG: What did you understand him to be suggesting?
CHAIR: I guess that is a matter for Professor Triggs to answer if she wants to.
Senator WONG: It is very similar to many questions Senator O'Sullivan has put to the witness. Professor Triggs, answer it as you see fit.
Prof. Triggs : I understood him to suggest that, because I had particular experience and skills in other aspects of international law, those skills could be used by government for contemporary legal problems and that were I to agree to resign I would have the opportunity to work in those other areas.
CHAIR: That is your understanding of what was said—not what was said to you.
Prof. Triggs : It was definitely said to me that an offer would be made for me to work for the government in areas of my expertise.
Senator WONG: Were any grounds for the request, direction or requirement for your resignation indicated?
Prof. Triggs : No, none at all.
Senator WONG: Was there any discussion of the forgotten children inquiry?
Prof. Triggs : I do not recall that we discussed that in particular, although obviously I drew my own conclusions.
Senator WONG: Was there any discussion of the Prime Minister's comments about you?
Prof. Triggs : No, and I am not sure about the timing, to be perfectly honest. It might have been that that comment by the Prime Minister was after, but frankly I have forgotten the chronology. It was after, I am told, so there would have been no discussion then.
Senator JACINTA COLLINS: Which comment by the Prime Minister?
Prof. Triggs : The Prime Minister made comments both in parliament and, I believe, to the media in which he challenged the wisdom of the commission in holding the inquiry and made other remarks that were obviously indicating that he was extremely unhappy with the report in relation to the children in detention. And I think he went further than that.
Senator JACINTA COLLINS: But on another occasion, if I recall correctly, he also said that you were a decent person. I think the Attorney—although we will come to it later—said similar things as well. That is why I am just trying to clarify which comment we are referring to here.
Prof. Triggs : Yes, there were various comments made by the Prime Minister and the Attorney, initially of a rather flattering nature but ultimately ones that did not respect my office or the work of the commission.
Senator WONG: Were you shocked by the proposition?
Prof. Triggs : I was deeply shocked.
Senator WONG: Can you tell us why?
Prof. Triggs : I have been a practising lawyer for 46 years. So far as I am aware, I have never had any suggestion of impropriety or work that was not of the appropriate standard. My career has been a very fortunate one as I have grown in the law and been able to practise law in various ways, whether in commercial legal practice, in the academic world running a research institute or as dean of a faculty. Throughout all of those 46 years, I have never ever had a suggestion that my work was not of an appropriate standard. Indeed I have only ever had remarks that confirmed the quality of my work. So, not knowing the agenda of the secretary's meeting with me on 3 February, I was of course both surprised and very shocked that my resignation should be asked for. Obviously it is the first time in my career that anyone has ever asked for my resignation. That was obviously a very difficult thing for me to deal with.
Senator WONG: Was the request for your resignation early in the meeting?
Prof. Triggs : It was virtually immediately. There were a couple of minutes of courtesies and then he really went straight to the point.
Senator WONG: As you have said in evidence, you declined. Was that immediate, your response?
Prof. Triggs : Yes.
Senator WONG: What reason did you give?
Prof. Triggs : The reason I gave for declining was that I have a statutory position that is explicitly legislated to protect the independence of the commission and, most importantly, the independence of the president. That was my fundamental reason. I did not really need to elaborate on that to any degree.
Senator WONG: Does that remain your view—that a resignation at the Attorney's request would impinge the independence of the commission?
Prof. Triggs : Yes, I think it would. It is far more than me that is at risk here. It is the integrity and future independence of a very important statutory commission in Australia—one that has an A status within the Paris principles in the United Nations. Were that status to be reduced in any way—that independence to be threatened—that would not only threaten the very important role that we play in Australia but it would threaten the capacity to perform at the A status level within the United Nations system and regionally.
Senator WONG: You have met the Attorney on a number of occasions, I assume.
Prof. Triggs : I have, yes.
Senator WONG: On any of those occasions prior to Mr Moraitis indicating to you that the Attorney required your resignation, had the Attorney expressed such views to you?
Prof. Triggs : Never. Indeed, in his speech on 10 December, he had been very generous in commending the work of the commission, the work of the commissioners within the commission and me personally. We were all very gratified indeed, firstly, that the Attorney had come the event and, secondly, that he had spoken so warmly of the work of the commission and of me.
CHAIR: The speech was prepared for him, though, wasn't it?
Prof. Triggs : It was not.
CHAIR: That was meant to be light comic relief!
Senator Brandis: They were remarks that I made extemporaneously.
Senator WONG: I am sorry, Professor Triggs, that so much that is uncharitable is being said about you. Has the Attorney subsequently expressed the same view that Mr Moraitis expressed to you?
Prof. Triggs : No.
Senator WONG: Have you had any conversations with the Attorney about this matter?
Prof. Triggs : No.
Senator WONG: I want to turn now to the phrase you used—I am sorry, but I do not know that I wrote it down—which was 'some other opportunity', I think. I am just trying to get the sequence here. After pleasantries, Mr Moraitis says to you, 'I am here because the Attorney requires your resignation—
Prof. Triggs : Or, 'The Attorney would like your resignation.' I do not remember the exact phrase.
Senator WONG: You say no. You indicate why. At that point in the discussion, is there an indication of other opportunities?
Prof. Triggs : I think it was very early on. In other words, it was raised as being something that the secretary was aware was being offered.
Senator WONG: Were the two linked in the conversation?
Prof. Triggs : Yes, definitely.
Senator WONG: I want to be very clear because this is a very serious allegation. Is it that your resignation was sought and it was linked to the offer of some unspecified further work with the Commonwealth?
Prof. Triggs : Yes. There is no doubt in my mind that the two were connected.
Senator WONG: Did you explore that? Was there any more detail given about what other work would be offered?
Prof. Triggs : No. I rejected it out of hand. I thought it was a disgraceful proposal.
Senator WONG: Can you tell me why?
Prof. Triggs : Because I have a five-year statutory protection. To suggest that I should, in the light of the political environment and the concerns about the inquiry, quietly step down and take another position that might reflect my skills I thought was an entirely inappropriate offer to make to someone who has a position that is designed to prevent that kind of proposal.
Senator WONG: Did you understand it to be an inducement?
Prof. Triggs : I prefer not to use that term, especially as it is a legal term of art. At that time, I would not have been thinking along those lines at all. But I certainly, in a layman's sense, saw it as a basis for motivation. It would be a reason that somebody might agree to resign their position—knowing that they would perhaps be secure in some other position. That was obviously running through my mind. But, again, for the reasons I have explained, the very idea of resigning would threaten the entire reputation and independence of the commission in a way which would have a dramatic effect not only on me but on all of the commission, particularly the place of the commission in the processes of human rights protection in Australia.
Senator WONG: Was it an upsetting meeting, Professor Triggs?
Prof. Triggs : It was upsetting, yes. I was certainly very shaken and very shocked.
Senator HANSON-YOUNG: Can I go to some of the specifics in relation to this report. One of the things that strikes me is how ironic the name of your report has become in recent weeks. The children who are written about in it seem to have been forgotten in the discussion about whether the commission should or should not have even commissioned the report. When you gave the draft report to the immigration department, was there any dispute over the findings—the figures on mental health, the self-harm figures or, indeed, the number of cases of abuse that have been documented?
Prof. Triggs : No. One of the reasons that the department would not be able to contest those figures was that those were departmental figures. In other words, to a very significant degree, the report relied on the department's figures rather than on anything we were able to ascertain for ourselves.
Senator HANSON-YOUNG: That is why you needed those powers to compel evidence, I imagine—to access that type of documentation and those statistics.
Prof. Triggs : That is right. To the extent that it was not easy to know about self-harm and attempted suicides, the exact range of assaults or the evidence in relation to the mental health of the children, we relied very heavily indeed on departmental figures. The availability of those figures was crucial to the inquiry.
Senator HANSON-YOUNG: There is a section of the report that goes to the case of mental health reporting and evidence given by Dr Peter Young, who was a senior mental health professional with IHMS and contracted by the department. In the report, the evidence that he gave your inquiry claimed that the department requested that the medical contractor withhold those mental health statistics and not report on the mental health of children in their quarterly reports. Did it shock you when that evidence was given to the inquiry?
Prof. Triggs : Yes. It was in an email. It was, of course, very shocking that somebody so senior who was providing, in his view, accurate information to the department should be asked to withdraw or withhold that information. But it does confirm the problem that we were having as time evolved—that we were not able to get entirely satisfactory levels of information or confirmation of the information that we were receiving.
Senator HANSON-YOUNG: The evidence provided in your report, as you point out, was based on departmental figures and information, which should not be surprising then to either the Attorney-General or, indeed, the immigration minister at the time. Would you categorise the reaction from the government to the report as shooting the messenger?
CHAIR: How would you categorise the report?
Prof. Triggs : A description of that kind was in the media. It is not really for me necessarily to make that judgement, but there is no doubt that my concern was that we had produced an even-handed and scientifically and medically creditable report. It is most disturbing to have the credibility of the commission's staff and me, personally, attacked when we were primarily concerned that the public should read the report. Now that that report is in the public arena, it is being read and it is having its effect. We are very pleased indeed that the public response has been as positive as it is has been.
Senator HANSON-YOUNG: Figures given yesterday during the estimates session in this room with the immigration department indicated that onshore 44 cases of abuse are being investigated involving children—
Prof. Triggs : Are you referring to sexual abuse?
Senator HANSON-YOUNG: Yes, sexual abuse. Did that figure of 44 surprise you.
Prof. Triggs : It did not surprise me, although it is going in an unfortunate direction—a despairingly worrying direction. We were aware from the departmental website and from our own interviews with the 1,200 or so children and their parents that allegations of sexual assault were being made. Of course we reported them to the department too but we were interested that, in addition to the matters that had been drawn to our attention that we had then brought to the attention of the department, the department itself had documented and understood that 33 different cases had been raised. I am not at all surprised that that number has now gone up to 44 and obviously it is a matter of increasing concern for the Australian public that the children are exposed to this level of abuse.
Senator HANSON-YOUNG: In addition to the 44 cases, this committee heard in evidence from the department yesterday that there are 19 cases on Nauru. I want to go to the question of being able to get evidence from the situation in Nauru, because in your report you have tabled the requests that you made to the department and those which were fulfilled and those which were not. Why was it that information on conditions and statistics inside the Nauru detention centre were not forthcoming?
Prof. Triggs : The department would not give us any information in relation to Nauru. They did that on the basis that in their view we do not have jurisdiction to consider the condition of the children on that island.
Senator HANSON-YOUNG: Did you beg to differ with the department over this particular point?
Prof. Triggs : Yes—we have begged to differ for a very long time. We are very clear about our jurisdiction and about the international responsibility of Australia extraterritorially for the acts over which it has effective control. In short, that is the basis of our jurisdiction in relation to the acts and practices of the Commonwealth. We have been, if you like, rock solid in our view that we have a jurisdiction to hear complaints from Nauru and to inquire into the conditions in relation to the children, which is what we did. We included a separate chapter in the report on Nauru, partly because it did raise different issues and also because we were not relying, as you point out, on departmental figures and we were relying on other sources of information.
Senator HANSON-YOUNG: Is that position that the commission has held in relation to Nauru something that has existed just under this current government, or has it been longer standing?
Prof. Triggs : I believe it is longstanding. I am wondering whether the director, Julie O'Brien, could elaborate on my answer.
Ms O'Brien : I will just clarify the issue of jurisdiction. The legal findings that we made in relation to Nauru were about acts or practices of the Commonwealth in Australia—so the sending of children in circumstances where they would inevitably be arbitrarily detained and the sending of children regardless of whether it would be in their best interests. In terms of the conditions of detention on Nauru, we expressed concerns based on information provided by doctors who had worked there, or witnesses who gave evidence, or submissions received. We did not actually exercise any of our commission powers in Nauru—we are not able to do that. We do have power to inquire, but the findings in this report were about acts or practices of the Commonwealth in Australia.
Senator HANSON-YOUNG: But even the Australian Commonwealth department's documents, which are here on Australian soil, were not provided to you by the current government?
Ms O’Brien : That is right. I understand that part of the argument was that it fell outside the terms of reference, and part of the argument was a jurisdictional issue. The commission is clear that our jurisdiction extends to any acts or practices of the Commonwealth in Australia.
Senator HANSON-YOUNG: Professor, overnight there has been the report of a 16-year-old girl who threw herself off a building a week after your report was released. This young girl had been in detention in Nauru and been transferred to Darwin temporarily. As we know, children are shipped back and forth from the island to the mainland. It strikes me that the findings in your report, and how damning it is that children are in an environment where they feel like they have no other choice but to take their own life, are still as relevant today as they were perhaps when you started this inquiry or, indeed, when you made the comments that the incarceration of children in terms of public policy has existed for over two decades. What do you believe this parliament should be doing with this report to avoid those scenarios?
Prof. Triggs : We have made, of course as you know, a number of recommendations. Possibly the most important of those recommendations is that all of the remaining children should be removed from closed detention, whether they are held in Australia or in Nauru. That is probably the most important of those recommendations. The other recommendation is, as you have indicated, this policy has been legislated—it has been on the books—now for 23 years. We think it is time that a full review of the implementation of this policy and its consequences should be undertaken in the hope that the recommendation would then be confirmed that the legislation should be repealed, or at least that aspect of the legislation should be repealed.
Senator HANSON-YOUNG: Was there any evidence given throughout your inquiry that the detention of children was useful?
Prof. Triggs : Not that I recall. It was precisely the reverse. Both the former minister, the Hon. Chris Bowen, and the then minister of the department of immigration, the Hon. Scott Morrison, each agreed under oath before the public hearings that detaining the children for lengthy periods was not a deterrent. To use the much used phrase: it did not stop the boats. That was very important from both former ministers that it was conceded or accepted that holding children for lengthy periods of time does not deter people smugglers or stop the boats.
Senator HANSON-YOUNG: Was there any evidence given by medical professionals about the long-term effects of detention on these children? Even though thousands of children have been held in detention over the last 23 years, as you point out, as part of successive government policy, it strikes me that, if somebody is so desperate to throw themselves off a building to end their life, that struggle does not stop just when they are released?
Prof. Triggs : Senator Hanson-Young, that is a vital point. Of course, we have had evidence from the various medical bodies, the psychiatric, the child psychiatrists, paediatricians and others that they are deeply concerned about the long-term consequences, even when those children are released. And we are now starting to get more evidence coming in from the profession that the profession is seeing the children who have now been released in their clinics, and they are deeply concerned at the ongoing trauma that these children are suffering. So I think that the legacy of the detention of children will be felt for a very long type to come.
Senator HANSON-YOUNG: That is the timer. We will obviously have some other questions for you. Chair, I am happy to pick up later.
CHAIR: Okay. Professor Triggs, you and I spoke of this, I think, as early as estimates this time last year. When all of these arrivals were ramping up, when the number of children in detention was ramping up, to the public it seemed the commission did nothing. I have expressed to you before the view that it was only on the change of government that suddenly the commission thought that this was a matter of such great importance that it needed an inquiry. Now, we went through this, I think, a year ago and we have been speaking about it ever since. You have given some explanations and you gave a report this morning. But can you just explain to me again—I give you the opportunity: why is that, when the Labor Party were in government and the boats were arriving non-stop and children were being incarcerated, you did not then think it was important to have an inquiry?
Senator HANSON-YOUNG: Point of order, Chair: I would just like to know whether you are handing over the chairing over to the deputy while you continue your questions.
Senator WONG: While you shout at the witness.
CHAIR: There is no point of order.
Prof. Triggs : With the greatest respect, you have totally misstated just about all of my evidence, and to use this phrase—
CHAIR: I have not misstated—I have not stated any of your evidence.
Senator HANSON-YOUNG: I think, Chair, you either question—
CHAIR: I have not stated any of your evidence.
Senator WONG: Point of order, Chair. I have a point of order.
CHAIR: I have not stated any of your evidence.
Senator WONG: I have a point of order, Chair.
CHAIR: Yes, point of order.
Prof. Triggs : You have repeated and stated—
CHAIR: Hang on; Senator Wong has a point of order. What is your point of order?
Senator WONG: My point of order, Chair, is: I would request that you, particularly as the chair, allow the witness to finish her answer, rather than berating her.
CHAIR: There is no point of order. Professor Triggs?
Senator WONG: Courtesy? Maybe just courtesy.
Prof. Triggs : I think—
CHAIR: Can I repeat the question, then, if you cannot remember what it was.
Prof. Triggs : I do remember the question and I remember exactly what you said.
CHAIR: I did not say you did anything.
Prof. Triggs : You did.
CHAIR: I put to you a proposition.
Prof. Triggs : In fact, you said the reverse. You said we did nothing, and that is a profound misstatement.
CHAIR: I see. Okay. Well, tell us.
Prof. Triggs : I do not know how many times I can give this evidence. But it is a very serious misstatement of our evidence to suggest that we have done nothing. The—
CHAIR: Okay. Well—
Prof. Triggs : If you would let me finish—
Senator WONG: Chair!
Prof. Triggs : I will be delighted to finish answering your question, and that is: we have handed up to you the 180 or so items of work that we have done in relation to refugee children—
CHAIR: No, that is not my question, I am sorry, Professor Triggs.
Prof. Triggs : You have said we did nothing; I will not allow that to go without challenging it.
CHAIR: My question is: why—
Senator HANSON-YOUNG: Chair, let the witness finish her answer!
Prof. Triggs : It is a serious, I am afraid, misunderstanding.
CHAIR: No. Please answer my questions. I am not interested in your assessment of what has happened. My question is why such an important issue—
Senator WRIGHT: Point of order, Chair.
CHAIR: such as a major—
Senator WRIGHT: Point of order!
CHAIR: Point of order.
Senator WRIGHT: Chair, with respect, it seems to me that—
CHAIR: What is your point of order?
Senator JACINTA COLLINS: Chair!
Senator WONG: You're rude.
Senator WRIGHT: I would put that there is a blurring of roles here—
CHAIR: What is the point of order? Which standing order are you concerned about?
Senator WONG: You're a bully.
Senator WRIGHT: The point of order is that, in this case, it would be appropriate, if you are going to be asking questions in this belligerent tone, that you allow the deputy chair to chair, allowing you to ask the questions.
CHAIR: There is no point of order. Please continue—
Senator WRIGHT: I think there is a serious question about your partiality in chairing, then.
CHAIR: Please continue, Professor Triggs.
Senator WRIGHT: There is a serious question about how—
CHAIR: There is no point of order—
Senator WRIGHT: this committee is being proceeded with.
CHAIR: and if you are going to keep interrupting I will suspend the—
Senator WONG: Chair, how about you stop shouting at people?
CHAIR: I will suspend the hearing.
Senator WONG: Maybe if you stopped shouting at people.
Senator WRIGHT: I think you are seriously compromising the dignity and the respect of the committee.
Senator WRIGHT: I want to put that on the record. I am concerned about that.
CHAIR: Thank you for putting it on the record! Now, Professor Triggs—
Senator JACINTA COLLINS: Chair, point of order: I would like to take up your suggestion that we have a brief suspension, to allow these proceedings to calm down.
Senator WONG: Hear, hear!
CHAIR: No, there is no need.
Senator JACINTA COLLINS: You just suggested it, Chair.
Senator WONG: There is.
CHAIR: I said if there were going to continually be interruptions and interjections we would do that.
Senator WONG: If you are not able to speak to people politely, Chair, perhaps we should suspend so you can calm down.
CHAIR: Professor, would you please continue.
Prof. Triggs : We have passed a document to you that demonstrates the work that the commission and I and the inquiry teams have conducted from 2012, with the report then; the report that we produced in 2013; the numerous reports that I have made to parliament over that time; the High Court interventions that we have been engaged in; the endless meetings and letters in which I have argued that the children should not be detained in the way that they are. That has been work that has, it might be said, dominated—
CHAIR: I have that.
Prof. Triggs : my agenda. Ever since I arrived, I have explained so—
CHAIR: So why the major—
Senator WONG: Don't interrupt, Chair. Point of order.
CHAIR: My question is: why—
Senator WONG: Point of order!
CHAIR: this major report—
Senator WONG: Point of order! I have a point of order.
CHAIR: after the change of government?
Senator WONG: I have a point of order, Chair!
CHAIR: Why this major inquiry?
Senator WONG: I have a point of order, Chair.
Prof. Triggs : It does not—
Senator WONG: Chair, I have a point of order.
Senator JACINTA COLLINS: Sorry, Professor Triggs. Please wait until the point of order is dealt with.
Senator WONG: You are obliged to call me. I have a point of order, Chair.
CHAIR: What is your point of order?
Senator WONG: My point of order is that the witness ought to be allowed to finish her answer before you interrupt her.
CHAIR: There is no point of order. Professor Triggs?
Senator WONG: We could have some courtesy from the chair in this hearing.
CHAIR: Professor Triggs.
Senator HANSON-YOUNG: This is a serious committee of the Senate—
CHAIR: Professor Triggs, would you like to answer, please. Please ignore the interjections.
Prof. Triggs : As I have set out in the report, in my opening statement and in much earlier evidence, we have been working across the lines of both governments—
CHAIR: Professor Triggs, I am sorry to interrupt but I asked some questions and I expect answers to my questions, not your assessment of what I might have asked. The question is: why this major report on the change of government, after years of not having such a major report? Can you explain that to me again, please.
Prof. Triggs : It is very difficult to answer your question because it is based on various false premises. We had a major report in 2004, another significant report in 2012, I reported again in 2013 and I reported on scores of individual cases across that period—89 cases over four years—to parliament. We have endlessly fulfilled our responsibilities. May I also point out that you speak rather with the benefit of doubt because the numbers were not available from the department. Nobody knew, except possibly the department, exactly how high the numbers were going. Throughout 2013 we were planning a major review and we elevated that, if that word is appropriate, to a full inquiry by December.
CHAIR: December of?
Prof. Triggs : Whichever government was in power was completely irrelevant to our work and we were, I would say, extremely critical of the former government in relation to its detention of children—
CHAIR: On notice can you give me evidence of where you were extremely critical of the previous government.
Senator JACINTA COLLINS: That is what she provided this morning.
CHAIR: Please! You are not being questioned and you are not giving evidence. I want to refer to the evidence we took yesterday from the department when they referred us to their letter to you of 10 November. The letter and the additional observations contain a litany of unfairness and inaccuracies by the commission—some of them, I understand from the department yesterday, were corrected in your final report. Can you tell me how it was that allegations of armed guards at immigration centres were made when clearly that is not the case and has never been the case.
Senator HANSON-YOUNG: There are on Manus Island.
CHAIR: You are not giving evidence. I know you are looking for another ABC headline—you did well yesterday. Let us hear from Professor Triggs.
Senator HANSON-YOUNG: Unlike you, I have read the report.
CHAIR: Let us hear from Professor Triggs.
Prof. Triggs : What precisely is your question?
CHAIR: Why was the comment made that there were armed guards at immigration detention facilities in Australia. The department has said:
While the Department has refuted this claim on multiple occasions and has separately written to the President requesting that this statement be withdrawn or evidence offered in support, no such evidence has been advanced.
It may have changed in the final report, I do not know—as I have indicated, I have not bothered to read the report because I think it is partisan. This is why.
Senator HANSON-YOUNG: You are an expert at asking badgering questions, aren't you?
CHAIR: Would you please desist, Senator Hanson-Young. I did not interrupt you at all.
Senator HANSON-YOUNG: You set the tone, Senator Macdonald, and unless you are willing to hand over the chair I do not see why you should be able to continue bullying people in this committee.
CHAIR: Professor Triggs, did you make that comment that there are armed guards? On what basis did you make that allegation?
Prof. Triggs : Senator Macdonald, I am very disappointed that you have not read this report and I would like very much—
CHAIR: That is not the question. Did you make the comment about armed guards at detention centres, and why did you make it? On what basis?
Prof. Triggs : The question was asked in the course of examination, under oath, of the then minister for immigration. That question was based on the evidence of submissions to the inquiry, on information that we were receiving, and it was also based on the fact that I saw officers with guns both at Villawood and Christmas Island. What I was doing in that public hearing was asking about the nature of the use of guns in these detention centres.
Prof. Triggs : If I could finish, please. However, I completely accept the answer by the minister and the secretary of the department that the Serco guards had no guns—in other words, that was their answer to my question and I accept that answer. The difficulty is—and we are entirely open to this—that the guns may have been held by the Australian Federal Police or others. But it is entirely appropriate to ask the question because of the evidence that had been given to the inquiry and, indeed, to the evidence of my own eyes.
CHAIR: You stated that there were armed guards. There is another one: 'If you don't calm down'—an anonymous allegation—'we'll get the police dogs onto you.' I think you may have removed that from the final report, did you?
Prof. Triggs : I will ask Ms O'Brien to answer that one. We dealt specifically with that.
Ms O’Brien : The comments were taken on board from the department and they are reflected at page 101 of the report.
CHAIR: Thank you. Why was the allegation first put in the draft report? On what basis was the allegation made? What substantiation was there that there were guard dogs—police dogs, sorry.
Ms O’Brien : It was part of the evidence collected. I am not sure through what process that particular piece of evidence was collected, but it was either part of the interview process or perhaps a submission. I would have to take on notice exactly how that evidence was obtained by the inquiry.
CHAIR: You will have to take that on notice. I could go through this in detail. There is the issue about dismissal of evidence provided to the commission on child mental health systems. I think the draft report said it is difficult to confirm the actual availability of child mental health specialists and services on the island, yet the department, or someone, the IHMS, on 19 September had written to you or given you information, written advice, of exactly which mental health specialists, which child psychiatrists, were there. So how was it that the draft report said 'It is difficult to understand it', when you had direct evidence that those professionals were there?
Ms O’Brien : I am not sure whether there is some confusion as to whether they were general practitioners or whether they were specialists. We would have to take that question on notice.
CHAIR: You have read the letter from the department which sets this out in spades. You may have changed it—I don't know. What I am asking is: how was the allegation first there? You do not need to take that on notice. You have read what the department said.
Ms O’Brien : The allegation was accepted as part of the evidence collected for the inquiry.
CHAIR: Yes, I accept that. But how did it come to be in the draft report when it was clearly not factual? You had been given the evidence, yet the draft report said you could not get any figures or evidence.
Ms O’Brien : I am not sure we can conclusively say it was not factual. You are just pointing to the department's response.
CHAIR: Oh, so you're saying that the department's advice to you is not factual?
Ms O’Brien : I am saying that I do not have the information before me to talk about what specialists we are talking about, whether it is general practitioners or whether they are mental health specialists or whether they are paediatricians. I am very happy to take the question on notice, Senator.
CHAIR: I will have to come back to this. There are a series of issues raised by the department that clearly show the unsustainable nature of this report. They may have been changed. I want to know why they were there in the first instance. I will come back to it. Just before I go, Professor Triggs gave some evidence about a version of events of a meeting between the Secretary and Professor Triggs. I wonder, Mr Moraitis, if you could give your version of those meetings and that event.
Mr Moraitis : Can I just clarify some facts regarding meetings I have had with the President. I have had three meetings with President Triggs. One was in Sydney in early October, a few weeks after my appointment as secretary. It was a courtesy call that I sought, and Mr Fredericks accompanied me in that meeting in her office. I have had subsequent conversations about issues in the period of January. I had a second meeting with Professor Triggs, as she said, in my office in late January, and then I had a meeting on 3rd February. So there have been three meetings and at least one phone call to discuss the issues regarding the subject matter of this discussion.
Senator JACINTA COLLINS: When was the function?
Mr Moraitis : It was sometime in January, when I was on leave. I had a message to call Professor Triggs, because she used to speak to me about matters. I called her back. That is the chronology of my interaction. I made a courtesy call to the commission, in the third week of my appointment as secretary, discussing a range of issues. If I recall correctly, throughout those discussions, there was a report in the pipeline and within the time lines, as described in evidence this morning. That was my understanding and I undertook in those meetings to ensure that the report was tabled within the 15 sitting days.
If I recall correctly, there had been a change of ministers in the department of immigration in late December which, obviously, affected the time lines. But I was assured by my staff that they were working to ensure that the report would be tabled in accordance with the act and our obligations as a department.
During those discussions there were discussions about the commission and its standing vis-a-vis the government. I was asked in early January as to what my views were about recent events. By that, I refer to the series of media of Senate estimates late last year. I said, 'It's unfortunate. I was asked my views about the Attorney's views about the situation.' I said I did not know. I did not have any discussion with the Attorney. I had no reason to believe that he had any serious concerns about anything. But Professor Triggs asked me to expressly seek from the Attorney his views about her role and her status as chairman, which I undertook to do on my return to the office.
CHAIR: So Professor Triggs asked you to find that out?
Mr Moraitis : Correct. So I undertook to do that. Secondly, in the meeting in late January, Professor Triggs called on me in my office. We had a discussion about the tabling of the report. I said, as I had undertaken, 'We are working to ensure it is tabled within 15 sitting days. That is a requirement that my department takes seriously,' and I think we did do that. There was a discussion about other matters. I also mentioned that I had not had a chance to speak to the Attorney, because both of us had been on summer leave and would be returning to work in late January.
If I recall correctly, there was a meeting scheduled with the Attorney on 1 February, the week after, involving the President and another commissioner. I thought that perhaps that was an opportunity for clarification of what the Attorney's standing was vis-a-vis the commissioner and the president, in particular. I said it would be a good opportunity to do that but that I would still seek a discussion with the Attorney, if I could.
I had a subsequent discussion with the Attorney and mentioned that I had been asked to seek his views on what he thought about the commission. He said that he obviously had strong views about the commission in the sense that it had a duty to fulfil. He has never discussed the substance of it in any adverse way. He believed the commission should act according to its mandate. I did say that I would like to seek his views about Professor Triggs in the light of recent events. He said he would get back to me.
I mentioned to him that I understood he was scheduled to meet with Professor Triggs in early February. I understand that meeting did not happen, because the Attorney subsequently called me the week after to say that he had thought about the situation and asked me to convey his views, as requested, to Professor Triggs, which I did, because I had undertaken to do so at the request of Professor Triggs.
As a result of that, I booked to personally go to Sydney the next morning. I did not want to leave it too long because I was heading overseas to London the next day on the fourth and I would be away for a week. I thought I was doing the courtesy by not picking up the phone or sending an email but by actually personally calling Professor Triggs to fulfil my undertaking to tell her what the Attorney's views were about her standing as chairman, which I did.
I have authority from the Attorney to mention what his instructions were. They were as follows: unfortunately, the Attorney does not have confidence in Professor Triggs in her present role as commission president. Nevertheless, he retains significant goodwill towards Professor Triggs and has high regard for her legal skills. In that respect, the government would be prepared to consider positively a senior legal role for her, which I specifically mentioned—a specific role, which I am well aware of. Those were the terms in which I conveyed my message to Professor Triggs.
When I saw Professor Triggs on 3 February, I went straight to the point, as Professor Triggs has made clear. I said, 'As you recall, you had asked me to seek the Attorney's views about your standing in the commission and I am here for that person, to be able to give you the courtesy in person to tell you what his views are.' I relayed those views. I never said—I have never sought her resignation. I said that the Attorney, unfortunately, had lost confidence in her as chairman. However, he had high regard for her skills and had significant goodwill towards her. That was my understanding of the discussion and that was my recollection. Thank you.
CHAIR: Thank you. Just before we break, Attorney, you have not been directly involved with it but do you have a view that perhaps should be put on the record?
Senator Brandis: Yes, thank you, Mr Chairman. Obviously, I was not at the meeting between Mr Moraitis and Professor Triggs, but the meeting did happen with my knowledge and consent. Mr Moraitis, as he has said, had told me in I think late January that Professor Triggs had inquired of him where she stood with me and with the government, and Mr Moraitis told me that on Professor Triggs's behalf he was making that inquiry of me. What Mr Moraitis has said in the statement that he has just made accords with my recollection. The fact is, Mr Chairman, that by not later than the middle part of January I had lost confidence in Professor Triggs as President of the Human Rights Commission. It saddens me to say that because, as Professor Triggs herself has said, our relationship has never been anything other than cordial. I have a high regard personally and professionally for Professor Triggs. I like her personally. I am aware of her reputation as an international lawyer. In fact, I have read many of her published works on international law and one of her special subjects—namely, international boundaries. So there was no ill will from me towards Professor Triggs.
But after the November estimates, when on any view Professor Triggs gave inconsistent and evasive evidence of the circumstances in which the decision was made to hold the inquiry which we have been discussing and, in particular, when Professor Triggs conceded that she had made a decision to hold the inquiry after the 2013 election and had spoken during the caretaker period, quite inappropriately, with two Labor ministers—a fact concealed from the then opposition—I felt that the political impartiality of the commission had been fatally compromised. The Human Rights Commission has to be like Caesar' wife; it has to be beyond blemish. Although it is an executive agency, it is a very special executive agency because its act of parliament requires it to be an advocate for human rights, to make inquiries into matters concerning human rights, and it is perfectly appropriate for the Human Rights Commission in the discharge of its statutory function to be critical of the government of the day. I am completely relaxed about that—completely relaxed that the Human Rights Commission can and on occasions should take a view at variance from the government of the day and be critical of the government of the day. But if it is to do that and maintain the confidence of both sides of politics it absolutely has to ensure that it is not seen to be politically partisan.
Whether deliberately or through a terrible error of judgement, Professor Triggs, as she conceded in her evidence to the November estimates, embarked on a course of conduct in 2013 as a result of which the confidence that my side of politics had in her impartiality, and my own confidence in her impartiality, collapsed. I am prepared to consider it to be an error of judgement. Nevertheless, after the November estimates it is beyond doubt that the confidence in Professor Triggs's political impartiality and nonpartisanship on my side of politics had collapsed and numerous members of the government—I do not mean three or four; I mean dozens of members of the government—in the weeks after those estimates by phone calls, by text messages, by visits to my office had expressed that view to me. I am a supporter of the Human Rights Commission. Not everyone on my side of politics is, but I am a supporter of the Human Rights Commission and it is—
Senator Wong interjecting—
Senator Hanson-Young interjecting—
Senator Wright interjecting—
CHAIR: Just one moment, Minister. Clearly, some of the members of the committee do not want to hear what you are saying so they are trying to shout you down. It is very discourteous, it is contrary to standing orders and I would ask them to desist or leave the room.
Senator O'SULLIVAN: They think it is funny. This is a serious matter.
Senator WRIGHT: It is the hypocrisy!
Senator Hanson-Young: Someone has been shut up—
CHAIR: Senator Hanson-Young, would you please leave the room.
Senator Hanson-Young: I am not leaving.
CHAIR: Please be quiet and abide by the standing orders.
Senator Hanson-Young: If you promise to do the same, Chair, I will.
Senator Brandis: May I finish my statement please?
CHAIR: I am trying to give you the opportunity of being heard, Senator Brandis. With the yelling coming from both sides of this table, I was struggling to hear you. If I can have some quiet we will continue.
Senator BRANDIS: Thank you very much. As I was saying, I am a supporter of the Human Rights Commission. I am—as Professor Triggs well knows, because we have discussed it more than once—on my side of politics one of its principal advocates and defenders. If I am to be an advocate and defender of the Human Rights Commission it is absolutely essential that it be perceived, on both sides of politics, as an institution that is politically impartial, that it does not take sides.
As a result of what Professor Triggs admitted to, in the November estimates—whether by deliberation or, as I would prefer to think, by catastrophic error of judgement—she placed the commission in a position where it could no longer command the confidence of both sides of politics or, indeed, my own confidence as the minister, in her political impartiality. I had reached the conclusion, sadly, that Professor Triggs should consider her position.
During the course of January, I heard from multiple sources—including Mr Moraitis, including from people within the Human Rights Commission who spoke to me on condition of anonymity—that Professor Triggs was indeed considering her position. So I asked Mr Moraitis. Mr Moraitis told me, as he has indicated, what Professor Triggs had asked him to raise with me, and I asked him to have the meeting with her that he has described. You have heard Mr Moraitis's account of that meeting.
I continue to have personal goodwill towards Professor Triggs. It is the case that I would be glad for Professor Triggs to be of service to the Australian government. But I am afraid the fate of the commission, the reputation of the commission, will not survive the reputation for political partisanship which, I am sorry to say, Professor Triggs has given it.
CHAIR: We are a fraction late for morning tea. We will break for 15 minutes.
Senator Hanson-Young interjecting—
Senator Jacinta Collins interjecting—
CHAIR: If you want to shout, Senator Hanson-Young, could you please leave the room and go down in the yard. The same for you, Senator Collins.
Senator Jacinta Collins: Chair, please know your rules. We are just asking you to apply them consistently.
CHAIR: I am indicating we will break for 15 minutes, whereupon I will call upon Senator Collins or whoever she should exceed to. If they want to put to Professor Triggs whether she wants to say anything, that will be a matter for them. I am sure Professor Triggs, in fairness, will have the opportunity—during the course of what seems will be a very long day—to respond, should she so wish to.
Proceedings suspended from 11:24 to 11:42
Senator JACINTA COLLINS: The chair indicated that he would be coming to me next, so I do not think he will object if I commence whilst we are still waiting for him, given it is after the time he specified.
Senator Brandis: I am not familiar with such an approach being taken. I think as a courtesy to the chair we should wait for him.
Senator JACINTA COLLINS: You may not be familiar, but we have done this on several occasions in the past. But he is now here.
Senator Brandis: I was just going to say that, given that Senator Macdonald is only a minute or two late, I think it is a little discourteous not to wait for him.
Senator IAN MACDONALD: I welcome everyone back. I have succeeded in taking all the media out of the room, so I have done something useful today. No doubt they will be back. I will just indicate that, if I am a little late back, I will let someone know if I want them to take over the chair. Otherwise it needs to be a private meeting of the committee which by majority decides to proceed without me. That is just for the future.
Senator JACINTA COLLINS: I would like to ask Mr Moraitis to consider reviewing the comments he provided before. I observed that he was, in general terms, reading from what appeared to be a statement. Unfortunately the circumstances with Hansard now are such that yesterday, for example, it was not until after 6:30 that we had access to the Hansard covering the attack on the Privileges Committee. It would assist the committee if, if Mr Moraitis's comments were in statement form, they could be made available sooner.
Mr Moraitis : There is no statement.
Senator JACINTA COLLINS: So there is no statement?
Mr Moraitis : That is just my recollection.
Senator JACINTA COLLINS: So we wait need to wait until after 6.30 before we can review on the record what she put. I understand that Senator Wong has some further questions in relation to the comments you made, so I will go to Senator Wong.
Senator WONG: Mr Moraitis—
Mr Moraitis : It is pronounced M-o-r-a-i-t-i-s.
Senator WONG: I am sorry; too much Conan Doyle.
Mr Moraitis : Too much?
Senator WONG: Conan Doyle. Let us just go back through the series of meetings you say—
CHAIR: I am glad I did not say that. I would have been accused of other things, but anyhow, carry on.
Senator WONG: Reading the classics?
Senator Brandis: You might have been accused of sexism, Senator Macdonald.
Senator WONG: How is reading Conan Doyle sexist?
Senator JACINTA COLLINS: It is a strange world they live in.
Senator WONG: Can we just go through the meetings you say you have had with Professor Triggs. Let us start by reminding me when you were appointed as a secretary.
Mr Moraitis : It was 15 September.
Senator WONG: You say you have had, was it, three meetings with Professor Triggs?
Mr Moraitis : That is right.
Senator WONG: The first one you say was when?
Mr Moraitis : I think it was on 8 October, something like that.
Senator WONG: I think you said early October previously. Have you gone and checked the records?
Senator JACINTA COLLINS: I think it was 3 October.
Mr Moraitis : No, it was 8 October in Sydney.
Senator WONG: Where was that meeting?
Mr Moraitis : In Sydney at the president's office.
Senator WONG: Were you present with anybody?
Mr Moraitis : Yes, I was present with Mr Fredericks, my deputy.
Senator WONG: What was the purpose of that meeting?
Mr Moraitis : It was a courtesy call. I was in Sydney and I arranged to call on the president to discuss issues that were on the agenda.
Senator WONG: What was on the agenda?
Mr Moraitis : If I recall correctly, there were some reforms to do with the Office of the Information Commissioner. There were issues about, I guess, general administration—the relationship between our department and the commission. It was just an introductory call for me to see if there were any issues.
Senator JACINTA COLLINS: Was there a written agenda?
Mr Moraitis : Not that I can recall, no.
Senator WONG: Did you or Mr Fredericks do a file note of that meeting?
Mr Moraitis : I beg your pardon?
Senator WONG: Did you or Mr Fredericks do a file note of that meeting?
Mr Moraitis : I did not take a file note, no.
Senator WONG: Did Mr Fredericks?
Mr Fredericks : I will take that. No, I did not.
Senator WONG: Was there anything in that meeting in relation to Professor Triggs' performance which was discussed?
Mr Moraitis : Not at all.
Senator WONG: Then you had a subsequent meeting with Professor Triggs, when?
Mr Moraitis : I had a meeting in my office on 29 January.
Senator WONG: 29 January.
Senator JACINTA COLLINS: Mr Moraitis, this is one of the reasons I sought to clarify your earlier comments, because in those comments you made reference to early January. Maybe you meant early February or—
Mr Moraitis : I was asked to return a phone call from Professor Triggs in early January, during the summer break, which I did, and it was a long discussion.
Senator WONG: So was the phone call before or after 29 January?
Mr Moraitis : Before.
Senator WONG: And the phone call, you say, was from Professor Triggs to you?
Mr Moraitis : I was on leave and I had a call from my office saying that Professor Triggs wished to speak to me rather than the acting secretary, and I then returned the call.
Senator WONG: I am sorry?
Mr Moraitis : And then I returned the call.
Senator WONG: Do you know when that was?
Mr Moraitis : It was around the second week of January.
Senator WONG: Did you take any notes in relation to that call?
Mr Moraitis : No, I was on leave.
Senator WONG: And you did not take any notes?
Mr Moraitis : I did not have any papers with me. I was literally on the beach.
Senator WONG: Is the call in which you assert that—well, you tell me again what you say happened in that telephone call.
Mr Moraitis : What I said in my previous discussion?
Senator WONG: I found it very hard to hear you, I am sorry.
Mr Moraitis : Okay. I will explain.
Senator WONG: I found it quite hard to hear you—
Mr Moraitis : Professor Triggs asked—I am sorry?
Senator WONG: You were speaking very fast, very quietly and learning back, so I found it a little hard and I think others did, so perhaps we can retrace that.
Mr Moraitis : Sure. I am very sorry about that. In that discussion Professor Triggs asked for my views on what was happening with the commission and what the Attorney's take on things was. I said I really did not know, I have not had a discussion with the Attorney about the commission in recent weeks, but at her request I undertook to seek his views when I returned to work.
Senator WONG: When did you return to work?
Mr Moraitis : It would have been about 17 or 18 January.
Senator WONG: When did you meet with the Attorney?
Mr Moraitis : I had a phone call with the Attorney in late January. I had two phone calls with the Attorney in late January.
Senator WONG: After you returned to work?
Mr Moraitis : Correct.
Senator WONG: Was the issue of the Human Rights Commission and Professor Triggs discussed in that phone call?
Mr Moraitis : Yes.
Senator WONG: Did you take a file note of those calls?
Mr Moraitis : No. I received a phone call from the Attorney in late January. I assumed he was still on leave, so I was surprised to receive a call because I did not expect him to be back at the office. I was in a meeting, so we could not speak. He asked me what I thought about the situation and I said—
Senator WONG: What is the situation?
Mr Moraitis : The situation with the commissioner and President Triggs in particular.
Senator WONG: Can we stop there. I want to do this in bits. You say there were two phone calls. Is this the first one?
Mr Moraitis : Yes.
Senator WONG: And this one was approximately when?
Mr Moraitis : Late January.
Senator WONG: But you have no file note of that?
Mr Moraitis : No. I was in a meeting. I took the call and spoke to the Attorney. He asked me about President Triggs and whether I had had any discussions. I said, 'Actually, yes, I have. Professor Triggs has asked me to seek your views.' I said that I could not answer what his views were because I had not had a discussion with him about his views about the commission or the president in particular and that I had undertaken to do so at the earliest opportunity. I did say that I understood there was a meeting happening between Professor Triggs and the Attorney the week following, in early February—I am not sure of the exact date—and that it would be an opportunity for him to speak to the president to express his views about her role.
Senator JACINTA COLLINS: Himself, rather than through you?
Mr Moraitis : Correct. We did not have a chance to speak further, but the Attorney undertook to get back to me.
Senator WONG: I will come back to the second call. Can we just go to the first call. At the stage of the first call, between the call with Professor Triggs and the call from the Attorney, did you actually communicate to him that, as you say, Professor Triggs had asked you to explore the Attorney's views?
Mr Moraitis : It was during that phone call that I mentioned it to the Attorney.
Senator WONG: But my point is that at no stage prior to the Attorney calling you had you communicated what you say Professor Triggs said to you.
Mr Moraitis : To the Attorney?
Senator WONG: Prior to that phone call.
Mr Moraitis : No.
Senator WONG: Okay; so he rings you and—
Mr Moraitis : I understood he was on leave. It was January. It was not—
Senator WONG: So he rang you and raised the issue of the Human Rights Commission off his own bat?
Mr Moraitis : In general terms, yes.
Senator WONG: And he was expressing concern about the Human Rights Commission?
Mr Moraitis : He wanted to know whether I had had any discussions or any views. I said that I had actually had a discussion and that I wanted to know his views about the president in particular, with a view to conveying those views to the president. He said that he would get back to me over the next few days.
Senator WONG: In that phone call, did the Attorney indicate any concern about the actions of the Human Rights Commission?
Mr Moraitis : If I recall correctly, he mentioned that there was a lot of media over the Christmas-New Year period. I said, yes, I had read it on and off over that period. And that was it.
Senator WONG: In that phone call, did the Attorney indicate any concern or his view about Professor Triggs?
Mr Moraitis : Not that I can recall, no.
Senator WONG: Did the Attorney, in that phone call, indicate a view about The forgotten children?
Mr Moraitis : Not at all.
Senator JACINTA COLLINS: Mr Moraitis, what do you understand precipitated that call?
Mr Moraitis : Which call?
Senator JACINTA COLLINS: From the Attorney to yourself whilst he was on leave?
Mr Moraitis : I do not know.
CHAIR: That is a question which you do not have to answer.
Senator JACINTA COLLINS: It just came out of the blue and you do not know why?
Mr Moraitis : Yes.
Senator WONG: Did the Attorney give you any indication of the views of his colleagues?
Mr Moraitis : No, not that I can recall.
Senator WONG: In that first phone call?
Mr Moraitis : It was a very short phone call. I was in a meeting. The Attorney said that he would call me back a few days later.
Senator WONG: To do what?
Mr Moraitis : To call me again.
Senator WONG: Yes, to do what?
Mr Moraitis : To express his views, so hopefully I could convey some views to Professor Triggs.
Senator WONG: Tell me if this is a fair summary of that evidence: the Attorney rings you, essentially out of the blue; you have not sought the phone call?
Mr Moraitis : Correct.
Senator WONG: He asks you your view about the Human Rights Commission and Professor Triggs. You indicate to him what you allege, which is that Professor Triggs has asked you to—how did you describe it?—seek his views.
Mr Moraitis : Ascertain his views or seek his views.
Senator WONG: About what?
Mr Moraitis : About her standing in the commission as president and what he thought about her performance.
Senator WONG: About her standing? Do you recall the words?
Mr Moraitis : It was something to that effect.
Senator WONG: What does 'something to that effect' mean?
CHAIR: That is very clear.
Mr Moraitis : I did not take a file note, Senator. I recall that there was a discussion; if I recall correctly there was quite a bit of media—adverse media, unfortunately—about the commission, which was raised. I said I had been asked by the commissioner, and I was waiting to see the Attorney on his return, so it was actually a propitious call. So I could then ask for his views. He said he would think about it. As I said, I understood he was meeting with the president a few days later in Canberra, and that was it.
Senator WONG: And you say there was a subsequent telephone call?
Mr Moraitis : Yes. I was then called—it would have been early February, on a Monday, probably a Monday afternoon.
Senator WONG: Sorry, Monday the what?
Mr Moraitis : I would have to check—possibly the 2nd.
Senator WONG: That would be the day prior to the meeting with Professor Triggs?
Mr Moraitis : Correct. Yes, it was the day prior.
Senator WONG: So the day prior he rings you?
Mr Moraitis : The Attorney told me that he had not had a meeting with President, as had been in the schedule. I cannot recall the reasons why that was.
Senator JACINTA COLLINS: Had not had or was not going to have?
Mr Moraitis : I am sorry?
Senator JACINTA COLLINS: I thought you indicated that call came the day before he was due to meet with the president.
Mr Moraitis : Which call you talking about, Senator?
Senator JACINTA COLLINS: The second phone call from the Attorney, I thought you just said, occurred the day before he was due to meet.
Mr Moraitis : No—
Senator WONG: No, the day before the meeting.
Mr Moraitis : Actually, the Attorney reminded me: the reason the conference with the president was cancelled was that there was a Press Club speech that day by the Prime Minister. That clashed with—if I recall, that is the—
Senator Brandis: I am deliberately avoiding jumping in, because I understand you are entitled to have Mr Moraitis's evidence without interruption, but I can assist here if you want me to, Senator Wong. I was invited to the Prime Minister's Press Club address, which I think was on Monday, 2 February. I had not originally planned to go, but I was invited quite late in the week previous, so I changed my plans to be at the Prime Minister's Press Club address that day. As you know, those Press Club addresses start in the late morning, really, and I had to fly down from Brisbane, so there was an extra hour because of the time. So I was not able to go from Brisbane to Sydney to have the meeting with Professor Triggs and then on to Canberra in time to be at the Press Club speech. It is for that reason that I cancelled the meeting with Professor Triggs that had been in the diary.
Senator WONG: Sure. So the meeting did not occur. Thank you for that explanation, Attorney. Mr Moraitis, you have a further discussion with the Attorney the day before the meeting that you have with Professor Triggs—
Mr Moraitis : If I recall correctly, it would have been that afternoon when that meeting was supposed to have taken place but did not take place. That would have been Monday the 2nd.
Senator WONG: A telephone call?
Mr Moraitis : Correct.
Senator WONG: At the time you took that telephone call from the Attorney, you had not as yet—or had you as yet—made an appointment to see Professor Triggs?
Mr Moraitis : No, I had not made an appointment to see Professor Triggs. I had seen Professor Triggs the week before in my office. As I said, I had a second meeting with her.
Senator WONG: So was it only as a result of the discussion with the Attorney that you in fact made an appointment to see Professor Triggs, for the conversation about which he has given evidence?
Mr Moraitis : That is correct, and I had a discussion with the Attorney in the second phone call on the afternoon of the 2nd in which the Attorney conveyed his views and I said I would seek to convey those to Professor Triggs, as I had undertaken.
CHAIR: Senator Wong, you have been going for 14 minutes, so you have a minute to finish your questions.
Senator WONG: We will come back. There is obviously a lot to ask. In the conversation with the Attorney-General, you say he indicated that he had lost confidence in Ms Triggs as the President of the Human Rights Commission?
Mr Moraitis : That is correct.
Senator WONG: At any point in that discussion, was the possibility of her resigning from the position raised?
Mr Moraitis : I do not recall. My recollection was—
Senator WONG: Sorry, you do not recall—
Mr Moraitis : I do not recall that being said.
Senator WONG: You do not recall?
Mr Moraitis : No. I was asked to convey the view that he had lost confidence in Professor Triggs.
Senator WONG: No. I will come in detail to the actual conversation with Professor Triggs. I am only at this point asking you questions about the telephone call with the Attorney-General which prompted you to set up a meeting with Professor Triggs, where she asserts that the conversation occurred. Can we go back to this?
Mr Moraitis : Yes.
Senator WONG: At any point in the discussion with the Attorney, on 2 February, did you understand that the government was seeking Professor Triggs's resignation?
Mr Moraitis : My conclusion was that that would be one option, yes, given that they lost confidence—the view was that the Attorney did not have confidence.
Senator WONG: So it was a live prospect, for you—an option—that the resignation would be sought?
Mr Moraitis : My instructions were to convey what his views were about the president, which were that he had lost confidence in the president.
Senator WONG: Were his views also that she should resign?
Mr Moraitis : I do not recall him saying that expressly.
Senator WONG: Did you understand that he wanted her to resign?
Mr Moraitis : That was an option I understood from that discussion.
Senator WONG: So it was clearly an option from that discussion that the Attorney wanted her to resign?
Mr Moraitis : That was my take as a possibility.
Senator WONG: Chair, I have a lot more, so I am happy to come back to those.
CHAIR: That is fine. Thank you, Senator O'Sullivan.
Senator WRIGHT: No, excuse me, Chair: I have a point of order. We had understood that it was going to be government, opposition—government, opposition, the Greens. The Greens have had 15 minutes since nine o'clock. We have had government, opposition, then government. It was you before the break, 30 minutes, then we have had the opposition. It is now, according to your own rules, the Greens turn and I have some questions to ask.
CHAIR: No. It is two opposition.
Senator WRIGHT: It was. You have already had two opposition.
Senator WONG: Government, opposition—government, opposition.
CHAIR: Tell me if I am wrong. We had two government, two opposition.
Senator WRIGHT: Yes.
CHAIR: We have had one government?
Senator WRIGHT: No, we have had two government, two opposition and it is now time for the Greens.
CHAIR: Okay. I beg your pardon. Senator Hanson-Young.
Senator WRIGHT: No, it is me. I just said that I have some questions.
CHAIR: Senator Wright.
Senator WRIGHT: Thank you, Chair. Can I go to you, Secretary Moraitis, first of all. I want to be really clear. What do you say that Professor Triggs asked you to ascertain from the Attorney-General?
Mr Moraitis : What his views were about her role as president of the commission.
Senator WRIGHT: Were those the words that she used or was that the general tenor?
Mr Moraitis : As I said, I took a phone call and had a discussion with Professor Triggs. I was asked, as I said, what did I know about the Attorney's views or perceptions about the commission, in particular the president's role. I said I had no views either way and, 'I have not had a discussion with the Attorney about that.' I undertook to ascertain what they were on behalf of President Triggs.
Senator WRIGHT: I am trying to understand. Just looking at those words that you have given, that could be interpreted as the role of the commission in general and that of the president. Did you understand that to be in terms of the legal statutory role of the commission and the president or something different?
Mr Moraitis : No, no, no.
Senator WRIGHT: What did you understand that to mean?
Mr Moraitis : I understood it to be the status of the president of the commission. It was not about the statutory role of the commission at all.
Senator WRIGHT: So the status as in—
Mr Moraitis : Not at all.
Senator WRIGHT: What do you mean by 'the status'?
Mr Moraitis : What the Attorney's views were about the president and her performance.
Senator WRIGHT: And her performance?
Mr Moraitis : Her role and performance in recent times.
Senator WRIGHT: Are those the words that you say—
Mr Moraitis : I cannot recall if those were the words that were used.
Senator WRIGHT: I am now going to come to you, Professor Triggs. You have heard quite a deal of evidence before the break and you have now heard some more evidence there. Did any of that evidence take you by surprise? Or do you disagree with the evidence that we have heard about the information, it has been said, that you asked the secretary to ascertain from the Attorney-General?
Prof. Triggs : I think one has to understand this by reference to the context. My reason for phoning the secretary was, firstly, that previous appointments with the Attorney had been cancelled, for good reason. That was not a problem. The Attorney must change his schedule not infrequently. But, nonetheless, I was not having the opportunity to catch up with him as I might like to have done and as I had asked on several occasions to be able to do. But you might recall—and I do not remember precisely—that certainly from early December, all the way through November, an Australian newspaper was, virtually daily, attacking the commission and me personally. I think we added them up at one stage—28 consecutive days on which that newspaper was attacking the commission, the work of the commission and me personally.
So in the context of that, which I can only describe as a barrage of criticism in that newspaper, it seemed to me very important that I talk to the Attorney or the secretary of the department to ask what their view was of this information in that paper. And of course to ask the question why the department and the Attorney were not speaking up publicly to refute the inaccurate reports that were in that paper. I am absolutely certain that I was not at any stage asking questions about me at any personal level or about a lack of confidence. That had never been suggested to me, ever. At that stage I was concerned about two things. One, the unremitting level of the criticism in the newspapers, which was not being responded to at all by either the department or the Attorney.
Another question that, again, underpinned many of the meetings that I had tried to get with the Attorney was my concerns that the report had been given to the Attorney on 11 November and had still not been tabled in parliament. So we were getting very anxious and it became very clear of course before Christmas that it would not be tabled then and that the tabling would occur, if at all, in early February in the next sitting week.
That is the context in which I was, I believe entirely appropriately, trying to make contact with the Attorney, to have some sense of what he thought of those newspaper reports and whether he was willing to stand up and contest the accuracy of those reports. You might recall also that it was not actually necessarily or only about the report in relation to the children in detention; it was also about finding the recommendations that I had been making in a series of individual reports to parliament. There were many, many issues that were being taken up in the media and I was very concerned to have some sense from the Attorney and the department as to how the commission was travelling and what support they might be prepared to give to us.
Senator WRIGHT: Thank you, Professor Triggs. I am now going to ask some questions of the Attorney-General, following on from what you have said there. Attorney-General Brandis, I think I am right in thinking that the commission and its president is tasked under statute to inquire into and report on matters of serious human rights concern and then, under the scheme that we have, the government is free to reject recommendations contained in the commission's reports. Is that right?
Senator Brandis: The statue—I have got a copy here. It speaks for itself.
Senator WRIGHT: I am just speaking so that people—I have got that right, have I?
Senator Brandis: The statute speaks for itself, Senator.
Senator WRIGHT: So that is not wrong, then, what I am saying there?
Senator Brandis: I think it is a fair paraphrase of one section of the act, yes.
Senator WRIGHT: Thank you. As Attorney-General, can you point to any provision of the Australian Human Rights Commission Act that the commission or the president has breached or any particular errors of law in any of the commission's reports that concern you?
Senator Brandis: I think, if I may say so, that is an unrealistically narrow question, because what I said in my statement before the morning tea adjournment is that I had reluctantly come to the view, following in particular Professor Triggs's performance at the November estimates, that I had lost confidence in her. I cannot tell you a particular date by which I had reached that conclusion. I was on leave in the first half of January and I can tell you I reflected a lot on this. I had seen the reports in a number of newspapers—in The Australian, in the Murdoch tabloids in particular but also not exclusively there.
Senator WRIGHT: With respect—
Senator Brandis: Sorry, if I may finish, please.
Senator WRIGHT: That actually was not my question, though. I am not questioning your view—
Senator Brandis: If I may finish, please. Senator Wright, you are entitled to put your questions in your own words and I am entitled to put my answers in my own words.
Senator WONG: As Professor Triggs is.
CHAIR: Senator Wong, you are not chairing this committee.
Senator WONG: If you chaired it, it would be good. It would be good if you would actually chair it. That would be useful.
CHAIR: Senator Wong, would you please desist from interjecting and shouting across the table. Senator Brandis.
Senator Brandis: I reflected on this, in the first part of January in particular. I had been, as I said before, the recipient of numerous—numerous—representations from my colleagues, from which it was very apparent to me, that the government had lost confidence in Professor Triggs. Although you asked me to point to a provision of a statute, Senator, I think you would understand that, particularly in an institution like the Human Rights Commission, which, as I said before, needs to be like Caesar's wife when it comes to political partisanship, it was not possible for Professor Triggs to lead the commission the way I thought it ought to be led when confidence in her non-partisanship had collapsed, particularly following the November estimates. That is the basis on which I arrived at that view.
Senator WRIGHT: You have just basically repeated evidence that you gave earlier and that is very—
Senator Brandis: I am responding to your question, Senator.
Senator WRIGHT: Actually, the question was a legal one about the statutory scheme that we have. I will ask again—
CHAIR: Can I intervene there?
Senator Brandis: It is not a question—
CHAIR: Senator Brandis!
Senator WRIGHT: I am not gainsaying—
CHAIR: Senator Wright, if you are asking for a legal opinion, you know that that is contrary to standing orders and I will not allow the question.
Senator WRIGHT: I am not asking for a legal opinion, Chair.
CHAIR: Okay. Well, what are you asking for?
Senator WRIGHT: I am not actually gainsaying the clear opinion about the terrible error of judgement that the Attorney-General has made at this point, because essentially it seems that you were putting—
CHAIR: What is your question?
Senator WRIGHT: a political context on what has happened. I was asking about whether or not there are any particular breaches of the act or any errors of law that have been identified, and I have not heard that there have been. There may be other reasons that you have come to the views that you have come to, and you have given that evidence. I was asking specifically about those aspects. Has there been any breach of the act?
Senator Brandis: You may be, Senator Wright, but this was not an issue of law.
Senator WRIGHT: Well, I am asking you—
Senator Brandis: This was an issue of confidence in the leadership of an agency of the executive government.
Senator WRIGHT: It may well have been, but I will gather from that then that there are not any errors of law or any particular breaches of the act—
Senator Brandis: I have never said that.
Senator WRIGHT: I am glad that is there clearly on the record; thank you. I now want to ask you about decisions that have been substantially critiqued, as you say, particularly in the Australian newspaper but also by members of your government—so the Prime Minister, the Minister for Immigration and Border Protection and Mr Dutton as well. I understand that decisions of the President of the Human Rights Commission are reviewable decisions under the Administrative Decisions (Judicial Review) Act; is that right?
Senator Brandis: Senator Wright, only by a party directly affected by them with standing. That has got nothing to do with this report.
Senator WRIGHT: I am not sure which report you are talking about.
Senator Brandis: I thought you were talking about The Forgotten Children report.
Senator WRIGHT: I have not mentioned that report.
Senator BRANDIS: I am sorry, I just assumed you were, since that is what we are talking about.
Senator WRIGHT: No, I am speaking generally about the work of the commission.
Senator Brandis: Sure.
Senator WRIGHT: As we have been generally discussing the future of the commission and the president. So it is correct to say that if a person has standing that under the ADJR decisions that concern parties can be reviewed under the existing regime; is that right?
Senator Brandis: I believe so, but by a person with standing in the legal sense of the word, which you would know, as a lawyer yourself, has a technical meaning. Just because somebody is aggrieved by or disagrees with a decision or a view expressed by the commission does not of itself give them standing to seek review.
Senator WRIGHT: No; that is right. As Attorney-General, would you be able to seek standing to have judicial review of a decision that you were concerned about?
Senator Brandis: I do not think I could and, in any event, as a matter of practice, I would not.
Senator WRIGHT: Can I take you to some comments that you have made recently, or late last year in fact, about the 800th anniversary of Magna Carta. It is the 800th anniversary of Magna Carta this year, I think.
Senator Brandis: That is right.
Senator WRIGHT: Which is something you take a great interest in, I know.
Senator Brandis: I do.
Senator WRIGHT: I will take you to those comments that you made at the awards night for the Australian Human Rights Commission in December last year. You said, 'We can trace our Constitution back some 800 years in the fundamental principles enshrined in the Magna Carta: limiting arbitrary power, holding the executive to account, and affirming the rule of law.'They were comments that you made.
Senator Brandis: I do not know what you are reading from. There was a transcript of my remarks prepared. Certainly I said words to that effect, and those are views that I hold very strongly.
Senator WRIGHT: Given those noble sentiments that you have expressed there, and I think many of us would agree with those, and given your understanding of the statutory functions and duties of the Human Rights Commission in Australia, did the comments that were made by the Prime Minister—personal comments about particularly the President of the Human Rights Commission—and comments by Minister Morrison and Minister Dutton concern you?
Senator Brandis: No, they did not. Can I explain why, please?
Senator WRIGHT: Yes.
Senator Brandis: There is no rule of law issue involved here whatsoever. The Human Rights Commission is an executive agency. People speak of the independence of the Human Rights Commission, and up to a point that is true, but it is not independent of the executive government in the way that, for example, a court is. You have read the statute yourself, Senator Wright, so you would know that there are certain features of the Human Rights Commission that make it perfectly plain that it is not independent of the executive government for all purposes—most obviously section 20, under which the commission is subject to ministerial direction.
This debate has been had for many years, Senator Wright. In 1995 the High Court in a decision called Brandy and the Human Rights and Equal Opportunity Commission made it very plain that the Human Rights Commission, as it was then constituted, does not exercise and cannot exercise judicial power, because it is not constituted as a chapter III court under the Constitution. The Human Rights Commission is an executive agency. It is an agency of the executive government. We do not have, Senator Wright, a quadripartite division of power in this country between the executive, the legislature, the judiciary and the Human Rights Commission. We have a tripartite division of power between the legislature, the executive and the judiciary. The Human Rights Commission is an agency of the executive government which does not exercise judicial power. So although in some respects, particularly the statutory term of the commissioners, it is true to say that it is independent—and the government respects that—it is quite wrong to suggest that there is an analogy between the Human Rights Commission and, for example, a court.
If I might, Senator Wright, on that point, take the opportunity to refute something that Professor Triggs had to say in her opening statement. She said, The commission provides a necessary independent and respected check and balance on government to ensure that our democracy is a just one.'
Senator WRIGHT: And that is what you do not like.
Senator Brandis: Senator Wright, the commission does constitute a check on government in much the same way, for example, as the Auditor-General is a check on government. But the notion that it is a balance, with the implication that it has an independent constitutional standing within our constitutional system, is entirely wrong—a fallacy refuted, among other things, by the High Court in Brandy and HREOC in 1995. It is not a balance against government; it is an agency of government that has a review function.
Senator WRIGHT: Thank you Attorney-General. Can I take you back—
CHAIR: That is the end of your time.
Senator WRIGHT: I hope people listening understood what just happened there.
CHAIR: That is the end of your time.
Senator WRIGHT: People listening will understand that the Attorney-General had a long time to answer a question that I had not particularly asked and I have a follow up question and I cannot ask it now.
CHAIR: Is this a point of order?
Senator WRIGHT: I would ask for another minute, Chair.
CHAIR: No. You have had now 19 minutes, I am sorry.
Senator WRIGHT: Well, you had 30 minutes before—30 minutes for the Chair.
CHAIR: Can I just indicate that we will come back to you. We have until 11 o'clock, under Senate standing orders. Can I just indicate to you Senator Wright that you confused me, the deputy chairman and the secretary in the order. You were not entitled to have that 19 minutes. I just want to indicate my ruling and the way I run these things is that there are two government, two Labor and one Green. You had convinced me that I had badly counted but, on reflection, I had not. So you have had that amount of time. Can I just make it clear that I am going to now call Senator O'Sullivan and then Senator Collins or one of her colleagues. I am then going to call Senator Reynolds and then Senator Collins or one of her colleagues and then Senator Wright or Senator Hansen-Young or whoever—someone the Greens political party.
Senator HANSON-YOUNG: Thank you, Chair. I just have a point of order. Senator O'Sullivan, just prior to going to his questions, uttered here in the committee that he thought that people might like to hear from a man. I just wonder whether Senator O'Sullivan would like to withdraw that comment or reflect upon it? It was pretty inappropriate.
CHAIR: You are not serious, are you?
Senator HANSON-YOUNG: Well, I am serious.
CHAIR: Anyhow, there is no point of order.
Senator HANSON-YOUNG: Well, it stands then, does it?
CHAIR: Senator O'Sullivan?
Senator O'SULLIVAN: Thank you, Chair. Professor Triggs, can I—
Senator JACINTA COLLINS: Sorry, Chair, just before we go on, can I clarify that we are having the lunch adjournment after Senator O'Sullivan—is that correct?
CHAIR: That is probably—
Senator JACINTA COLLINS: After 15 minutes?
CHAIR: It will be 12.35, yes—12.36, probably. Senator O'Sullivan?
Senator O'SULLIVAN: Thank you, Chair. Professor Triggs, I just want to point to a couple of things in your statement. I am not going anywhere with it; I just want to be sure that they are accurate reflections. In your opening, at the start, you said:
In recent weeks questions have been raised about the decision by the commission to conduct a national inquiry …
Would it be more accurate to represent that as 'in recent months' rather than 'in recent weeks'? On your own testimony back in November, this has been challenged. It was certainly challenged before this committee in November.
Prof. Triggs : I stand by my public statements, thank you.
Senator O'SULLIVAN: So there is nothing about this statement you would change? I can rely upon it absolutely?
Senator WONG: She has answered that question. Asked and answered.
Senator O'SULLIVAN: Stand by.
Prof. Triggs : I have answered that question.
Senator O'SULLIVAN: So when you publish here that your inquiry took place from January 2013 to October 2014, I can rely upon that statement?
Prof. Triggs : That is in the report, and I do hope that you have read it, but you will find that that is explicitly set out in the report itself as the precise period that was covered by both the former government and the current government. So that rested from January 2013 all the way through until we finally reported in November.
Senator O'SULLIVAN: All of the evidence that you provided to this place at your last hearing that said that you had not made your mind up to hold an inquiry—and as recently as this morning—until December 2013 is inaccurate or false?
Prof. Triggs : It is not false at all. In other words, the documents we have given you demonstrate unequivocally that the decision made by the commission, by the commissioners and by me, to hold an inquiry was made in December.
Senator O'SULLIVAN: Of 2013?
Prof. Triggs : That is correct.
Senator O'SULLIVAN: So how could you conduct an inquiry that took place from January 2013—your words in the statement?
Prof. Triggs : Yes, what you are perhaps failing to understand is that, while one can make a decision to hold an inquiry, obviously when you hold an inquiry you have to hold an inquiry about the past facts, and those past facts were to be determined from January 2013. So, in other words, we very deliberately made a decision, but one that reverted back to the period of the former government and then, as the inquiry moved forward through the months, it included the acts and activities of the current government.
Senator O'SULLIVAN: So it would be unfair to attribute to you any statement that reflected, 'It had been our plan from the day I arrived at the commission that we would hold a new inquiry to coincide with the 10-year anniversary'?
Prof. Triggs : I think you know, Senator O'Sullivan, that I have thoroughly clarified that transcript and I have made it quite clear how this happened in the documentation. I think that I have answered your questions for about 4½ hours in the last Senate hearings; I shall do so again today. But I can only continue to repeat the evidence that is very clear on the documentation and that confirms the evidence that I have given.
Senator O'SULLIVAN: Professor Triggs, at the heart of the question about the confidence of whether your inquiry was bipartisan or not goes to the date, in your state of mind, as to when you decided to hold the inquiry. There is no question about that. You have indicated today very clearly and unequivocally that that was in December 2013. What I am going to do is take you point by point by point—
Prof. Triggs : Unless I can correct your underlying assumptions of your question, which are quite inadequate—
Senator O'SULLIVAN: Of course you can. You can do that by rejecting that statement. So this statement is: 'It had been our plan from the day I arrived at the commission'—which is June or July 2012—'that we would hold a new inquiry to coincide with the 10-year anniversary of the first.' You can reject that if you wish and say that that is not accurate.
Prof. Triggs : I have said that, when I was finally allowed to return to my office to check the records, those records are now with you and that record is the accurate statement of the entire process of the commission.
Senator O'SULLIVAN: So this statement was inaccurate? I can red-line it? It was inaccurate?
Prof. Triggs : That was a statement that has not been confirmed by the documentary evidence that we have given you. So that really, of course, is something that one is entitled—
Senator O'SULLIVAN: This is going to—
Senator WONG: Chair—Senator O'Sullivan, let her finish.
Senator O'SULLIVAN: This is really helpful. I am going to red-line that as not having been accurate. So the next question was—
Prof. Triggs : I would also like to continue to answer that question if I may—
Senator O'SULLIVAN: Sure.
Prof. Triggs : by asking Ms O'Brien to speak.
Ms O’Brien : The president was asked to clarify her evidence after the last estimates. She took the opportunity to do so, and I could hand up the letter if that assists you.
Senator O'SULLIVAN: No, I am going to go point by point. This is at the heart of this, so we will just work our way through it steadily.
Senator O'SULLIVAN: Look—
CHAIR: Just ignore interjections.
Senator O'SULLIVAN: Well, it is very difficult and gives rise to them accusing then that this hearing is getting a bit unwieldy. In previous evidence, when you then indicated that you had made your mind up to hold an inquiry in the latter part of 2012, your evidence was—
Prof. Triggs : No, that is not the truth.
Senator O'SULLIVAN: Let me quote you where you indicated that within a couple of months of arriving at the commission—
Prof. Triggs : As I have said, that evidence has been clarified. It is in the documentation—
Senator O'SULLIVAN: Yes.
Prof. Triggs : and we have produced all of the documentary evidence—
Senator O'SULLIVAN: So I can—
Senator WONG: Let her finish.
Prof. Triggs : that demonstrates when and where these conversations took place. In other words, if I may say so, you pressed me last time over a very long period and the answers are ones that were subject to absolute clarification, which we have now done in the documentation.
Senator O'SULLIVAN: Thank you.
Prof. Triggs : Perhaps, it is not entirely helpful to continue to repeat matters which are now subject to the documentation.
Senator O'SULLIVAN: It certainly would not be convenient. So, if a statement was made that, 'By June-July 2013, it was clear that we had to hold an inquiry,' that statement would now be inaccurate also? This is the third one I can red-line? This is based on your evidence from last time.
Prof. Triggs : As you have seen in the documentation and in my letter to the chair of this committee, we confirmed our work plan on 26 June 2013. In other words, that is broadly along the lines—I had said 'June' in my previous evidence, and I have now repeated that evidence with a more precise date. But in that date we listed all of the work of the commission. The proposed review, which ultimately became an inquiry, was subject to the completion of earlier work, the Snapshot report to the Attorney and parliament and the completion of certain other activities, subject of course to the budget. It was, if you like, a plan, but one that may eventuate in different ways once the months moved on.
Senator O'SULLIVAN: Then is it fair to say that to use the words 'it was clear that we had to hold the inquiry' is language that is too strong?
Prof. Triggs : It was too strong at that time.
Senator O'SULLIVAN: Thank you. So I can rule out that third date. Professor Triggs, I accept now that by June the planning was starting to firm up for a review that evolved into an inquiry. You were asked and you said in evidence—and I can take you to each piece if we need to refresh your memory—that you had not met any relevant Labor ministers. Then there was evidence that you had met relevant Labor ministers, and it was suggested that it was in the period after the election had been called. Then there was a rebuttal of that—that you had not met Labor ministers, particularly after the election had been called. What is your position on that now as at today? Did you meet—I will be specific—Mr Burke or Mr Bowen after the election was called?
Prof. Triggs : I did meet Minister Burke during the caretaker period, as I said in my evidence in November. But I should say that it was at his invitation, and it was done to brief me and the staff on their plans for offshore processing. That meeting was not inconsistent with the caretaker protocols. I was, of course, very keen to know from him exactly how the offshore processing regime was going to work.
Senator O'SULLIVAN: But you would recall that the question to you about meeting the ministers and your answers to the questions had to do with respect to your state of mind in terms of holding an inquiry. Your evidence to this committee was that you had raised that with them. Is it your evidence now that I should red-line that? Let me do them one at a time. You tell me now that you met Mr Burke after the election was called. Is that correct?
Prof. Triggs : I have just given that evidence; yes.
Senator O'SULLIVAN: You did not meet Mr Bowen?
Prof. Triggs : I did meet Minister Bowen. He was the minister with whom I was dealing when the government was in power.
Senator O'SULLIVAN: But we are talking about the caretaker period here.
Prof. Triggs : You are talking about that. That is fine.
Senator JACINTA COLLINS: Point of order.
Prof. Triggs : No, I did not meet. Why would I meet? He was not the Minister for Immigration and Citizenship—
CHAIR: Excuse me, Professor Triggs. There is a point of order.
Senator JACINTA COLLINS: One of the difficulties here is that Senator O'Sullivan half asks questions. Professor Triggs is answering a more general question than seems to be the one he intends. It would be more helpful to all of us if he clearly specified the time periods he is referring to when he is asking these questions.
Senator O'SULLIVAN: I have. It is in the context—
CHAIR: Hang on, Senator O'Sullivan. There is not a point of order but it is always helpful if witnesses answer the questions that are put to them.
Senator HANSON-YOUNG: As long as they understand them.
Senator O'SULLIVAN: Let me assist my committee colleagues.
Senator WRIGHT: Thank you. I appreciate that.
Senator O'SULLIVAN: Had you been listening, Senator Wright, you would have understood the context of the question.
Senator WRIGHT: I am listening very carefully.
Senator O'SULLIVAN: Perhaps I should say it this way. Let me refresh your memory. All of the questions that I am asking Professor Triggs are in the context of answers that she provided at the estimates hearing in November, where she indicated—her evidence; not mine—that she had met and discussed the prospect of this inquiry with Minister Burke and Minister Bowen in the caretaker period. What today is about—
Senator JACINTA COLLINS: That was not my understanding of that evidence.
Senator O'SULLIVAN: I will find it in the transcript in a moment, and share it with you. Once again the nature of the question may be misunderstood.
CHAIR: Senator Collins, please do not interrupt. It is difficult enough without interruptions.
Senator O'SULLIVAN: I am going back, debunking the evidence of November. I will put a proposition to you. At no time in the caretaker period did you meet with Mr Bowen and discuss the prospects of holding an inquiry.
Prof. Triggs : That is absolutely true.
Senator O'SULLIVAN: Any evidence to the contrary would now be incorrect.
Prof. Triggs : I have looked at my records and confirm what I said at the previous Senate hearings—that I did not meet with Senator Bowen during the caretaker period. I have given very clear evidence that I was invited, by the new Minister for Immigration, Mr Tony Burke, to meet with him to have a briefing. In other words, I was not there to question him or plead with him on any issue. I was there to hear him brief me as to how the offshore processing arrangement was going to be working.
Senator O'SULLIVAN: We have now just cleared it up. There was no meeting with Bowen in the caretaker period—gone, dead, finished.
Prof. Triggs : I have said that three times.
Senator JACINTA COLLINS: It is no great revelation to me.
Senator O'SULLIVAN: Could I direct you to your answers to question No. SBE 14/021, where it says that you met with the Hon. Chris Bowen MP, Minister for Immigration and Citizenship. Is that the correct date—2012?
Ms O'Brien : I am just pulling up the transcript. What was the reference?
Senator JACINTA COLLINS: Senator, I think the witness is asking what the reference was.
Senator O'SULLIVAN: SBE14/021. I just want to confirm that the date provided here is correct. These were in response to questions that I asked you in the context of the—
Prof. Triggs : In that document we have listed all my meetings, with ministers for immigration, between 1 July 2012 and 3 February 2014. There is clearly a meeting between me and the Hon. Chris Bowen on 15 August 2012.
Senator O'SULLIVAN: Not pertaining to the caretaker period. The context of my questions were, for you to take on notice, meetings you had had in the caretaker period. The only one that you had, according to this, is with Minister Burke.
Prof. Triggs : As I have said—
Senator O'SULLIVAN: Please. I'll tell you what. I give you the courtesy—
Senator Bilyk: No, you do not.
Senator O'SULLIVAN: Yes I do. Professor Triggs, in your evidence that occurred in November, you indicated—I am hoping to get the exact point, but the notes are so marked—that you finally made your mind up just a couple of days before you wrote to the Attorney and to the minister for immigration on, I think, 22 January 2014.
Prof. Triggs : That is not an accurate statement.
Senator O'SULLIVAN: Okay, but you do not contest that the statement was made—it is just now the statement is not accurate.
Prof. Triggs : Can we be clear as to which statement you are referring to?
Senator O'SULLIVAN: You might just need to bear with me for a minute. In your previous statement you indicated that your final decision to hold an inquiry was made just days before you wrote to the Attorney and to the minister for immigration, on 22 January 2014.
Prof. Triggs : As I have said, I was answering those questions—with an effort to be helpful—to give you some clear idea of the evolution of the decision-making processes within the commission. When I was able to return to my office and clarify the exact dates, we have done so and they are in all the documentation that we have provided you with.
Senator O'SULLIVAN: Indeed, they are.
Prof. Triggs : I believe it is an appropriate process that when questions without notice are asked it is reasonable to allow the person who has responded to return to check their documentation. That is exactly what I have done. You can see that the decision by the commission, including the commissioners, was made in December and notified through the Attorney, as appropriate, on 22 January. That is all very clearly set out in the documentation that we have given you.
Senator O'SULLIVAN: A statement was made—I think it was within days of 22 January—that the final determination would have been made. I can red line that. There is a lot of luggage in here. This will have been the sixth date perspective that I can red line that was not accurate.
Prof. Triggs : The accurate date would have been, as you know, on the documentation; it is very clear that the decision was made by the commissioner.
Senator O'SULLIVAN: Indeed.
Prof. Triggs : That was just as we went into the Christmas period, and then the letter was subsequently prepared and sent to the Attorney. Those are the facts. There is no obfuscation. It is a very clear statement, on the record, of exactly how the decision-making process was made and the relevant authorities to which we gave notice.
Senator O'SULLIVAN: Sure.
Senator WRIGHT: Excuse me, Chair.
Senator O'SULLIVAN: Would you accept the proposition that—
Senator WRIGHT: Chair, on a point of order: I had understood we were going to lunch. I have arrangements, so I need to—it has been 20 minutes now. I am just wanting to know, because I have arrangements for lunch and I need to know when you will be—
CHAIR: You can go to lunch.
Senator WRIGHT: I am just interested in you letting us know.
CHAIR: There have been so many interruptions.
Senator WRIGHT: That is 20 minutes.
CHAIR: As I do with others, I stop the clock. There have been so many interruptions.
Senator JACINTA COLLINS: But Chair, you have turned the clock off during the interruptions and have been a bit slow about reinstituting the clock.
CHAIR: There have been so many interruptions that this continues.
Senator WRIGHT: That is beyond the 15 minutes.
CHAIR: Everyone is aware that when the bell rings I allow a minute or so to—
Senator WRIGHT: Not for me, but for others. I just want to know when we are going to lunch.
CHAIR: You can go to lunch now, if you like, if that is what concerns you.
Senator WRIGHT: I am not interested in missing this. I would not miss a minute of this, but I think we have a right to know and probably other people would like to know when we are going to lunch as well, given that we are over 15 minutes.
CHAIR: I have already indicated it is 12.35. We are a little bit over, but you can go now if lunch is your concern.
Senator WRIGHT: It is actually 12.40 now.
CHAIR: You are just taking it back further and further.
Senator WRIGHT: Can you tell us when we will be finishing, please?
CHAIR: Senator O'Sullivan will finish in about a minute.
Senator O'SULLIVAN: Professor Triggs, would you accept that some of the negative publicity that was generated, post the 20 November hearing, had to do with the fact that this determination of the date that your mind was made up to hold an inquiry covered dates over a period of about 13 months? There were seven different dates entertained in our examination. Would you accept as a principal that that fed part of this perception that your evidence was not clear, it was ambiguous and conspiracy theories evolved?
Senator JACINTA COLLINS: No, I think an unprecedented witch-hunt did.
Prof. Triggs : No, I do not accept that analysis at all. You are probably forgetting—although, perhaps, it is surprising that it was you, in part, who questioned my findings and recommendations in various reports of arbitrary detention of Indigenous Australians with mental illness and those who have been held in immigration detention. You questioned the wisdom of those findings and recommendations in a public arena.
You might also recall, if you look back to the newspapers in November and December, that a very significant part of the publicity, in relation to the Human Rights Commission, actually concerned those decisions rather than the inquiry in relation to children. Unfortunately, as the inquiry in relation to children had not been tabled, there was very little media interest in it. However, there was very considerable interest in the attention that had been drawn—I believe a very rare attention—to the nearly 100 reports that have been made by me and my predecessors to parliament.
CHAIR: We might leave that there now and we will return at—
Senator Brandis: Sorry, I have a matter of housekeeping, before you adjourn. I said I would obtain a copy of my letter to Professor Triggs with the government's response to the report which, although it does not bear a date, the department's note shows it was signed on—and I assume was sent on—10 February 2015. I table that.
Also, I correct one aspect of my evidence in relation to the numbers. I said that as of today the number of children in detention other than illegal maritime-arrival children was 28. In fact, it is 16. As of this morning, the total number of children in the detention network, in Australia and on Nauru, is 261.
Senator JACINTA COLLINS: Could I clarify the status of the letter or, as the Attorney indicated, the response to the report? Has that been made public on any other occasion and, if so, where?
Senator Brandis: Yes, in the parliament.
Senator JACINTA COLLINS: When was it tabled in the parliament?
Senator Brandis: When it was tabled. It was 11 February, I am told.
Senator JACINTA COLLINS: Thank you.
CHAIR: I allowed you to have that, even though Senator Wright was about to take her point of order on going beyond time.
Proceedings suspended from 12:43 to 13:47
CHAIR: I welcome everyone back to the Senate Legal and Constitutional Affairs Legislation Committee's examination of the 2014-15 budget. We are currently looking at the Australian Human Rights Commission.
Senator WONG: Mr Moraitis, I think we were discussing the second phone call. Is that correct?
Mr Moraitis : We were discussing the first, I think.
Senator JACINTA COLLINS: I thought we had moved on to the second.
Mr Moraitis : Okay, sorry—
Senator WONG: Anyway, you responded to a question from me by saying, I think, 'Resignation was an option'—I think that was the phrase you used.
Mr Moraitis : That was my impression as one possibility, yes.
Senator WONG: Sorry?
Mr Moraitis : That was my impression, yes.
Senator WONG: Was that after the first or the second telephone call?
Mr Moraitis : The second.
Senator WONG: So let's talk about the second telephone call. When was that? Was it the day before the meeting?
Mr Moraitis : As I said, that was Monday, 2 February.
Senator WONG: And the Attorney phoned you?
Mr Moraitis : Correct.
Senator WONG: Where did you say you were when you took the call?
Mr Moraitis : I did not say. If I recall, I was in my office.
Senator WONG: Was anyone else present?
Mr Moraitis : Not that I recall.
Senator WONG: Did you take notes of that telephone call?
Mr Moraitis : I took some notes, yes.
Senator WONG: Where are those notes?
Mr Moraitis : I cannot find them, I am sorry. I had them on a notepad.
Senator WONG: Have you looked for them?
Mr Moraitis : Yes, I have. I can assure you of that.
Senator WONG: How long did the call last, approximately?
Mr Moraitis : About a minute or so.
Senator WONG: And in that minute what did the Attorney convey?
Mr Moraitis : What I said in this morning's statement.
Senator WONG: Could you repeat it for me.
Mr Moraitis : That the Attorney had lost confidence—did not have confidence—in Professor Triggs as chairperson of the commission. He nevertheless retained significant goodwill towards her and had high regard for her legal skills. He wished me to point out that the government was prepared to consider a specific senior role, which was mentioned to me and which I conveyed, for Professor Triggs. That was my recollection.
Senator WONG: So the Attorney had lost confidence in her; there was significant goodwill towards her; he had a high regard—was that the phrase?
Mr Moraitis : For her legal skills, yes.
Senator WONG: And he wanted you to indicate a specific role—you used that phrase.
Mr Moraitis : Yes.
Senator WONG: What was the role?
Mr Moraitis : I would like to tell you what the role is, but I have been told that actually it is quite sensitive, involving other matters that I would rather not go into in public.
Senator WONG: Is that a public interest immunity claim?
Mr Moraitis : The general issue is subject to deliberation.
Senator WONG: Did you tell Professor Triggs what the role was?
Mr Moraitis : Yes. Professor Triggs was aware of the role before I even mentioned it to her.
Senator WONG: So there was a specific senior role that the Attorney mentioned to you—
Mr Moraitis : Correct.
Senator WONG: that the government would consider giving to Professor Triggs.
Mr Moraitis : A senior role, given her legal skills and the respect for her legal skills.
Senator WONG: If she resigned?
Mr Moraitis : No, it was not put in those words.
Senator WONG: What were the words?
Mr Moraitis : I did not use the word 'resign'.
Senator WONG: No, all right. I am asking you: what were the words?
Mr Moraitis : I said what I said in my statement and what I just said now. There were essentially three points that I was asked to make. One was that the Attorney had lost confidence in Professor Triggs as chairperson. He retained significant goodwill towards her and had high regard for her legal skills. In that respect, he was asking me to formally put on the table or mention that there would be a senior legal role, a specific senior role, that her skills could be used for.
Senator WONG: I again press my question: what was the role?
CHAIR: You have answered, Mr Moraitis. You do not need to keep answering.
Senator Brandis: I would be very eager to tell you, Senator Wong, but Mr Reid's counsel—Mr Reid, as you know, is from the Office of International Law—to me and to the secretary is that it would not be helpful for Australia's interests if this were to be debated in a public forum.
Senator WONG: I am not debating it; I just want to know—
Senator Brandis interjecting—
Senator WONG: I had not finished. I just want to know what was offered to her.
Senator Brandis: Is this to me or to Mr Moraitis?
Senator WONG: To any of you.
CHAIR: Mr Moraitis has already answered the question, so he does not have to keep answering the same question.
Senator WONG: If there is a claim of public interest immunity, which actually has not technically been made, I would ask that it be referred to the Senate and I will move on.
Mr Moraitis : I have asked Mr Reid whether I can mention the specific role.
Senator WONG: He is not the judge; the Senate is the judge, actually.
Mr Moraitis : Very well, thank you.
CHAIR: Senator Wong has said she is going to take it to the Senate, so we could move on and live in trepidation until that happens.
Senator WONG: You might want to take your time to actually construct the—
Senator Brandis: Senator Wong, if I may—
Senator WONG: Could I have the clock paused, Chair, while this is happening?
CHAIR: Is this a question?
Senator JACINTA COLLINS: I thought this was actually Senator Macdonald's very issue with the Prime Minister's office.
Senator Brandis: If I may, I have not asked Mr Moraitis to decline to disclose this matter. I am not myself reluctant to disclose this matter, but, obviously, as responsible officers we take counsel from senior lawyers within the Attorney-General's Department. Mr Reid is not a player in this. His advice to us is that there are certain matters that should not be publicly canvassed, so we are going to follow his counsel.
Senator WONG: Mr Reid, what is the basis of your advice that this should not be indicated?
CHAIR: Can I just interrupt. The Senate rules provide that advice to government does not have to be talked about at these hearings.
Senator WONG: What are the reasons you do not want the role identified?
CHAIR: I am sorry, that is the same issue. Advice to government ministers and government is not disclosed—
Senator WONG: It is not advice to government.
CHAIR: Please! I am ruling on—
Senator JACINTA COLLINS: You cannot rule because you are wrong. Take advice.
Senator WONG: Take advice.
CHAIR: I am ruling on the—
Senator WONG: The chair is refusing to take advice from the secretary—let that be noted. The chair is refusing to take advice because he knows that he is not handling this in the right way.
CHAIR: I am ruling that advice to—
Senator WONG: Without advice.
CHAIR: government is not disclosable at these conditions.
Senator JACINTA COLLINS: This is not advice to government.
Senator WONG: The deputy president is indicating that it is not correct. I refer the chair and the officer to the order of the Senate which is read out at the beginning of each hearing—
Senator JACINTA COLLINS: By the chair.
Senator WONG: by the chair.
Senator Brandis: Look, Senator—
Senator WONG: Let me finish, Mr Attorney, if I may. If there are reasons why this ought not be disclosed, I would be grateful if you could explain them to us.
Senator Brandis: Could we give you a private briefing on this?
Senator WONG: No, I do not want a private briefing. I am not going to be party to this.
Senator Brandis: Well, it is not a politically partisan matter, Senator.
Senator WONG: Well, an offer of a position in order to obtain the resignation of a statutory officer is not partisan?
Senator Brandis: That is not correct. That is absolutely not correct. That is absolutely erroneous.
Senator WONG: Can we just go back to this issue?
Senator Brandis: Senator Wong, since I was speaking, if I may finish. Mr Reid has given certain advice to the secretary and me. It is not advice that we have, as it were, encouraged—that is, he as a responsible officer has made a judgement. Now, what I am prepared to do—because I personally would quite like to answer your question—is take the question on notice and we will consider the matter.
Senator WONG: Thank you. Was it a judicial position?
Senator Brandis: No.
Senator WONG: Was it a diplomatic appointment?
Senator O'SULLIVAN: The butler in the lounge with the candlestick here!
Senator WONG: So a specific role was mentioned by the Attorney in his conversation with you?
Mr Moraitis : Yes, and we conveyed that to Professor Triggs.
Senator WONG: Do not worry: I will give you plenty of opportunity to discuss your conversation with Professor Triggs, and I am sure she will have plenty of opportunity to give her version of events again. Had you known about the availability of this specific role prior to the Attorney raising it with you?
Mr Moraitis : No.
Senator WONG: How did you come to the conclusion that you have given evidence about that resignation was an option?
Mr Moraitis : That was my take on the options available from that discussion.
Senator WONG: Did you understand that the role would only be available if resignation took place?
Mr Moraitis : Well, my understanding was that you cannot have two roles in this sort of situation.
Senator HANSON-YOUNG: So it would be—
Mr Moraitis : As I said in my statement, those are the points I made, as instructed.
Senator HANSON-YOUNG: That's a bribe.
Senator O'SULLIVAN: A point of order, Mr Chairman.
Senator WONG: Can we pause the clock, Chair? Thank you.
Senator O'SULLIVAN: The reference by Senator Hanson-Young suggesting to put a slant on the secretary's involvement here as, 'It sounds like a bribe' needs to be withdrawn. Standing orders are very clear on casting aspersions.
Senator HANSON-YOUNG: I will not be withdrawing.
Senator O'SULLIVAN: I would ask that she withdraw it.
CHAIR: I did not hear the—
Senator O'SULLIVAN: She said, 'It sounds like a bribe to me,' referring to the passage of evidence given by the secretary.
CHAIR: Senator Hanson-Young, I did not hear the comment, but if you did say that, then I would ask you to withdraw that and apologise to the secretary.
Senator HANSON-YOUNG: I will not be withdrawing.
CHAIR: Well, can I indicate, Senator Hanson-Young, I will not be calling you again. Well, first of all, can I establish—
Senator HANSON-YOUNG: No, you cannot do that.
Senator WONG: You cannot do that.
Senator HANSON-YOUNG: You cannot just gag senators because you do not like what they say, I am sorry.
Senator JACINTA COLLINS: There is no naughty corner!
CHAIR: Can I establish that you did say those words?
Senator HANSON-YOUNG: I said, 'This sounds like a bribe.' Smells like a bribe, sounds like a bribe—what we are trying to work out is whether it is.
CHAIR: Well, that is a reflection on the secretary—
Senator HANSON-YOUNG: We are trying to work out whether it is.
CHAIR: I ask you to withdraw and apologise and, until you do that, I will not be calling you.
Senator HANSON-YOUNG: Perhaps it was Senator Brandis's idea in the first place, is what we are trying to work out.
Senator WONG: Well, it is.
Senator Brandis: Well, might I—
CHAIR: Whether it is to the secretary or to Senator Brandis, it is equally offensive and I would ask you again—
Senator HANSON-YOUNG: Well, let's go through the evidence. Let's get through the questions and go through the evidence—
CHAIR: Senator Hanson-Young, would you please be quiet when I am making a ruling, and the ruling is that you should withdraw and apologise, otherwise I will not be—
Senator HANSON-YOUNG: On what basis, Chair? I would like to know—
CHAIR: Please do not interrupt when I am making a ruling. Common courtesy and manners would indicate that—
Senator WONG: Except when you interrupt everyone else, Chair.
CHAIR: And the same for you, Senator Wong. I have no hesitation—
Senator WONG: If you had some consistency, Chair, then you might have some respect.
CHAIR: Senator Wong, you are reflecting on the chair, and, unless you apologise, I will not be calling you either.
Senator WONG: What am I apologising for?
CHAIR: Senator Hanson-Young—
Senator JACINTA COLLINS: Well, I asked you to be consistent—
CHAIR: Senator Hanson-Young, are you—
Senator WONG: I apologise for asking you to be consistent.
CHAIR: Senator Wong!
Senator WONG: You asked me to apologise.
CHAIR: I am speaking with Senator Hanson-Young and making a ruling.
Senator WONG: I apologise for asking you to be consistent.
CHAIR: I am not calling you. Sorry for raising my voice, but it is the only way that I can be heard above the yelling from each end of this table. Senator Hanson-Young, are you going to apologise and withdraw?
Senator HANSON-YOUNG: I would like to know on what basis I am being asked to withdraw, when my point—
CHAIR: Because it is a—
Senator HANSON-YOUNG: No. We are trying to—
CHAIR: It is a reflection on either the minister or the secretary, and—
Senator HANSON-YOUNG: Well, let's establish the evidence, and then we can have a conclusion.
CHAIR: You have my ruling, Senator Hanson-Young. You are not withdrawing? Do not expect to be called.
Senator HANSON-YOUNG: Under what standing order do I have to withdraw?
Senator Brandis: Mr Chairman—
CHAIR: Because it is a reflection on the minister and on the secretary.
Senator HANSON-YOUNG: On what basis? I am asking the question.
CHAIR: Because you are accusing them of bribery, as I understand what Senator O'Sullivan has raised, and I think she has repeated it. So we will move on.
Senator Brandis: Mr Chairman, this is not exactly a point of order—I am not at liberty to make points of order—but can I just point out that I have not been asked any questions about this conversation yet, and I hope that I will have the opportunity to respond to you, Senator Wong.
Senator SIEWERT: Point of order.
Senator WONG: You will have the opportunity.
Senator Brandis: Thank you.
Senator WONG: I promise you, George.
Senator Brandis: Thank you.
Senator SIEWERT: Point of order.
Senator JACINTA COLLINS: You did have an opportunity to make a statement earlier, Senator Brandis.
Senator Brandis: Well, not about—
Senator SIEWERT: Point of order.
CHAIR: Senator Siewert, I will come to you as soon as I can get some silence from each end of this table. Senator Siewert on the point of order.
Senator SIEWERT: If you are going to not allow Senator Hanson-Young to ask further questions, because of your ruling, I would like to seek advice from the Senate as to whether you can exclude someone from questioning because they will not withdraw what you consider is inappropriate.
CHAIR: She has deliberately disregarded an order to withdraw an offensive comment of bribery.
Senator SIEWERT: I would like a ruling—
CHAIR: That is the ruling.
Senator SIEWERT: I would like advice from the Senate as to whether you can do that or not.
CHAIR: Well, you can get advice from the Senate, Senator Siewert.
Senator HANSON-YOUNG: Look, Chair, I will withdraw the claim that this is a bribe.
CHAIR: Thank you for that. Senator Wong.
Senator WONG: I think that we were discussing the specific role, which we are not allowed to know. You have agreed, Mr Moraitis, that that was at the Attorney's suggestion, correct?
Mr Moraitis : I was not aware of this. Yes.
Senator WONG: Yes. Now, let's not beat about the bush: I asked you whether or not the offer of the role was linked to the resignation, and you said, 'Well, people can't have two roles'. I am putting to you, so that you have the opportunity to respond, that they were linked, and that what you understood and what was expressed to you by the Attorney was, in effect, she would be given this role if she resigned.
Mr Moraitis : No. I was told expressly three things, as I said. They were those three points: the Attorney had lost confidence in the chairperson; he retained significant goodwill towards her and a high regard for her legal skills; and that there was, in that respect, a senior legal role that she could—
Senator WONG: Let's not beat around the bush. Are you honestly telling this committee that you did not regard your job after that phone call as going to Sydney, seeking Professor Trigg's resignation and offering her another Commonwealth position?
Mr Moraitis : Are you asking me for my view?
Senator WONG: Yes.
Mr Moraitis : My view was that I was following up on an undertaking to Professor Triggs to convey—
Senator WONG: Come on.
Mr Moraitis : And my personal view was that—
Senator WONG: Come on. Not even your evidence backs what you just said.
Mr Moraitis : no resignation would be forthcoming.
CHAIR: Please, Senator Wong, let the secretary finish without interruption.
Mr Moraitis : My personal assessment was that no resignation would be forthcoming.
Senator WONG: What you just said, with respect, does not accord with the evidence you have given previously.
Mr Moraitis : How is that?
Senator WONG: What I would suggest to you is that you understood very clearly that your job was to go to Sydney to indicate that her resignation was requested,\ or that the Attorney had no confidence in her and that she would be offered another position. I am suggesting to you that you knew perfectly well that they were linked.
Mr Moraitis : I did not say that.
Senator WONG: I am suggesting to you that you knew perfectly well that the two propositions—the resignation and the offer of a new position—were linked.
Mr Moraitis : I did not know whether there was an express linkage. All I was asked to convey was that there was a lack of confidence.
Senator WONG: Sorry, what was your answer?—'I did not know if they were expressly linked'.
Mr Moraitis : I did not think there was an express linkage.
Senator WONG: Did you understand there to be a linkage?
Mr Moraitis : As I said, my view was that one could not fulfil the second legal role while doing the first.
Senator WONG: So, they were linked?
Mr Moraitis : One would follow from another, possibly.
Senator WONG: 'One would follow from another'. So, the offer of another position would follow from the resignation.
Mr Moraitis : I have nothing to add to what I said in my statement.
Senator WONG: So you then go to Sydney, you have a meeting with Professor Triggs, and you indicate to her—please tell me your version of the event, of the meeting.
Mr Moraitis : Of the discussion?
Senator WONG: I would like to hear it.
CHAIR: For the fourth time!
Mr Moraitis : I will just repeat what I have said.
Senator WONG: So repetitive questioning from Senator O'Sullivan of Professor Triggs goes unremarked and a second question on an extremely important point to Mr Moraitis is commented on by the chair.
Mr Moraitis : I was asked to convey the view that the Attorney had lost confidence in Professor Triggs as chairperson.
Senator WONG: I am asking you to tell us, and this committee, as best as you can remember, what you said to Professor Triggs, in order, and what she said to you. I appreciate that it was a little while ago, but I would like you to do it.
Mr Moraitis : I will try my best.
Senator WONG: Thank you.
Mr Moraitis : It was a very short discussion about the substance. I said, 'As you recall, you asked me a while ago to seek the Attorney's views about your standing in the commission.' I said that the Attorney had rung me the day before and I said, 'I have arranged to call on you today as a sign of courtesy.' I made those three specific points that I have just mentioned.
Senator WONG: Tell me how you made those three specific points.
Mr Moraitis : I said, 'The Attorney has lost confidence in you, unfortunately. Nevertheless, he retains a significant goodwill towards you for your significant legal skills.' I said that it was obvious to me that he had high regard for her as an international lawyer and, in that context, I had been asked to mention a specific role for her. I did not need to explain that role because Professor Triggs was aware of that role, even though I had not been aware of it beforehand.
Senator WONG: The phrase you just used was, 'in that context, I have been asked to mention a specific role'—so in the context of advising that the Attorney had no confidence in her. I will put it to you by implication: requesting her resignation, at least.
Mr Moraitis : I had not requested any resignation.
Senator WONG: What do you think that telling someone that the Attorney has no confidence in them suggests?
Mr Moraitis : I will tell you what I think—it is conveying the Attorney's view.
Senator WONG: Are you telling us that you did not think you were expressing to her a view that would cause her to resign?
Mr Moraitis : That was one option.
Senator WONG: Yes, that was one option.
Mr Moraitis : To be honest with you, I did not expect that to be the outcome.
Senator WONG: You used the phrase, 'asked to mention'.
Mr Moraitis : Yes.
Senator WONG: So you were asked to mention this prospect of another role—what, just to offer it up as a bit of a prize?
Mr Moraitis : Not as a prize, no.
Senator WONG: What was it then?
Mr Moraitis : It was a reflection of the high regard the Attorney had for her legal role.
Senator WONG: Seriously?
Mr Moraitis : Yes.
Senator WONG: You want Australians to believe that?
Senator Brandis: That is disgraceful, Senator Wong! You should withdraw that. Mr Moraitis is the Secretary of the Attorney-General's Department. He is a highly respected public servant of more than 40 years standing. For you to cast aspersions on his integrity like that is despicable.
CHAIR: I agree, and I would ask you to withdraw.
Senator WONG: I am happy to withdraw.
Senator Brandis: So you should!
Senator WONG: I am happy to withdraw if it assists the Senate, but if I may say, the outrage around that is somewhat out of proportion.
CHAIR: This is not a question, and your time has expired now.
Senator WONG: I am looking forward to the outrage—
CHAIR: Senator Reynolds, you are next.
Senator REYNOLDS: Good afternoon, Professor Triggs. I would like to take a slight change of direction, if I could. I was not here during the November hearings, but I would like to further pursue some of the evidence that was provided this morning by yourself and also by Ms O'Brien.
The first question is in relation to your comments on Operation Sovereign Borders and the impact that that had on your decision to turn this from a review into an inquiry. For the benefit of those who were not here this morning, I want to refresh what you have said because we have covered a lot of ground since them. In terms of the question, in light of the policy approach of the new government, your comments were that the underlying thinking in relation to the policy was that, as a consequence of Operation Sovereign Borders, there was a very considerable tightening of the restrictions of the release of information. You further said that once OSB, Operation Sovereign Borders, got underway it was clear that information was not as readily available, and so it became part of your policy considerations, and that, 'We might use the inquiry power in order to get accurate information about the children.' And you also mentioned that, prior to this point, you actually did have a very good relationship with the department of immigration and the secretary. I just want to have a look at that a bit further. In your very comprehensive introductory comments and statement this morning, you did not mention Operation Sovereign Borders this morning but you did say that there was a multitude of reasons why you changed it to an inquiry. The three that you cited this morning were the high numbers of children in detention, increasing periods of time that the children were being held and this 10th anniversary of the report in 2004. Is that right so far? You highlighted these as the three most important reasons.
Ms O'Brien : There might be a misunderstanding. The evidence given in relation to Operation Sovereign Borders was why we would use the inquiry powers available to the commission. They are just simply the powers to compel the production of documents.
Senator REYNOLDS: I did understand that point that you made. I had gone back and had a look at the testimony from November and your opening statement. I could have missed something because there was a lot there, but there was no statement prior to this on Operation Sovereign Borders being a material factor in your considerations to turn this from a review into an inquiry.
Ms O'Brien : It was a procedural issue, if you like. If we are going to investigate an issue, there are a number of powers the commission could use under its act. We could use a range of powers set out in section 11(1) of the commission's act to promote the public discussion of human rights in Australia, examine enactments. One of those powers which, within the commission, we call the inquiry power, gives us the power to compel the production of documents. We have used all the powers—whether we called it a review or an inquiry, we use a range of those powers. The range of different reasons as to why we might do this project, for example, is different to why we might use the inquiry power. And that is about compelling the production of documents and witnesses.
Senator REYNOLDS: I understand. Exactly as you described was how I inferred the intent this morning. That also came from Professor Triggs's comment that you had observed that things had materially changed in relation to your ability to get information from the department of immigration and, presumably, from General Campbell and his organisation. I think what you have just said has confirmed that: in layman's language, you felt at some point after the new government came in—and, as you said, due to the policy approach of the new government—that you were no longer able to get the information that you had previously sourced from the Department of Immigration and Border Protection.
Ms O'Brien : We may ultimately need to rely on those powers to obtain the information, yes.
Senator REYNOLDS: That was not clear this morning, because this morning you did not say, 'We might not get it in future.' You actually said, 'It was clear.' Professor Triggs actually did say—
Ms O'Brien : Yes, and I am agreeing with you.
Senator REYNOLDS: 'It was clear that information was not as readily available, so it became part of the policy consideration that we might use the inquiry power to get accurate information.'
Ms O'Brien : Absolutely. I am in complete agreement with you. So what happens is: with our general immigration work, there is as sharing of information with the department in which the department provides to our ongoing monitoring work. We had noticed that that information was not being provided as freely as it had been in the past. So that made us think: with this kind of project that we are about to embark on, it is likely that we are going to need our inquiry powers—
Senator REYNOLDS: I will come back—
Ms O'Brien : Sorry, if I could just finish. Because we had not started the inquiry by December; we were just thinking about what the terms of reference would be—
Senator REYNOLDS: Sorry, December?
Ms O'Brien : 2013. The inquiry was not launched until early in the following year. So were thinking about what powers we were going to need to rely on, what the terms of reference were going to look like. We had noticed that information was not flowing as freely, so it looked like we were going to need to use our inquiry power. It was as simple as that.
Senator REYNOLDS: Would it be safe to say then that the situation up to this point, you had some observations—and I will come back to those on Operation Sovereign Borders—that you had a very collegiate and good working relationship? The secretary for the Department of Immigration and Border Protection confirmed that last night. So you had a good working relationship and the information that you needed was freely provided by the department until the change of government and the change of policy in terms of Operation Sovereign Borders. Before we move on, can you just clarify at that point what information specifically did you not get from the government that triggered this concern?
Ms O'Brien : When this passage of evidence took place this morning I think I agreed to take that question on notice to give you some specific examples of information that we had been provided in the past that we were no longer able to access in the future.
Senator REYNOLDS: I accept that you will take that little sliver on notice. We had General Campbell here last night giving evidence and also the secretary. My understanding of Operation Sovereign Borders and the restriction of information publicly was in relation to the on-water operations. Operation Sovereign Borders, as I understand it, is just the on-water operations. So the restriction on information under Operation Sovereign Borders was only not to telegraph to people smugglers what their operational activities were on the water. So that is on water. But Operation Sovereign Borders, as I understand it, did not relate to the operations of the detention networks and the relationship of the department of immigration—Senator Hanson-Young, if you would like to give evidence please feel free to ask the chair, but my question is to Professor Triggs. I please ask you to allow her to finish—
Ms O'Brien : That may well be the case, and I can certainly take it on notice. My understanding—
Senator REYNOLDS: Ms O'Brien, my questions are actually for Professor Triggs because I am trying to work out, as the president, what was in her thoughts, because I am going to come to a series of questions in relation to her thoughts and understandings and interactions with her counterparts in government. If you would not mind, if it is possible, I would like to give Professor Triggs the opportunity to respond directly.
Prof. Triggs : I wonder if we could be clear: what is the question?
Senator REYNOLDS: The question is: Sovereign Borders was on water; what made you think that the department of immigration was going to withhold information so much that you needed to initiative an adversarial inquiry with the power to compel evidence? It seems to be a big jump from that relationship.
CHAIR: I think that is the question. That is clear.
Ms O'Brien : Can I just correct one aspect of that?
Senator REYNOLDS: I am sorry, if you would not mind, I really would like to hear from Professor Triggs.
Prof. Triggs : I think, firstly, we are concerned at your use of the word 'adversarial'. That is not the position at all. It is totally misunderstanding our role.We are not there in an adversarial role. We are there in a non-partisan role to inquire into the impact on the children, and that was really our objective.
Senator REYNOLDS: Thank you, Professor Triggs—
Prof. Triggs : I do need to correct that because it is most misleading and unfortunate—
CHAIR: Thank you; you have corrected it.
Prof. Triggs : and I would very much like to see it expunged from the record. We are not advocates, we never take an adversarial position; we simply try to ascertain the facts from the evidence that is given to us, and we have reported in an even-handed way accordingly. I hope that you too have had a chance to read our report.
Senator REYNOLDS: You can see it is highlighted and marked, Professor Triggs.
Prof. Triggs : I am delighted, Senator Reynolds. That is wonderful. You might be the only one who has.
CHAIR: If I can just get back to the question. The question was: why did you think it was necessary to use your powers to get documents from the government when Sovereign Borders did not preclude that? I think that is it in a nutshell.
Senator REYNOLDS: It is, and Professor Triggs, thank you—
Prof. Triggs : I would very much like to answer your question.
Senator REYNOLDS: I am sorry, I thought you had finished on the point of clarification. Just on that, before we get back to the substantive issue, I take your point—and thank you for that clarification—that my misunderstanding came, I think, from Ms O'Brien's description of going from a cooperative and collaborative working arrangement where information was free flowing to the point that you described as technical point where you had to jump to an inquiry so that you could compel evidence from the department. To me that seems—
Ms O'Brien : It is not a big leap, Senator.
Prof. Triggs : Can I provide some information which might help answer your question?
Senator REYNOLDS: Please.
Prof. Triggs : Everything my colleague has said is correct, but you might also be interested to know—and we will certainly get the letter up to you—that on 17 September 2013 I wrote to Mr Martin Bowles. It is quite an interesting letter because it very clearly demonstrates that as early as 17 September, before the final decision was made—
Senator REYNOLDS: 2013?
Prof. Triggs : 17 September 2013. I had written to the secretary—
Senator REYNOLDS: I am just going through the list of your correspondence in relation to this. What page is that letter of 17 September on?
Prof. Triggs : We have not tabled that letter. The matter did not come up. We are very happy to give it to you. It is about the Snapshot Report, not about the children's inquiry. If you would let me finish my answer, you will understand—
Senator REYNOLDS: So that letter is not in your time line?
Prof. Triggs : No, because it was not in relation to the inquiry. I am trying to answer your question. If I understand it correctly, it is: why did we think that? One of the many reasons for holding an inquiry might appropriately be that we had a drying up of information. Why did we think that? One of the reasons and one of the many answers that one can give to this is that, by September, when we were trying to complete the state of the nation Snapshot Report that I described to you and held up for you, we were very conscious that information was not forthcoming, even as early as that date. So I wrote to Mr Bowles and said that we would be very grateful if he could provide us with information for the purposes of the Snapshot Report. I specifically said how much I appreciated his work in achieving humane outcomes for asylum seekers and looked forward to working with him. Basically, the thrust of that letter—and I will certainly hand it up to you—was to signal the fact that we were already concerned in September that the usual level of information was starting to dry up and we were very worried that we would not be able to complete the state of the nation Snapshot Report.
Senator REYNOLDS: I understand that and thank you for that additional clarification. Could you table that letter. That was just out of caretaker period—correct? So you sent that letter to secretary Bowles just after caretaker period?. What was his response?
Prof. Triggs : I do not recall. I would have to go back—
Senator REYNOLDS: Could you take it on notice as well, because I think his response to that letter would be quite instructive. Clearly, you were not happy with whatever response you got from him to have then taken that next step.
Prof. Triggs : Yes, we had continuing concerns that mounted. It was proving very difficult to get the usual level of cooperation and information that we had received. I say that with great caution because we have always had and I believe now have workable day-to-day relations between the officials of the commission and the department, but at that time things were a little difficult. They were cautious in giving us information
Senator REYNOLDS: So you wrote to him about information drying up. Was that before or after Operation Sovereign Borders had been announced?
Prof. Triggs : I would have to look at the date. I have no idea when Operation Sovereign Borders was announced. I assume it was around that time—but I do not specifically recall.
Senator REYNOLDS: Just so that I understand: you wrote to Martin Bowles on 17 September to say that you had concerns about not getting the information you needed during the caretaker period of government?
Prof. Triggs : No; it was not necessarily during that caretaker period. It was earlier than that.
Senator REYNOLDS: So information had actually—
Prof. Triggs : It was post election.
Senator REYNOLDS: You said previously in your statement here that information had dried up as a result of Operation Sovereign Borders—
Prof. Triggs : It was drying up.
Senator REYNOLDS: Now, as I understand it, it was not sovereign borders. You were saying that information had started to dry up before the caretaker period or during the caretaker period under the previous government.
Prof. Triggs : It was presumably during the caretaker period but it was actually after that as well. As I have tried to explain, this is an evolving and constantly moving environment. We were becoming concerned at not that it had 'dried up' but that we were getting less information, less cooperation.
Senator REYNOLDS: You saw over a period of time, going back even before the caretaker period, that there had been a general drying up—
Prof. Triggs : I would have to check my records; because, again, with regard to precise dates, I would like to check my records. And I would have to ask the staff of the commission at what time did they feel that the weekly meetings were not working. Usually, our staff could pick up the phone to their equivalent and get a very friendly and cooperative response; and, with whatever information they could properly give to us, they did. I need to get some dates, if that would help you, as to when we started to get the feeling that that level of cooperation with information was not at the same level.
Senator REYNOLDS: But clearly if you had written to him 11 days after the caretaker period, you already had considerable issues. I presume you would have rung him. If you had not got an answer or you had got his response, you would have got on the phone to your colleague and said: 'Look, Martin, we've got an issue here. We're not getting the information we need anymore. What can we do to fix it?' What was his response? Did you contact him?
Prof. Triggs : Again, we had good relations. I would have to take it on notice as to exactly what he said.
Senator REYNOLDS: Thank you very much.
Senator JACINTA COLLINS: I know Senator Wong is still in continuation with her earlier questions, but there are a couple of issues that, if she is able to return in the next few minutes, I might deal with in the meantime. Mr Moraitis, can I go back to the phone call you had with Professor Triggs during your holidays, in early January? What was that call, by your understanding, precipitated by?
Mr Moraitis : My understanding was that it was by the adverse media that was happening over that period, and the deliberations in estimates in November-December last year—whenever that was, the last estimates.
Senator JACINTA COLLINS: There was a fair period of time between the November estimates—or were there December estimates too? I cannot recall the precise date—and then early January.
Mr Moraitis : Yes.
Senator JACINTA COLLINS: Was that call conducted on your mobile phone?
Mr Moraitis : Yes.
Senator JACINTA COLLINS: The first call you received from the Attorney, was that on your mobile phone?
Mr Moraitis : Yes.
Senator JACINTA COLLINS: The second call, you indicated, was in your office.
Mr Moraitis : On my mobile phone, in fact.
Senator JACINTA COLLINS: On your mobile phone as well, but you were in your office?
Mr Moraitis : Yes.
Senator JACINTA COLLINS: You indicated earlier that you did not expect an outcome of resignation. Did you advise the Attorney of such when he made the proposal to you?
Mr Moraitis : I would rather not comment on any advice I gave to the Attorney.
Senator JACINTA COLLINS: Did you provide advice to the Attorney on his suggestion that you take that course of action?
Mr Moraitis : I will not mention the advice I have given my minister.
Senator JACINTA COLLINS: No, but I am asking you: did you provide advice?
Mr Moraitis : I made an observation.
Senator JACINTA COLLINS: It looks at this stage that we are left guessing over what that observation may have been. What is the difference—thank you, Senator Marshall—between an observation and advice?
Mr Moraitis : It was an assessment of the situation, and leave it at that—my views of the situation.
Senator JACINTA COLLINS: I am sorry; I am a bit confused here. You have told us that you did not expect an outcome of a resignation, and you have told us you did not convey that to the Attorney at the time, but you did convey some other observation. Is that correct?
Mr Moraitis : No. I—
Senator JACINTA COLLINS: I may have misheard you.
Mr Moraitis : Sorry; could you repeat what you just said?
Senator JACINTA COLLINS: I asked you at the outset—you had already told us that you did not expect an outcome of a resignation. I asked you: did you convey that assessment to the Attorney? If I recall correctly, you said no.
Mr Moraitis : No. My observation, if I recall the situation, was that I did not think there would be any resignation.
Senator JACINTA COLLINS: Yes, and I am asking: did you convey that assessment to the Attorney at the time when he requested you take that course of action?
Mr Moraitis : I would have to recall. I think I did.
Senator JACINTA COLLINS: I am concerned, because when I first asked you that question, I thought you said no.
Mr Moraitis : I do not think I said that.
Senator JACINTA COLLINS: Okay. Hansard will assist us with that.
Mr Moraitis : I am sorry if I left that impression then.
Senator JACINTA COLLINS: We will go to the next point, which is that you did not want to convey advice you may have provided to the Attorney when he made that request of you.
Mr Moraitis : Which one are we talking about? Are we talking about the second discussion now?
Senator JACINTA COLLINS: Yes. When the Attorney requested that you convey the three points to Professor Triggs, my understanding of your earlier comments—and correct me if I am wrong—is that you did not expect an outcome of a resignation at that point in time.
Mr Moraitis : That is my personal view, yes.
Senator JACINTA COLLINS: Yes. And I asked: did you convey that view to the Attorney at the time?
Mr Moraitis : Yes.
Senator JACINTA COLLINS: You did?
Mr Moraitis : Yes.
Senator JACINTA COLLINS: Was there further advice that you provided to the Attorney beyond your view when he requested you take that course of action?
Mr Moraitis : I will not go into any advice I gave to the Attorney.
Senator JACINTA COLLINS: I am not asking you to go into it. I am asking: did you provide advice?
Mr Moraitis : Yes, I gave advice in general terms. Yes. But I will not go into the nature of it.
Senator JACINTA COLLINS: I am sorry; a moment ago you said you expressed a view but you did not provide advice.
Mr Moraitis : In my first discussion with him, yes.
Senator JACINTA COLLINS: No; we have always been talking about your second discussion. My question was: did you provide advice beyond expressing your view about the likely outcome of a resignation to the Attorney on this matter?
Mr Moraitis : I cannot recall any further advice, no.
Senator JACINTA COLLINS: Did you seek any advice about the appropriateness of this course of conduct?
Mr Moraitis : No. I had instructions to convey the Attorney's views about the chairperson, as requested by Professor Triggs, and I did so.
Senator JACINTA COLLINS: But my question was: did you seek advice on the appropriateness of that course of action?
Mr Moraitis : Not that I recall, no.
Senator JACINTA COLLINS: Let us move on. You started with Senator Wong about the meeting that you had with Professor Triggs.
Mr Moraitis : Yes.
Senator JACINTA COLLINS: That was a meeting between you and her. Was anyone else in attendance?
Mr Moraitis : No.
Senator JACINTA COLLINS: And it was at her office in Sydney?
Mr Moraitis : Correct.
Senator JACINTA COLLINS: What time of day was that?
Mr Moraitis : It would have been in the morning, I think—before lunch.
Senator JACINTA COLLINS: When did you request that that meeting occur?
Mr Moraitis : On the Monday afternoon before that.
Senator JACINTA COLLINS: And it occurred on which day of the week?
Mr Moraitis : The meeting?
Mr Moraitis : Tuesday.
Senator JACINTA COLLINS: So the day before.
Mr Moraitis : Yes.
Senator JACINTA COLLINS: Did you indicate, in requesting the meeting, as to the nature of the meeting?
Mr Moraitis : No. I just asked to organise a call with Professor Triggs in Sydney.
Senator JACINTA COLLINS: So you visited the offices in Sydney and had, we have heard previously, roughly an hour-long conversation. Is that your recollection?
Mr Moraitis : It was about an hour, yes.
Senator JACINTA COLLINS: How did that conversation go?
Mr Moraitis : There was a short discussion about a few generic things, if I recall—about holidays or something. Then I said: 'If you recall, you'd asked me in January to seek the Attorney's views about you. I have done so. The Attorney spoke to me yesterday and asked me to convey the following views.' As I have said, they were the following views as I mentioned in my statement.
Senator JACINTA COLLINS: After you went through that, what then happened in the discussion?
Mr Moraitis : In the course of the discussion, when I was discussing that specific role, I did not need to explain that role—that was well known to Professor Triggs, even though, as I have said in my statement, I was not aware of that before it was brought to my attention by the Attorney.
Senator JACINTA COLLINS: When you say Professor Triggs was aware of this specific role, do you mean the fact that there was a pending vacancy? What nature of this role was it that she was aware of?
Mr Moraitis : I can recall this very distinctly, because I was surprised that she was aware of this, and I, as I said, had not been before I had been told about it.
Senator JACINTA COLLINS: I understand that you are saying that Professor Triggs was aware of the role. That could mean a range of things. It could mean that she is aware that such a role exists. It could be that she is aware that the role is currently vacant. It could be that a vacancy is pending.
Mr Moraitis : It is not that sort of role. Unfortunately I cannot comment on the nature of the role. It would be clearer if I could. But, as I said, when I was told about the specific legal role, that was a surprise to me. I was not aware of that. When I raised it with Professor Triggs, I did not need to explain that specific role, because she was aware of that specific legal role. And then Professor Triggs said to me she had no intention of leaving the commission, and I said: 'That's fine. As I said, you'd asked me to seek the Attorney's views and I've done that,' and that was it. That was the generic substance of my instructions.
Senator JACINTA COLLINS: So you were not surprised that she had no intention of resigning, given what you have said earlier?
Mr Moraitis : Not at all.
Senator JACINTA COLLINS: Much of that is conveyed relatively quickly, I would have thought. In an hour, what else was the subject of conversation?
Mr Moraitis : There were a variety of issues, if I recall. To be fair, my focus was on just delivering those three points that I had been asked to convey.
Senator JACINTA COLLINS: Did Professor Triggs convey to you how inappropriate she felt, from her evidence earlier, such an offer was?
Mr Moraitis : Yes. She conveyed the view that she had a role as a chairperson, and I did not dispute that. I respected her role and understand her mandate and function. As I said to her, I was conveying the views of the Attorney as requested.
Senator JACINTA COLLINS: When you say you understand her role and function, why didn't you seek advice as to the appropriateness of the minister's request of you?
Mr Moraitis : Because I had been asked by Professor Triggs to seek an assessment of the Attorney's perceptions or views about the commissioner, and I did that, and I undertook to provide that as quickly as I could to Professor Triggs.
Senator JACINTA COLLINS: Senator Brandis made the point earlier that you have had a long and esteemed career. There is a big difference between Ms Triggs being aware of what has, in part—although I think it was subsequent to period of time—been quite a hateful campaign in some areas and her seeking to gauge how the Attorney reads that as opposed to a suggestion that she resign her office.
CHAIR: What is the question?
Mr Moraitis : I cannot answer the question, Senator—
Senator JACINTA COLLINS: I am attempting to understand why Mr Moraitis did not understand what was being asked of him to convey to Professor Triggs.
Mr Moraitis : As I said, my understanding of what I was asked to convey was those three points. One of the options that would come out from my conveying that was a possibility of the chairperson resigning. In my view that was a very remote possibility. If I may say, for the record, I have a great amount of respect for Professor Triggs.
Senator JACINTA COLLINS: I am sure you do, as do many of us here. Indeed, if I were to express my view about this whole situation I would ask her to please not resign, as has Malcolm Fraser and a series of other eminent Australians, for broader reasons than she herself has mentioned. I do not think it is solely the relation of the Australian Human Rights Commission; I think it is the nature of our democracy that is at stake here.
Senator O'SULLIVAN: Is there a question?
Senator JACINTA COLLINS: Yes, there is, but you will understand, Senator O'Sullivan, that Mr Moraitis essentially invited me to commentary of that character, given his own. Mr Moraitis, what I am attempting to understand is how it did not occur to you that taking that course of action could be regarded as an inducement.
Mr Moraitis : I did not take it as an inducement. It was an explanation of the Attorney's perspective on the chairperson. I was asked to convey a specific legal role, given Senator Brandis's high regard for her legal skills in an area of law which I thought was a good area of law. As I said, my understanding of that was that resignation was one option that could be considered, but it was made very clear to me within the first minute of our discussion that that was not going to be an issue. I said, 'That is fine.' As I said, for the record, I had been asked by her to seek the Attorney's views, which I diligently did in January and I was conveying those, in person, as a sign a respect.
Senator JACINTA COLLINS: I do not think there is any question about the fact that you were conveying the Attorney's views. The question I have, given the nature of some of the reporting and indeed given Professor Triggs's response to your message from the Attorney, is why it did not occur to you that this course of action could be regarded as an inducement.
Mr Moraitis : I do not see it as an inducement.
Senator JACINTA COLLINS: I understand you are saying you did not see it, but you are aware of some of the subsequent reports, aren't you? You are aware, from Senator Wong's comments today and from some of the media reports about this issue, that other observers have regarded it as such.
Senator Brandis: I hardly think that Senator Wong's observations are relevant here, Senator Collins.
Senator JACINTA COLLINS: That was not the only point I was making. And, indeed, Professor Triggs's response. She wanted to remain cautious in terms of the word 'inducement' but it was pretty clear by the nature of her response that she thought that the very request was inappropriate. In fact, I think that was the evidence.
CHAIR: What is the question?
Senator JACINTA COLLINS: I have already asked the question, which is: why did it not occur to Mr Moraitis that the course of action suggested by the Attorney could be regarded as an inducement.
CHAIR: Could I interrupt. I have stopped the clock. What various officers thought and did not think and what they understood by this, that and the other is really not a question for estimates.
Senator HANSON-YOUNG: It is.
Unidentified speaker: Ssh! Ssh!
Senator HANSON-YOUNG: It is a breach of the criminal code is what it is.
CHAIR: The expenditure of Commonwealth money—
Senator JACINTA COLLINS: Come on, Chair!
CHAIR: The expenditure of Commonwealth money in this department. Clearly, some of these issues have to be gone into, and Professor Triggs was subjected to vigorous cross-examination, but this continual asking officers what they thought this might mean, what they thought that might mean and what they thought about this is really irrelevant and, I might say, contrary to standing orders. It is really opinions by the officers of their own opinions of their own hearing. It is really not relevant. I urge officers to stick to the facts. If you have answered the question before just say that. Otherwise, we are going to be here till midnight.
Senator JACINTA COLLINS: Mr Moraitis, what occurred next after your hour-long meeting in Sydney?
Mr Moraitis : I flew back to Canberra.
Senator JACINTA COLLINS: In relation to this matter.
Mr Moraitis : I think I rang the Attorney, or he rang me; he asked me how the meeting went; I said I conveyed his views and that Professor Triggs would remain as chairperson of the commission.
Senator JACINTA COLLINS: Did you convey to the Attorney the nature of Professor Triggs's response?
Mr Moraitis : Not in detail. I said that it was a very short conversation, if I recall, basically conveying the succinct fact that I had had the discussion along the lines that he had asked me to and that Professor Triggs's response was that she would remain as chairperson. And that was it.
Senator JACINTA COLLINS: With respect, that seems to be only part of the story. Did not Professor Triggs relay to you that she thought that such an offer was inappropriate?
Mr Moraitis : I cannot recall that.
Senator JACINTA COLLINS: Did you convey to the Attorney that Professor Triggs thought that such an offer was inappropriate?
Mr Moraitis : No. If I recall, I conveyed to the Attorney my surprise that the specific role that had been mentioned to me was not news to Professor Triggs.
Senator JACINTA COLLINS: Surprise that she was aware that the role existed?
Mr Moraitis : No, that this specific function was there and that this was open.
Senator JACINTA COLLINS: It cannot be interesting absent us knowing what the role is, but hopefully some time will elapse and we will be able to interpret that.
Mr Moraitis : As I said, I was asked if it was a judicial role or a diplomatic role, and I said, 'No,' to those.
Senator JACINTA COLLINS: I understand that, but you still—
Mr Moraitis : I would like to tell you what it was but I cannot.
CHAIR: Mr Moraitis, do not feel compelled to go against advice you have been given, no doubt on good grounds. I understand that both you and the Attorney are happy to do it. Senator Collins, you have a minute left.
Senator JACINTA COLLINS: You do not recall whether you relayed to the Attorney that Professor Triggs felt that the offer was inappropriate?
Mr Moraitis : I cannot recall that, no.
Senator JACINTA COLLINS: Do you recall that she did convey that to you at the time?
Mr Moraitis : I would imagine that that was the case, yes.
Senator JACINTA COLLINS: Do you have any file notes, notes, recollection aids for this whole period?
Mr Moraitis : As I said, I had some notes that I had taken in my discussions with the Attorney and had annotated after the discussion, but I cannot find that note, unfortunately, and I am very sorry for that.
Senator JACINTA COLLINS: You are at least able to corroborate your recollection with your phone records?
Mr Moraitis : Yes, of course. That is metadata, Senator.
Senator JACINTA COLLINS: Exactly!
Senator Brandis: Quite right!
Senator JACINTA COLLINS: So you will be able to tell us what you cannot recall at the moment, which is that either the Attorney rang you or you rang him to convey the outcome of your discussion with Professor Triggs?
Mr Moraitis : After the discussion? My recollection was that it was a phone call but I cannot recall if it was—
Senator Brandis: It was a phone call.
Mr Moraitis : I cannot recall if it was a phone call from me to the Attorney or from the Attorney to me.
Senator JACINTA COLLINS: That is what I am saying the metadata will be able to assist you with.
Mr Moraitis : Point to point, yes.
Senator JACINTA COLLINS: Was the Attorney aware ahead of the meeting that the meeting was occurring?
Mr Moraitis : I cannot recall.
Senator Brandis: I am reasonably certain I was. Remember that I was going to meet Professor Triggs on the Monday and then that appointment had to be cancelled, so Mr Moraitis met her instead.
Senator JACINTA COLLINS: Not at the same time, though.
Senator Brandis: No, the following day. I am quite sure that I was aware that Mr Moraitis was going to be meeting her, yes.
Mr Moraitis : If I recall, it was only because, by process of logic, it had to be on the Tuesday—because I was travelling overseas on the Wednesday for a while.
Senator JACINTA COLLINS: Have you subsequently sought advice as to the appropriateness of undertaking what the Attorney requested of you?
Mr Moraitis : No.
Senator HANSON-YOUNG: Professor Triggs, with regard to the meeting on 3 February with the secretary, you said in earlier evidence that you were quite shocked that it was put to you that the Attorney-General would like you to step down—in exchange, perhaps, for another role. Could you please clarify? We have heard contradicting evidence since then about exactly how it was put to you. Perhaps you could take a moment to refresh your own memory and then you can tell us how the first few minutes of that meeting went?
Prof. Triggs : The first two or three minutes were the usual courtesies—talking about what had been done in January. I had realised that, when I had phoned him earlier, I had interrupted his holiday with his children, so we just talked about that. Then he got to the point very quickly. He said, 'I am here because the Attorney has asked me to seek your resignation'—
Senator HANSON-YOUNG: He used the words 'seek your resignation'?
Prof. Triggs : I am absolutely certain that the words 'would like your resignation' or 'seek' were used. I do not remember what the preambular words were.
Senator HANSON-YOUNG: The word 'resignation' was used?
Prof. Triggs : The word 'resignation' was absolutely crystal clear to me. Then I asked why and he said it was because the Attorney had lost confidence in me and I asked why. That proceeded nowhere because he did not have a reason. So I immediately said that I categorically rejected the suggestion, that I was appointed statutorily for five years and it would be damaging to the commission, damaging to the role of the commission within the democratic process and very negative were I to accept that suggestion. It was absolutely clear that that was the response I gave.
Senator HANSON-YOUNG: Was this 'specific role'—
Prof. Triggs : Very soon. It may even have been when it was first mentioned that my resignation was being sought that it was said that this alternative opportunity would be available. It was within seconds of that that it was mentioned.
Senator HANSON-YOUNG: Did the secretary explain what this specific role was?
Prof. Triggs : No, but we both knew the topic and the issue that would use my skills in that area of law.
Senator HANSON-YOUNG: Was it your understanding that this role would be made available to you if you were to resign?
Prof. Triggs : Yes.
Senator HANSON-YOUNG: How clear was the secretary about that offer?
Prof. Triggs : He did not say anything more than that because I so categorically and immediately rejected the suggestion—it was such an outrageous suggestion that I would denigrate the commission, my role and the statutory independence of the commission by accepting some other job. It was such a disgraceful proposition to me that I was really, frankly, quite angry. But as the secretary has quite accurately said, there was really nothing more to say. I think he knew perfectly well I would reject it. He even said to me that he was rather embarrassed at having to make the suggestion, that he wanted to extend the courtesy to me of getting on a plane and doing it personally—for which I thanked him very much indeed. If I may say so, he conducted our interview with very considerable professionalism and dignity. He did not say or do anything that he should not have done. He did not engage in any excursus. He stuck to the point. He was very embarrassed by it and we both essentially agreed that he was doing his job and I was doing mine. We parted pretty much on that basis.
Senator HANSON-YOUNG: Did he use the word 'embarrassed'?
Prof. Triggs : I think he did but I would not swear to that. It was something that he felt very awkward or embarrassed about doing. I cannot precisely remember the words he used.
Senator HANSON-YOUNG: With an understanding that he knew—
Prof. Triggs : He knew very well that this was an awkward thing for him to do, and it explained in part why he did not do it by telephone—although equally, of course, the Attorney could have done it by phone as well. I felt that he was trying to do professionally what he felt was the best he could do in a very awkward and difficult situation.
Senator HANSON-YOUNG: Did you take away from that meeting a sense of what would happen if you did not comply with the Attorney-General's request that you resign?
Prof. Triggs : No, I did not. There were no follow-ups to that—again, as I said, the secretary was very professional. He just accepted that that was my answer and he would take it back to the Attorney. I obviously gave some thought to what the consequences of this were, because negative remarks had been made about my findings and recommendations in other reports to parliament by the Prime Minister and by the Attorney in the public arena as well as by a senator from this committee. There was a crescendo of public remarks about the work of the commission and so it was obviously very troubling for me. Anybody in my position, particularly a public servant, would say that in those circumstances it becomes impossible to work effectively and I would only bring difficulties to the future of the commission and maybe one thing I would need to consider was to resign as I had been asked. In my mind I rejected that on the basis that to do so would be to give in to the very pressure that the position was designed to stop. I took the view in the end that I would maintain the position that I had had as an instinctive reaction to the secretary's request for me to resign.
Senator HANSON-YOUNG: Secretary, did you feel awkward about having to have that conversation when you knew, as you have already said in evidence, what the response from Professor Triggs would be?
Mr Moraitis : I was not embarrassed—that is probably Professor Triggs's impression of me. I was unhappy with the situation. As I have said many times, including to Professor Triggs, my interest is in ensuring the commission can fulfil its functions. Frankly, I was asked to convey those points that I have said—that the Attorney had lost confidence. If I may say, I never sought resignation—I did not use the word 'resignation' ever.
Senator HANSON-YOUNG: But it is very clear that is what the end result would have to be if she was to take the other role.
Mr Moraitis : That was one option, as I said.
Senator HANSON-YOUNG: What is the other option?
Mr Moraitis : To remain where she is as chairperson and to fulfil her function as chair.
Senator HANSON-YOUNG: The offer that was put was on the basis that she would resign.
Mr Moraitis : As I said, one option was resignation and this was one of the options that emanated from the fact that the Attorney asked me to convey to her that he had lost confidence in her. That was the express language I used.
Senator HANSON-YOUNG: Did you ever consider the possibility that having this conversation with Professor Triggs and offering this role in exchange for her resignation may be considered to be a bribe?
Senator O'SULLIVAN: On a point of order, Chair—
CHAIR: You do not need to, Senator O'Sullivan. Can I repeat that asking officers what they thought someone might have meant or what they thought in their own mind that something that was said might mean to them is entirely irrelevant and should not be part of the questioning. It simply should not be allowed, but I am not going to get into that argument. I encourage officers to ignore the question.
Senator HANSON-YOUNG: Mr Secretary, at any stage did it come to your mind that this might be in breach of the criminal code?
Mr Moraitis : No. It was raised with me by the Attorney and also by Professor Triggs that there were other legal roles available. That was news to me. The specific role that was raised by the Attorney with me was news to me.
Senator HANSON-YOUNG: Mr Secretary, are you familiar with section 7.6 of the Criminal Code?
Mr Moraitis : No. You can read it to me, if you like.
Senator HANSON-YOUNG: Section 7.6—Bribery and related offences.
Senator O'SULLIVAN: Chair, I have a point of order.
CHAIR: What is your point of order, Senator O'Sullivan?
Senator O'SULLIVAN: Chair, the standing orders are clear on this: questions shall not, by nature, contain imputations against the person they are made.
Senator HANSON-YOUNG: No, I—
Senator O'SULLIVAN: No, just one moment. It is quite wrong to leave in these imputations and to have the secretary answer them.
Senator HANSON-YOUNG: I am just asking some questions.
Senator O'SULLIVAN: But the premise of your question that you led before was that he had made an offer that the resignation will meet with this. I have been here all day and the witness has never suggested that he made an offer to exchange a resignation for an appointment, unless I am missing something, Mr Secretary—
CHAIR: Senator Hanson-Young, do you want to speak on the point of order?
Senator HANSON-YOUNG: I have asked the question.
CHAIR: Do you want to speak on the point of order?
Senator HANSON-YOUNG: The secretary has asked me to refer—
CHAIR: Before I rule, I am inviting you to speak on the point of order. You do not want to?
Senator HANSON-YOUNG: What is the point of order?
CHAIR: That you had made an imputation—
Senator HANSON-YOUNG: I have not made an imputation. I am referring to a section of a Commonwealth act.
CHAIR: Okay. Can we just have the question again and you might just think on how it is framed and I will listen intently.
Senator HANSON-YOUNG: I asked the secretary whether he was aware of section 7.6 of the Criminal Code. He asked me to read it to him.
CHAIR: That is fair. Continue reading. I will start the clock.
Senator HANSON-YOUNG: Section 7.6, Mr Secretary, is in relation to the bribery of a Commonwealth public official. Section (1)(b) states:
the person does so with the intention of influencing a public official (who may be the other person) in the exercise of the official’s duties as a public official …
in giving a bribe.
CHAIR: The question is: are you aware of that section? That was the question.
Mr Moraitis : I was not aware of it, no.
Senator HANSON-YOUNG: All right. If I could continue, Mr Secretary. Have you received any advice from within your own department in relation to the conversation that you were asked by the Attorney-General to have with Professor Triggs?
Mr Moraitis : No.
Senator HANSON-YOUNG: Did you at any stage suggest to the Attorney-General that he have this conversation with the Professor himself?
Mr Moraitis : That was the tenor of my discussion with him the first time—I beg your pardon, the second time.
Senator Brandis: Senator Hanson-Young, just to make sure that you do not mislead the witness, you will recall that I had an appointment with Professor Triggs on the Monday morning, which was cancelled relatively late in the previous week. So my original intention was to have the conversation with Professor Triggs myself.
Senator HANSON-YOUNG: Just to be clear, in that second phone call with the Attorney-General, he asked you to convey this message to the professor. Did you at any stage ask the Attorney-General to make this communication message clear himself?
Mr Moraitis : I cannot recall saying that, no.
Senator HANSON-YOUNG: Did you explain to the Attorney-General at any stage what an awkward situation this placed you in?
Mr Moraitis : As I said previously, I sought the Attorney's views about the commission, as requested, and the Attorney was conveying those views to me with a view to me passing that to Professor Triggs, which I did.
Senator HANSON-YOUNG: Attorney-General, I understand that you had a meeting that was scheduled and then subsequently cancelled because of the Prime Minister's Press Club address. You have already outlined that evidence. What was to stop you from picking up the phone and making this request yourself to the professor?
Senator Brandis: I would have preferred to deal with a matter like this face to face for reasons that, if they are not obvious to you, are obvious to me.
Senator HANSON-YOUNG: So you would prefer to send a messenger rather than having the conversation yourself.
Senator Brandis: Senator, Mr Moraitis is the secretary of my department. Mr Moraitis and I work closely together in relation to all matters concerning the administration of the portfolio, including dealing with agencies within the portfolio. I think it is entirely appropriate that Mr Moraitis, as the secretary of the department, should have performed this function.
Senator HANSON-YOUNG: So you did not think it was more important for you to do it yourself?
Senator Brandis: To use your words, Senator Hanson-Young, I did not think it was more important, no. Mr Moraitis is the secretary of the department. I had originally planned to have the conversation myself. I was unable to keep the appointment but in the circumstances I thought it was the sort of matter that I would naturally deal with through the secretary of the department. For example, Senator, if it were the head of another agency within my department I would not think twice about asking the secretary to deal with a matter of this kind.
Senator HANSON-YOUNG: I guess—
Senator Brandis: No, if I may finish without interruption, please. I have a relationship with Professor Triggs. I had seen a good deal of Professor Triggs. As I am at pains to point out to you, I have a high regard for Professor Triggs. It was an awkward situation. I had come to some conclusions and for that reason my initial instinct was that I would have the conversation with her. But it was the kind of conversation that it was the most natural thing in the world for the secretary of the department to have with the head of an agency.
Senator HANSON-YOUNG: Attorney-General, I am just a little perplexed as to why you were going to have the meeting yourself because you thought it was the right thing to do in person.
Senator Brandis: I would have preferred to have done it, that is right.
Senator HANSON-YOUNG: So why not just reschedule the meeting and have the guts to do it yourself?
Senator Brandis: Well, Senator, without rising to the bait of your -
CHAIR: Very commendable technique.
Senator Brandis: Without rising to the bait of your rather unpleasant sneer there, parliament was resuming, I think the following week, and this was a matter that I considered really ought to be dealt with before parliament resumed.
Senator HANSON-YOUNG: Did you ask the secretary to travel to Sydney and meet with the professor face to face, or did you not stipulate how the message was to be conveyed?
Senator Brandis: I cannot remember whether I specifically asked Mr Moraitis to travel to Sydney. I imagine I assumed he would because my appointment with Professor Triggs was in Sydney and that is where the headquarters of the commission are. It is where she works from so I had no reason to believe that she would be anywhere else than in Sydney. Whether I assumed that Mr Moraitis would deal with it face to face or whether I specifically asked him to do so I do not remember. But it was always my expectation that it would be dealt with in a face to face to meeting and I think, given the nature of the conversation, that would have been the courteous thing for him to have done.
Senator HANSON-YOUNG: Thank you, Attorney-General. Professor Triggs, do you have notes of this meeting that occurred on 3 February?
Prof. Triggs : No, I do not have notes.
Senator HANSON-YOUNG: And the secretary does not have notes either?
Mr Moraitis : As I said previously, Senator, I had taken some notes of my discussion with the Attorney and also annotated those notes after my discussion with Professor Triggs. I had those notes for a while and unfortunately I have travelled to three countries in two weeks and I have lost those notes, losing my briefcase by mistake. I am sorry.
Senator JACINTA COLLINS: Sorry, Mr Moraitis. The sound was a bit difficult when you were speaking. Did you say that somebody notated those notes?
Mr Moraitis : No, I had a note of my discussion with the Attorney, as I said, and then I had also made some comments after my discussion.
Senator JACINTA COLLINS: Oh, you had made comments.
Mr Moraitis : Yes. I had this note but, as I said previously this morning, I cannot find those notes. I have searched for them.
CHAIR: Thanks, Senator Hanson-Young. I am passing to Senator O'Sullivan but I am going to pinch a little bit of his time and I have started the clock. There are just a couple of things I want to clarify. Professor Triggs, you have heard evidence—and I do not think you have ever mentioned this—that you asked Mr Moraitis to find out what the Attorney or the government thought of the commission and your presidency. Is that correct?
Prof. Triggs : No, it is not correct.
CHAIR: So you never asked that?
Prof. Triggs : No, as I explained earlier, my concern throughout December and January was not about me or my relationship with the Attorney, which, so far as I was aware on 10 December, was in good shape, especially as he had offered a new project for the commission and had spoken very well of the commission and me and other commissioners at that award. I had no reason to think there was any concern about me personally. As I explained earlier, and I am repeating my evidence, I was very concerned about the misinformation and inaccurate reporting that had been in a particular Australian newspaper. Were it one or two items I probably would not have thought about it, but at that time we had something like 26 or 28 separate items, so I was—
CHAIR: What was your specific request?
Prof. Triggs : I would like to answer your question, if I may.
CHAIR: The question was: what did you ask?
Prof. Triggs : The answer that I would give is that my question to the secretary during his holidays was in order to find out what the department and the Attorney had thought about the criticisms of my findings and recommendations in reports to parliament, and whether he could ascertain just what the Attorney thought about this and what damage he felt was being done to the commission by the inaccurate reporting in that particular newspaper. I can assure you that I was not ringing because I was concerned about my relationship with the Attorney. I had no reason to believe that that relationship was anything other than cordial.
CHAIR: You said you asked the secretary what the Attorney thought about the commission.
Prof. Triggs : No, about the place of the commission in the public arena and about the level of misreporting that had been taking place that was damaging the very important non-partisan position of the commission, and the fact that reports of mine to parliament were being publicly criticised. That is what worried me and that was what was happening throughout December, and earlier in fact, but basically December and January.
CHAIR: So you did not ask to find out what the government thought about you and the commission, but what the government was doing about the criticisms of you and the commission?
Prof. Triggs : I did not ask that question either. I was asking what—
CHAIR: As best you can recall, precisely what did you ask Mr Moraitis to do?
Prof. Triggs : I have given evidence twice in answer to that question. The answer is that I rang because I was very worried about the—
CHAIR: I am not asking about your feelings. What did you ask him? What did you say to him?
Prof. Triggs : I rang expressing my deep concerns about the level of public criticism in a particular newspaper and comments that were being made about the work of the commission. I wanted to find out whether the Attorney himself was worried about that misinformation and inaccurate reporting, whether there was anything he felt he could do about it, and where he felt things were going with the commission, coupled with the question—and this was January: can you please tell me when our children's report will be tabled? Because we were so worried that it would be out of time.
CHAIR: As best you can recall—as Mr Moraitis has been asked to do—what exactly were your words to him? I am not asking for it as a commentary? You cannot ask Ms O'Brien as she was not there. In your words what exactly did you say to him?
Prof. Triggs : I am not sure what you are referring to, but I did not ask Ms O'Brien anything.
CHAIR: This is what I want you to say, 'Mr Moraitis, I am concerned at what The Australian is writing and I would ask that you ask the Attorney—' whatever. I want you to put what you said in the first person.
Prof. Triggs : I believe I have answered that several times now. It is on the Hansard record. You can check that. I have been absolutely clear—
CHAIR: You have been giving an editorial. You have been talking about yourself in the third person. I want to know what you actually said to Mr Moraitis.
Prof. Triggs : I have just given you that evidence as carefully as I can. The essence being that it was not about me personally. It was 'Would he find out from the Attorney—'
CHAIR: Okay, say, 'Mr Moraitis, would you find out from Senator Brandis—'
Prof. Triggs : As I said, I have given that evidence. I can keep repeating it.
CHAIR: This is the difficulty Professor Triggs. You are talking about yourself in the third person. I want to know exactly what you said—I said this, I said that, I asked this—because from your explanation I can well understand Mr Moraitis's interpretation that you were saying 'What does the Attorney thing about me and the commission', and you have got the answer from Mr Moraitis. I am really keen to find out exactly, as best you can recall, what your words were. I know you had some trouble last estimates remembering exactly what happened. Ask me what I said yesterday and I would not be able to do it! But I am asking you, to the best of your ability, what you—
Senator Hanson-Young interjecting—
Unidentified speaker: That is gratuitous—
Senator HANSON-YOUNG: Who is chairing the chair while the chair is not chairing?
CHAIR: Do you understand that, Professor Triggs. Forget the interjections, which are unruly. Can you say in the first person, as best you can, what exactly you said?
Prof. Triggs : I have given my testimony. I am not going to engage in the exercise that we did for nearly five hours last time—
Prof. Triggs : in which I was questioned over and over again until you forced answers from me.
CHAIR: We forced answers from you! Okay.
Prof. Triggs : I will not engage in that process again. I will ask for the courtesy of being allowed to refer to my testimony that I have given on a number of occasions.
CHAIR: Thank you Professor. It is okay to ask Mr Moraitis time and time again the same question about which words he actually used, but I see that there seems to be different standards from each end of the table. Professor Triggs, you said that Mr Moraitis used the word 'resignation'. Mr Moraitis denies that. It is up to anyone who is listening to form their own view on who is telling the truth. I know what my view is, but we will leave that aside. You said in your evidence that it would be 'damaging to the commission if I resigned'. How do you think the commission will look after the release of this inappropriately called 'Forgotten Children' report?
Prof. Triggs : It is a hypothetical question. I have no idea what is going to happen in the future.
CHAIR: You were worrying about damaging the commission if you resigned. How do you think the commission will end up? Do you think it will be damaged by the release of the 'Forgotten Children' report.
Senator WONG: Point of order, Chair. I think you are asking the officer for an opinion, which you have actually ruled out in relation to a number of other questions. 'What do you think?'
CHAIR: There is no point of order.
Senator WONG: On what basis?
CHAIR: There is no point of order.
Senator WONG: Because you just want to be biased. Is that how it is? You cannot rule on yourself.
CHAIR: Professor Triggs, you said in your own words, 'It would be damaging to the commission if I resigned.' I am asking you, in the same line, if it is damaging to the commission following the release of the 'Forgotten Children' report?
Prof. Triggs : No, and the reason for that is that now at last the report is in the public arena and we are able to ask the public to read our report. It is credible, objective, based on medical evidence and on the departmental data. The report stands on its own, it speaks for itself, and I am now very confident that the report is in the arena—
CHAIR: So the commission has not been damaged.
Prof. Triggs : It is in the arena and therefore the commission will in fact—
Senator WONG: Point of order, Chair. Let the witness finish.
Prof. Triggs : The commission will be strengthened, I believe, by our absolute determination to stand by our statute and to continue our work—
CHAIR: I have got that. Would you answer my questions please and not just wander off.
Senator WONG: Point of order, Chair. Could the witness please be allowed to finish.
CHAIR: As I said to the secretary of the department yesterday, these estimates are for senators to ask questions of officers.
Senator WONG: Your behaviour is a disgrace.
CHAIR: Would you please let me finish. Your rudeness, Senator Wong, is typical of your rudeness in the Senate.
Senator WONG: People cannot interrupt you, but you can interrupt Professor Triggs. So you can interrupt everyone else, but no-one can interrupt you.
CHAIR: Professor Triggs, you have answered the question. You do not believe the commission was damaged, which was what I asked, not for a lengthy explanation of your reasons for thinking that.
Prof. Triggs : You asked whether it would be damaging—
CHAIR: Who selected the name 'Forgotten Children'?
Prof. Triggs : We discussed various alternatives amongst the inquiry team and we agreed that that was the appropriate name given what had happened to the children.
CHAIR: And the fact that the evidence from the department and every fair observer is that the children have been far from forgotten—they have been released from detention since the government changed—
Senator Singh interjecting—
CHAIR: It is a matter of fact.
Senator SINGH: You would not know a fact if it was staring you in the face.
Senator WONG: I do not know that Professor Triggs has to—
CHAIR: Do you see what I have to put up with in this committee. I get yelled at from either end!
Senator SINGH: We feel so sorry for you!
CHAIR: Professor Triggs, I am asking you in a situation where this government has released so many children out of detention and has spent such a lot of time, effort, concern and money on their welfare. How could anyone possibly say they are forgotten?
Senator SINGH: You missed the length of detention issue after all—
CHAIR: I am asking Professor Triggs. If you want to give evidence, Senator, get yourselves on the witness list. Professor Triggs?
Prof. Triggs : I am not sure I really understand your question. What is it you are concerned about?
CHAIR: You called the report 'Forgotten Children', and you have explained why. I am saying that in light of these children being released from detention in very substantial numbers by the current government, and the fact that the current government has spent so much time, effort, compassion and money in looking after the health of these children, how can you say that they have been forgotten.
Prof. Triggs : The report covered the period of January 2013 through to about October 2014. So we were dealing with children who on average now have been held for one year and six months—those that remain. They have been held for a very, very long time.
CHAIR: But they have hardly been forgotten.
Prof. Triggs : If I could compare that with, for example, United Kingdom practice, where the maximum is 72 hours, to leave children in detention, as some remain in detention, for one year and six months I think amply justifies the title of 'Forgotten Children'.
Senator O'SULLIVAN: I would like to address a question to the Attorney. Senator Brandis, have you had a chance to peruse the opening statement by the president?
Senator Brandis: Yes, I have.
Senator O'SULLIVAN: Would you feel comfortable making broad observations in relation to it, given the nature and circumstances of the discussion that has been occurring?
Senator Brandis: There are a couple of points in the opening statement that I would like to address, but before I do can I correct a statement that Professor Triggs made a few moments ago. She referred to the Prime Minister and me having made negative remarks about—whether it was her or the commission I am not sure. I have never made any negative remarks. I have been very, very careful ever since the November estimates, until today, not to make negative remarks about either Professor Triggs or the commission, not for want—
Senator WONG: 'I entirely agree with the Prime Minister's remarks.' Maybe you should tell the truth, George.
CHAIR: Senator Brandis, sorry to interrupt you, but can I again ask the Leader of the Opposition in the Senate, who you would think would know better, not to continually and discourteously, and against standing orders, interrupt while one of the witnesses is speaking. Please do that or I will have to consider alternative means to have you abide by the standing orders, Senator Wong.
Senator WONG: I would invite the Attorney to perhaps tell the truth.
CHAIR: I will even seek the advice of the Deputy President on how to control your consistent interjections that are disorderly and contrary to standing orders. Senator Brandis.
Senator Brandis: Thank you, Mr Chairman. I will continue, and I expect not to be interrupted by senators who should know better. I have been very careful not to make negative remarks—
Senator WONG: I entirely—
Senator Brandis: about either Professor Triggs or the commission, notwithstanding many invitations, I might say, to do so by journalists. Professor Triggs is wrong about that. I have, in fact, as a matter of deliberate decision, kept out of the media as a commentator in the period since the last estimates—
Senator WONG: Point of order. I have a point of order.
Senator Brandis: when there has been a great deal of—
Senator WONG: Point of order.
CHAIR: One moment, Senator Brandis.
Senator WONG: Thank you. Chair, the Attorney is misleading the Senate. He expressly indicated on the public record he agreed with the Prime Minister when the Prime Minister attacked Professor Triggs in the commission, so that is completely at odds with what he has just told us.
CHAIR: There is no point or order.
Senator Brandis: And Senator Wong knows there is no point of order.
CHAIR: It is again part of a campaign of disruption. But continue, Senator, please.
Senator Brandis: Thank you, Mr Chairman. As a matter of deliberate decision, after the debacle of the November estimates I decided to refrain from any public commentary on the commission or on Professor Triggs, notwithstanding many solicitations to do so from journalists and much encouragement to do so from my political colleagues. Some of my senior colleagues, including the Prime Minister, including Mr Dutton, including other backbench colleagues like Mr Christensen, made very heated criticism of the commission and, when invited to comment on it, I refrained from doing so. I just wanted to correct that.
I will turn, Senator O'Sullivan, to Professor Triggs's opening statement—and, by the way, I am not going to go through it chapter and verse, and the fact that I do not comment on some parts of it should not be taken as acceptance of what is said in those parts I do not comment on. But there is one paragraph in particular I want to comment on, and it is the fourth paragraph on the first page, where Professor Triggs begins by welcoming the release by the government of about 700 children in the last few months. She goes on to say:
We hope that our inquiry has played some role in encouraging this change in policy. However, on the latest figures available to the commission, about 330 children remain in closed detention in Australia and Nauru …
There are several errors in that statement which I wish to correct. First of all, there have not been about 700 children released; there have been more than twice that many—1,482 as of today. On the last day of August 2013, which is the closest date to the 2013 federal election I can obtain figures, there were 1,743 children in detention in Australia on Manus, on Nauru and on Christmas Island. Today, there are no children in detention on Christmas Island, there are no children in detention on Manus and there are 261 children in detention in Australia and on Nauru. So the number is not about 700; it is almost 1,500. That is the first point. The second point—
Senator JACINTA COLLINS: That is as of today.
Senator Brandis: As of today.
Senator JACINTA COLLINS: Well, that was not what was in the opening statement.
Senator Brandis: The second point is: Professor Triggs said, 'We hope that our inquiry has played some role in encouraging this change of policy.' There are a couple of points to be made about that, Senator O'Sullivan. First of all, there has been no change of policy. This government's policy in relation to children in detention is very simple.
Senator HANSON-YOUNG: Lock them up.
Senator Brandis: It can be summed up in two propositions. Stop the boats and release the children. Stop the boats and release the children. That is what we have done. Not one child has gone into detention under the Abbott government because no boats have arrived under the Abbott government. Every child of the—
Senator HANSON-YOUNG: Actually, 53 children have been in detention under your government.
Senator Brandis: 1,482 who have been released from detention is a child who was locked up in detention during the period of the Labor government—so zero children put into detention by the government and 1,482 released. That is our policy. There has been no change of that policy. More than 85 per cent of the children who were in detention when we came into office have been released. That is the second point I wish to make.
CHAIR: Excuse me, I am struggling to hear from you because of the constant interjections from the end of this table. I am not quite sure what I can do, apart from asking Senator Hanson-Young to leave—
Senator HANSON-YOUNG: How about Senator Reynolds?
CHAIR: to stop the consistent interjections that really make it almost difficult to me to hear you.
Senator HANSON-YOUNG: As long as you pull your own senators into line.
CHAIR: Can I please ask you to cease your discourteous and contrary to standing orders attitude and behaviour here and allow the witnesses to give their evidence uninterrupted. Thank you, Senator Hanson-Young.
Senator HANSON-YOUNG: Order, chair!
CHAIR: Do you have a point of order?
Senator HANSON-YOUNG: Yes, I do.
CHAIR: What is it?
Senator HANSON-YOUNG: Fairness in chairing. If you are going to berate me, berate your own senators as well.
CHAIR: That is not a point of order. Senator Brandis, I apologise that I am unable to keep—
Senator HANSON-YOUNG: You might treat your wife like that, but you do not treat other senators like that.
CHAIR: this committee in check with these constant interjections. Short of asking Senator Hanson-Young to leave, I am relatively powerless. Senator Brandis, please continue.
Senator Brandis: Further, Senator O'Sullivan, in relation to that observation, we hope that our inquiry has played some role in encouraging this change of policy. As I pointed out, there has been no change of policy. Our policy to stop the boats and release the children has been apply consistently since the election of the Abbott government. However, I am sorry to disappoint Professor Triggs and those who worked on this inquiry, but the inquiry has played absolutely no role whatsoever in influencing the government's thinking.
That is because the government's policy of releasing children put into detention by the Labor Party was adopted upon the election of the government and has been pursued consistently since that time. For all the effort that has gone into this report, it has played absolutely no role in the government's thinking. That is because what the government has been doing for a year and five months now is what Professor Triggs' report belatedly called upon the government to do. Today, there are only 261 children left in detention and they are being released steadily. As I say, more than 85 per cent of the children locked up by the Labor Party have now been released.
Lastly, Professor Triggs refers to 330 children remaining in closed detention in Australia and Nauru. In fact, as I said before, as of today the number is 261 and that is steadily diminishing. There are many other aspects of the opening statement with which I wish to take issue with, but those are empirical observations. Each of the observations Professor Triggs has made and the part of the statement to which I have referred is factually wrong.
Senator WONG: Mr Moraitis, I think in response to my colleague, Senator Collins or possibly Senator Hanson-Young, you gave evidence about a second set of notes which appear to have been lost. The first set of notes—
Mr Moraitis : There was no second set of notes.
Senator WONG: Perhaps I can take you through what I understood to be the evidence and, if it is incorrect, obviously you have got the opportunity to indicate that. I understand that there was one set of notes that you took in your phone call with the Attorney-General on 2 February. You said that you wrote those on your notepad, but you have lost those notes. Is that correct?
Mr Moraitis : There was one set of notes. Yes.
Senator WONG: You were then asked whether or not you took notes on the meeting on 3 February. I thought you said that you had lost those notes as well.
Mr Moraitis : No. It was the same piece of paper or a notepad.
Senator WONG: It was a notepad that had both notations of the discussion with the Attorney-General and then notations of the discussion with Professor Triggs.
Mr Moraitis : It was not a notepad. It was a couple of pages, which I had available after the meetings. It was just to jot down a few points.
Senator WONG: Do you remember what you jotted down?
Mr Moraitis : It was pretty much along the lines of confirming what I had said.
Senator WONG: When did you realise that you had lost those notes?
Mr Moraitis : It was about a week ago.
Senator WONG: You did not look for them prior to a week ago?
Mr Moraitis : I beg your pardon?
Senator WONG: When did you first look for them?
Mr Moraitis : About a week ago.
Senator WONG: What prompted you to look for them?
Mr Moraitis : Because I had moved several series of note papers around in my briefcase because of my travels and I could not locate them.
Senator WONG: What prompted you to look for them?
Mr Moraitis : I just wanted to have them, because I would have kept them.
Senator WONG: For estimates or because there was some media speculation? Was there something external which prompted you to look for them?
Mr Moraitis : No. It was because I wanted to keep the notes. That is why I kept them in the first place.
Senator WONG: Right. You took the notes overseas.
Mr Moraitis : No.
Senator WONG: I thought, in response to one of my colleagues, you said that you went overseas as part of your explanation for why you had lost the notes.
Mr Moraitis : Yes. I did not lose the notes overseas, as far as I know. I kept the notes somewhere where I have not been able to locate them.
Senator WONG: I do not understand the connection between going overseas and losing the notes, unless you took them overseas. If so, can you explain it me?
Mr Moraitis : No. I have been trying to find those notes.
Senator WONG: I am asking you to explain your answer. You say, as part of a response to a question about the notes, that you had lost them and, as part of that answer, you proffered the explanation that you had gone overseas. You are now telling us that you did not take them overseas. I am trying to work out the connection between going overseas and losing the notes, which you drew.
Mr Moraitis : That is because if I have material—which I have an briefcase or in folders—that I do not need for my travels, I would leave them somewhere behind in Australia. Unfortunately, I cannot locate these notes.
Senator WONG: But you are saying that you did not take them overseas.
Mr Moraitis : Correct.
Senator WONG: How do you know that if you have lost them?
Mr Moraitis : Because there would be no reason to take them overseas.
Senator WONG: There is no reason to lose them either.
Mr Moraitis : Correct.
Senator WONG: Do you often lose notes?
Mr Moraitis : No comment.
Senator WONG: Do you often lose notes?
Mr Moraitis : Sometimes I do, but I usually do not.
Senator WONG: I assume that a requirement would be for officers in the department to take notes of important meetings. It is a meeting with the statutory officer in which you are indicating to the officer that the Attorney-General does not confidence in her and you are offering her another job. Do you reckon that might have been something you would want to keep notes of?
Mr Moraitis : Yes, I did keep notes.
Senator WONG: No, you have not.
Mr Moraitis : But I have not been able to locate them. I am sorry.
Senator WONG: You did not keep notes. You took notes, but you have lost them.
Mr Moraitis : Thank you.
Senator WONG: Thank you?
Mr Moraitis : If that is your assessment, yes.
Senator WONG: I am giving you the opportunity to provide me with a different assessment.
Mr Moraitis : I took notes. As I said this morning, I took note of my discussion with the Attorney-General after my discussion with Professor Triggs. I annotated those notes, put them aside and have not been able to locate them since.
Senator WONG: Did you discuss your conversation on 2 November with the Attorney-General, in which his lack of confidence and the offer of another job was raised with you, with any other officer of the department prior to your discussion with Professor Triggs?
Mr Moraitis : Yes. I had a discussion with my deputy, Mr Fredericks.
Senator WONG: When did you have that discussion?
Mr Moraitis : On the day I had the call from Senator Brandis.
Senator WONG: How long after the discussion?
Mr Moraitis : I cannot recall. It would have been soon thereafter.
Senator WONG: What did you tell him?
Mr Moraitis : Pretty much what I had been asked to convey to Professor Triggs and that I was travelling to see her tomorrow.
Senator WONG: Mr Fredericks, did you take notes of your discussion with the secretary?
Mr Fredericks : No, I did not.
Senator WONG: Can you tell me what the secretary told you in that discussion?
Mr Fredericks : In essence, it was the three points that the secretary has conveyed in his previous evidence.
Senator WONG: Was the word resignation used in that conversation?
Mr Fredericks : It was not.
Senator WONG: Apart from Mr Fredericks, did you have a discussion with any other member of your department?
Mr Moraitis : No.
Senator WONG: Did you have a conversation with anybody else?
Mr Moraitis : No.
CHAIR: I assume that she means about this issue. I am sure you have had some conversations with your family on different things!
Senator WONG: In relation to the meeting with Professor Triggs, did you have a conversation with anyone after that meeting?
Mr Moraitis : As I said, I had a discussion with the Attorney-General. It was a very quick discussion.
Senator WONG: I am sorry, I was watching this; but I think I took a phone call in my office while I was watching this evidence. Can you just remind me what you say the conversation with the Attorney-General was?
Mr Moraitis : It is on the record. I cannot recall exactly what I said. It was a very short discussion.
Senator WONG: But you informed him that she had said no?
Mr Moraitis : Pretty much, yes. The Attorney rang me and he asked me if I had a meeting. I said yes and I conveyed the points. The president would remain as president; that was my assessment.
Senator WONG: Who said that?
Mr Moraitis : I did, to the Attorney.
Senator WONG: So, you told the Attorney that the President would remain as the President.
Mr Moraitis : Yes. I might have spoken to Mr Fredericks about this as well, after the discussion. I had a discussion with Mr Fredericks after my meeting with Professor Triggs to debrief him on my discussion.
Senator WONG: Was there anyone else you had a conversation with in the department about the two points—that is, the lack of confidence and the job offer?
Mr Moraitis : No.
Senator WONG: Well, Mr Reid obviously knows what the job offer was, because his advice is the basis on which—
Mr Moraitis : No, that is not right. I have never spoken to Mr Reid about any of this.
Senator WONG: How did Mr Reid just give you advice, then—
Mr Moraitis : I asked him a specific—
Senator WONG: If I can just finish: Mr Reid gave the advice to not disclose the position that was offered. Presumably when he gave that advice he knew which position was being offered. When was he told that?
Senator Brandis: Senator Wong, you are making a series of assumptions here, some of which are incorrect.
Senator WONG: Tell me which ones are incorrect.
Senator Brandis: That a position was offered. I have offered you a private briefing so that you can be fully aware of the circumstances. If you were fully aware of the circumstances you would not be asking some of the questions you are asking. You have declined that briefing.
Senator WONG: Mr Moraitis, I am not trying to be difficult. When I asked you which position was offered, the advice from your FAS was that there were reasons you could not tell me that. I am not asking that of you now, but I am assuming that he gave that advice knowing what the position was.
Mr Moraitis : No, I asked—
Senator WONG: So, he does not know the position? So how can he give the advice if he—
Senator Brandis: The more accurate characterisation, if I may say so, is 'role'.
Senator WONG: Well, I am happy to use 'role' if that would be easier. Okay. Are you telling us that Mr Reid gave advice to you that you could not tell this Senate committee which role Professor Triggs had been offered without knowing what the role really was?
Mr Moraitis : Yes.
Senator WONG: Is that right, Mr Reid?
Mr Reid : That is right.
Senator WONG: You do not know which role it is?
Mr Reid : I know what it relates to in general terms, but I do not know what role we are talking about.
Senator WONG: How can you give advice that there is a public interest immunity issue with—
Senator Brandis: Senator Wong, if you would accept the private briefing I had offered you—
Senator WONG: I am not going to be party to this. I think this is grubby, and I will not take a private briefing on it. Let's make that clear.
Senator Brandis: My understanding is that you are a former member of the National Security Committee of cabinet.
Senator WONG: I am.
Senator Brandis: Good. Then you should be responsible enough to understand that there are certain matters that are not appropriately canvassed in this arena. I would not offer a private briefing to Senator Hanson-Young, for obvious reasons, but I do offer a private briefing to you, because I respect your seniority in the political system. The fact that you choose not to accept that offer and therefore pursue a matter on a deliberately false premise reflects poorly on you.
Senator WONG: I am not actually asking at this point—so that everybody is clear, watching this extraordinary set of answers—what the role is. What I am asking is how an officer can give advice to another officer that something ought not be disclosed when he does not know what the role is.
Mr Reid : The Secretary asked me whether it was appropriate for him to disclose the general nature of a particular issue that is currently being considered by cabinet. My advice was that it was not appropriate to disclose that issue. I understand that the role relates to that issue.
Senator WONG: Mr Attorney, can you explain why, if you had lost confidence in Professor Triggs, you asked the Secretary to canvass another role with her?
Senator Brandis: Thank you for asking me, at 21 minutes to four, the first question you have directed to me on these matters. Yes, I can, and I will very willingly do so. As I have said to other senators, I have had a good and cordial relationship with Professor Triggs, as I think she herself has acknowledged.
Senator WONG: I think that might have finished.
Senator Brandis: Well, I hope not.
Senator WONG: You publicly attacked her in an estimates hearing—
CHAIR: Please, Senator Wong, can you cease the conduct you continually engage in in the chamber, and that is continually interrupting and interjecting, and let the witness answer the question that is being put to him.
Senator Brandis: By the way, I do not regard anything I may have said today—which is, admittedly, critical of Professor Triggs—as of the nature of a personal attack.
Senator WONG: Well, I beg to differ. It is a disgraceful—
CHAIR: Senator Wong, it is not your call, and if you keep interrupting I am going to ask you to leave these hearings.
Senator WONG: Well, I am not going to leave.
CHAIR: Senator Brandis, it is your call, and I hope that you can finish answering the question without interruption from anyone here.
Senator Brandis: I hope so too. And Senator Wong, I want to give you a very full answer so as to leave no stone of inquiry unturned here. I have had a good and cordial relationship with Professor Triggs—
Senator WONG: Until you hung her out to dry.
Senator Brandis: I continue to have a great deal of respect for Professor Triggs both as a public officer and, in particular, as a very distinguished international lawyer. However, I had reached the conclusion—very much to my own regret, I might say—that after the November estimates hearings, and from what I knew was being said about Professor Triggs within the government at all levels, it was not tenable for Professor Triggs to continue in the role of President of the Human Rights Commission, simply because she had lost the confidence of one side of politics as a result of certain of the matters she admitted to in the November estimates hearing, in particular, what could only be seen in my view and in the view of many colleagues who spoke to me as a partisan set of decisions in relation to the timing of the report into the forgotten children, as it came to be called.
Senator WONG: Could I just ask one question?
Senator Brandis: No, I have not finished my answer.
Senator WONG: Perhaps an alternative might have been to stand up to the witch-hunt. How about that?
CHAIR: Senator Wong, would you please leave? I have asked you time and time again not to interject—
Senator SIEWERT: You can't do that!
Senator WONG: I am not leaving.
CHAIR: not to breach standing orders, and you continually disrupt this hearing of a Senate committee.
Senator SIEWERT: You cannot chuck anybody out of the Senate, so you cannot throw anyone out of here.
CHAIR: Senator Wong, I would ask that you would remove yourself so that you will no longer—
Senator HANSON-YOUNG: Chair, you have no power to throw anybody out.
CHAIR: And Senator Hanson-Young, I would appreciate it if you would, again, stop interjecting and interrupting.
Senator JACINTA COLLINS: I think you should take advice, Chair.
Senator HANSON-YOUNG: I am just pointing out that you do not have the power to throw anybody out.
CHAIR: Senator Brandis, please.
Senator Brandis: Are you inviting me now to respond to the question that had been asked of me by Senator Wong?
CHAIR: Yes, the answer that you were in the course of giving, and the other one is an interjection, which should be ignored.
Senator Brandis: I am trying to ignore all interjections, because this is an important matter, and I think the public are entitled to know precisely what the sequence of events was. So, after the November estimates, and in particular arising from two matters: first of all, the decision was to the timing of this inquiry, which could only, in my view, be regarded as designed to favour one side of politics at the expense of the other, whether deliberately or through an error of judgement—I give Professor Triggs the benefit of the doubt, and I assume it was an error of judgement—and secondly, meeting with ministers during the caretaker period, in breach of the caretaker conventions. As a result, in particular, of those two admissions, but also because of the numerous inconsistencies in the evidence that Professor Triggs gave at the November hearing, it became very clear to me that Professor Triggs, in the role of President of the Human Rights Commission, had lost the confidence of one side of politics, the particular confidence being that the commission would act in a non-partisan manner.
Senator JACINTA COLLINS: Which it has.
Senator Brandis: I do not attribute malice to Professor Triggs. I think it was a regrettable but catastrophic error of judgement. Nevertheless, it happened. It was admitted to in November, in this very committee room—
Senator JACINTA COLLINS: That is rubbish.
Senator Brandis: And as a result—
CHAIR: Senator Collins, can you also please abide by the standing orders. I do not know what it is with the Labor Party and the Greens. You seem incapable of following the standing orders.
Senator JACINTA COLLINS: No, we would like to see the Attorney stop misleading the Senate.
CHAIR: Senator Collins, while I am talking, please do not interrupt.
Senator JACINTA COLLINS: Well, you are happy to do so.
CHAIR: It is a continuation of this complete disrespect for the standing orders of the Senate. Now, Senator Brandis, would you please continue with your answer. And I am simply unable to understand how I can control the leader of the opposition and senior senators from the opposition and the Greens in continuously breaching standing orders. Standing orders are there so that we can get these things done in an orderly and statesmanlike manner, but—
Senator JACINTA COLLINS: Well, perhaps if the chair stopped misusing his role, he could set a good example.
Senator Brandis: If I may continue, Mr Chairman—
CHAIR: That is what I am inviting you to do, and, again, I am almost inclined to shut these hearings down if I cannot get—
Senator Brandis: Well, please do not do that.
CHAIR: If I cannot get the committee to abide by standing orders, there seems to me to be little alternative. But Senator Brandis, please continue for the moment.
Senator Brandis: As I said earlier, it is, in my opinion, an absolutely essential condition in order for the Human Rights Commission to operate that it commands the confidence of both sides of politics that it will not act in a politically partisan or biased manner. And by Christmas time, following directly Senator O'Sullivan's long series of questions to Professor Triggs at the previous estimates, it was obvious to me that Professor Triggs, in the role of President, had lost the confidence of one side of politics. There was a near-universal view on my side of politics—and, by the way, a view also held by some on the Labor side of politics—that Professor Triggs's position had become untenable. Now, that is a matter of some sadness to me, because we have had a good relationship. But I reflected at length during January, the first half of which I was on leave, about what to do about the situation. But it was obvious to me that if the President of the commission did not command the confidence of one side of politics—and in fact the Labor side of politics—her position was untenable.
Meanwhile, in January, from two entirely different sources, I got word that Professor Triggs was herself considering her position. Those two sources were, first of all, from Mr Moraitis. You have heard Mr Moraitis's evidence of what he understood Professor Triggs had said to him when she raised with him the question of his position. I know that is a matter of disputed evidence between the two of them now, but what Mr Moraitis told the committee he said to me is what he did say to me. So, that was one of the bases on which I was led to believe that Professor Triggs was considering her position.
Secondly, I was informed, on condition of anonymity, by numerous sources within the Human Rights Commission that that was so and that Professor Triggs was taking counsel from individuals about her position and about what she should do. In particular, I was told that she was concerned and had raised concerns with an individual about the reputational damage she may suffer if she resigned or stood aside as President of the commission. All of this, I might say, was against the background of very savage criticism of Professor Triggs by individual members of the government and, as Professor Triggs has acknowledged, by a very, very strongly expressed view in the newspapers—in particular but not exclusively in the Australian—about how untenable her position had become.
Informed by those two sources—that is, Mr Moraitis and those within the commission who contacted me on condition of anonymity—as well as by my own assessment of where Professor Triggs stood in view of her evidence at the November estimates and the lack of respect for her within the government following that estimates hearing, I reached the conclusion that her position was untenable. I made an appointment to see her, and you have heard about that. I was unable to keep that appointment, so I asked Mr Moraitis to have the relevant conversation with her, and you have heard about that. In relation to the question that has been raised, and misrepresented, of what else Professor Triggs could do, my lack of confidence in Professor Triggs was in her handling of the role of president and how she had managed to steer the commission into a position—and this was seen by virtually everyone I spoke to on my side of politics, and some people I spoke to on the Labor side of politics, who raised the matter with me—in which its reputation for non-partisanship had been compromised. Therefore her position had become untenable.
My regard for Professor Triggs personally and my esteem for her as a distinguished international lawyer were undiminished—and are undiminished. I had heard from sources within the commission, as I said before, that Professor Triggs was concerned about damage to her reputation were she to stand aside against this barrage of press, in particular, and political criticism, and I did not want to see her reputationally damaged.
I had the conversation with Mr Moraitis, which he has related to you. It was my wish that Professor Triggs, having reflected on her position, would recognise that it was untenable and was doing the commission harm. However, it was not my wish that Professor Triggs be reputationally damaged. And so, as a matter of goodwill towards her and in earnest of my good intentions towards her, I did say to Mr Moraitis that I hoped Professor Triggs could be encouraged or would be willing to serve the government in other capacities, and that, if she stood aside from the commission, that did not reflect a lack of confidence on my part in her ability as a lawyer and, in particular, as an international lawyer.
CHAIR: Thank you very much for that answer to Senator Wong's question. Senator Wong your time has expired. Senator O'Sullivan you have the call.
Senator O'SULLIVAN: I do have questions for Professor Triggs, and you—thank you, Attorney—have just made a contribution in relation to the thrust of those questions. We have heard from Professor Triggs and we have heard from the secretary about these versions of these discussions. Do you have anything that you could contribute in an open way that might assist us in bringing these positions closer together?
Senator Brandis: Senator O'Sullivan, I cannot unscramble the egg. I am responsible, as Attorney-General, for 28 agencies, and, like any minister, I am responsible for making sure those agencies operate as well as they can possibly operate. For reasons that I have explained, I find this quite difficult because of my affection for Professor Triggs—and I do not wish to embarrass her. For reasons that I have explained, I do not consider that, under her leadership, the Human Rights Commission has conducted itself in such a way that passes the Caesar's wife test, that passes the test of being accepted by both sides of politics to be above politics. Therefore, I considered that her position had become untenable, and I hoped that she might reach the same conclusion in the interests of the Human Rights Commission. But I have no desire to reflect on her professional reputation as an academic lawyer, which I continue to hold in high regard, or as an eminent citizen of this country, which I continue to hold in high regard.
I do not have an answer to your question, Senator. I do not know where we go from here. I think Professor Triggs does need to put the interests of the commission ahead of any other consideration, but that is entirely a matter for her. She does have statutory independence. I do not allege that she has engaged in misconduct—not for a moment. I do not allege that she has engaged in misconduct. But, as the portfolio minister responsible for the Human Rights Commission, I actually would like to see it have a better relationship with the government and actually to be more focused on things that are of more immediate concern to more Australians.
That is why, for example, I have sent a major reference exercising my power of ministerial direction under section 20 of the Australian Human Rights Commission Act to the commission to look at discrimination against older Australians and Australians with a disability. I have discussed that with Commissioner Ryan, who sits beside me. My announcement that the government would send that reference to the Human Rights Commission—and it has now been sent—made at the Human Rights Awards event last December was welcomed.
Senator O'Sullivan, you and I know that there are some people on the non-Labor side of politics who would just as soon not have a Human Rights Commission. There are some, but I think they are a minority and I am not one of them. I want the Human Rights Commission to work as well is it can to fulfil its statutory charter as usefully as it can and to concern itself with projects that actually mean something to the mainstream of the Australian people and will make a material difference to their lives, not inquiring into a problem that the current government has largely solved.
Senator O'SULLIVAN: Professor Triggs, do you want to make comment on the suggestion that you were contemplating your future and had discussions with people other than the secretary about the prospects of your future at the commission?
Prof. Triggs : No, mainly because that is not true. But I would also like to correct the record, if I may. I have been absolutely clear that I spoke to no Labor ministers during the caretaker period, with the exception of Minister Burke at his request. That is all clearly documented. He wanted to give me a briefing. That is not, as I understand or was advised, contrary to the protocols. That was the only time I spoke to a Labor minister during the caretaker period. Of course I spoke to them before that.
May I also say that I believe I am very able to carry out the work of the commission and that I have the support of the commissioners and the staff. May I also say that, as I pointed out very clearly in my opening statement, the work of the commission goes on despite this issue in relation to this very important report that we have produced. But, in addition to that, the commission has gone about its daily work in a thoroughly professional manner. I listed those tasks but I did it very briefly. I are more than happy to do it again.
Senator O'SULLIVAN: There is no need for that.
Prof. Triggs : I would like to because there seems to be some misunderstanding—
Senator O'SULLIVAN: You can seek to—
Prof. Triggs : I would like to complete answering the question—
Senator O'SULLIVAN: Professor, you can seek the leave of the chair—
Prof. Triggs : because there has been a suggestion—
Senator BILYK: Point of order.
Senator WONG: Point of order.
CHAIR: Hang on, there are 100 points of order from my left. I call on Senator Bilyk.
Senator BILYK: Chair, isn't Senator O'Sullivan interrupting the professor? Not 10 minutes ago you berated Senator Wong for allegedly doing the same thing, so I would like some consistency in your chairing. It is four o'clock; I do not think it is too late to start having some consistency in the chairing.
CHAIR: Senator O'Sullivan, do you want to respond?
Senator O'SULLIVAN: I do.
Prof. Triggs : I have not finished my answer—
Senator BILYK: You are still interrupting. You said not 10 minutes ago that people should not be interrupted.
Senator O'SULLIVAN: I am speaking to a point of order.
CHAIR: Senator Bilyk, you have raised a point of order which I have to adjudicate on. Other senators are allowed to make the submission on your point of order. Senator O'Sullivan has indicated to me that he wants to make a submission on your point of order, and that is what I am calling him to do.
Senator O'SULLIVAN: My reference to the professor was that this now long answer is—
Senator WONG: Nowhere near as long as the Attorney's.
Senator O'SULLIVAN: not in response to the question I asked.
Senator BILYK: You cannot direct her how to answer.
Senator O'SULLIVAN: My question—and I will make it more pointed now; I was trying to take a gentle course—is this: is it your—
Senator BILYK: The professor had not finished her answer, Chair.
CHAIR: Well, I have not finished my ruling. As I indicated to the Secretary of the Department of Immigration and Border Protection and other witnesses yesterday—and I have done this today—these hearings are for senators to ask questions of officers, and we would like officers to answer our questions. It is not an opportunity for officers to have a general talk about whatever they might want.
Senator BILYK: You cannot direct the professor how to answer.
CHAIR: If Professor Triggs feels that she has been misrepresented and wants some time to address that later, I am always amenable to a request to do that. But, for the moment, because senators have limited time, we really need to ask witnesses to address the questions. Now, as I understand it, Professor Triggs has answered your question, Senator O'Sullivan. So perhaps we could go on to the next question.
Senator BILYK: Can we ask the professor if she has actually answered the question?
Prof. Triggs : I would very much like to answer the question.
Senator O'SULLIVAN: 'Did you have a discussion with anybody about resigning?'—that is the question.
Prof. Triggs : I would like to explain the work of the commission, which is well beyond—
CHAIR: No, I am sorry, Professor Triggs. The question was: did you talk to anyone else about resigning? I think you have said no.
Prof. Triggs : That is why I do not really understand the question. I have answered that question. I was trying to ask, with your indulgence, Chair, if I could possibly respond to some of the inaccuracies in the Attorney's address.
CHAIR: Some inaccuracies, you say. If you want to do that, we will go to you when Senator O'Sullivan has finished.
Senator O'SULLIVAN: Professor Triggs, I have marked now all of the anomalies from our previous discussion which I think have given rise to many of the difficulties. I think it is only fair that I continue to give you the opportunity to strike down statements on the record made by you if it is your position now that they were not accurate. Do you have a copy of the Hansard record?
Prof. Triggs : Yes, I do.
Senator O'SULLIVAN: I direct you to a statement—and I can lead you to it, if needs be—where I questioned you about a trigger for the inquiry. Your answer was that:
There was no trigger.
Prof. Triggs : There was no one trigger.
Senator O'SULLIVAN: You said there was no trigger. I am happy for you to strike that down. That is the purpose of this. You said that:
… I wanted to call an inquiry and I could not call that inquiry as we approached caretaker mode. It was simply inadvisable to do so.
Do you accept that in your evidence today under examination by Senator Reynolds you have laid down a number of issues that triggered a transition from a review to an inquiry, using the commission's powers?
Senator BILYK: Asked and answered.
CHAIR: What is the question?
Senator O'SULLIVAN: The question is: do you accept that today you have given evidence that there were issues—I referred to them as 'triggers'—that caused it to transition from a review to an inquiry?
Prof. Triggs : My evidence has been given. It is in the documentation we have provided you with. It is in statements I have made. It is an answers that I have given for the last seven hours.
Senator O'SULLIVAN: I accept that.
Prof. Triggs : I have repeated and repeated the various factors that led to the final decision in December. I do not think I can add anything further to the record.
Senator O'SULLIVAN: You indicated that—
CHAIR: You indicated in your evidence in November—
Senator O'SULLIVAN: Let me direct you—
CHAIR: I just need to—
Senator BILYK: Just ask her the question.
CHAIR: I am seeking clarity so that the witness and the rest of us can understand the question. Are you talking about the Hansard report of the last estimates?
Senator O'SULLIVAN: Yes.
Senator WONG: You do not even pretend to be impartial!
Senator O'SULLIVAN: Can I direct you to the—
Senator Bilyk interjecting—
Senator O'SULLIVAN: Look—
CHAIR: Keep going.
Senator O'SULLIVAN: You can take up my 15 minutes , but we can be here until 11 pm. It will not matter; I will get to it.
Senator BILYK: That is alright; I am here until 11 pm too.
Senator O'SULLIVAN: I direct your attention to page 83 of the Hansard from 20 November. What pre-empted my question is that earlier today in evidence you indicated that one of the reasons that influenced you to hold the inquiry was that there was data showing that the children were in detention for longer periods on average. Do you stand by that statement?
Prof. Triggs : That is true.
Senator O'SULLIVAN: I direct you to the second-last paragraph on page 83 where you said:
That was only relevant when we knew what the length of detention was.—
which is relevant to what you said—
By February, from the departmental figures we realised that the period of detention was growing, and that was in 2014.
The critical point that I want you to comment on is that that evidence was not available for that. So if the evidence was not available before that—that being February 2014—how did it influence you to decide to hold an inquiry when the decision was taken in December some three months before?
Prof. Triggs : I think we have been very clear that, with every week or month that the children were detained, it was obvious as a matter of statistical evidence of the numbers of children that they were being held for a longer period of time. Of course the exact departmental figures were not always available immediately, but it was certainly very clear by January and February how long the detention periods were. We were also aware that by November and December the weeks and the months were starting to stack up.
We had much clearer evidence from the department by February. That was also another factor in holding the inquiry so that we knew how long the children had been in detention, broadly speaking, since September. Then, we really had to do the simple maths ourselves to see how it was enlarging. I have given this evidence on numerous occasions and I have given you graphs that set all of this out. We can talk about these numbers, but one difficulty for the commission is that we do not have departmental figures. We are totally dependent on the department to give us these figures but we were getting relatively clearer figures in February. I have answered this question on a number of occasion, and it is on the record.
Senator O'SULLIVAN: They are different though.
Prof. Triggs : No, I reject that totally.
Senator O'SULLIVAN: You gave evidence in November that, once a decision was made to hold an inquiry, you would have immediately told the minister. Do you recall making that statement? I can direct you to the page and paragraph if you need—page 87 paragraph 4.
Prof. Triggs : I have clarified all of these matters in my letter to the chair of this committee on 10 December and I refer you to that evidence, which sets out the dates and information very clearly and accurately, and it is supported by all of the documents.
Senator O'SULLIVAN: Thank you. Would you refresh your memory from that paragraph, where you said, 'I would have immediately told the minister.'
Senator WONG: Chair, a point of order. It is four o'clock, and Senator O'Sullivan continues to badger the witness.
CHAIR: What is your point of order?
Senator WONG: My point of order is that this question has been asked and answered. She is entitled to answer as she sees fit—
Senator Brandis: You asked Mr Moraitis the same question about 10 times, Senator Wong.
CHAIR: Senator Brandis, you are correct but not helpful. My ruling is that there is no point of order.
Senator O'SULLIVAN: Professor, have you refreshed your memory from the transcript—
Senator WONG: She does not have to answer the way you want her to.
Senator O'SULLIVAN: where you said that you would have immediately told the minister?
Prof. Triggs : The record has been corrected in my letter of 10 December, and that is an accurate statement of the circumstances.
Senator O'SULLIVAN: Let me ask the question differently: have you read that passage of the transcript from November?
Prof. Triggs : I am not exactly sure which passage you are referring to.
Senator O'SULLIVAN: I have clearly referred you to it. Go to paragraph 4, if you would be kind enough—
Prof. Triggs : Which page are you on?
Senator O'SULLIVAN: I am on page 87, which is where I indicated I was to you before.
Senator BILYK: You do not have to be so rude.
Senator O'SULLIVAN: There is a strategy here, and I am not going to bend to it. If you could refresh your memory from the last part where you said, 'I would have immediately told the minister.'
Ms O'Brien : If I may, the document provided by the president and dated 10 December indicates that the president informally—
Senator O'SULLIVAN: I am sorry, Ms O'Brien, but this is the fifth time today.
Senator WONG: Chair, a point of order. The witness should not be interrupted and berated by the senator in this way. He should stop bullying people.
Senator O'SULLIVAN: Dear, oh dear, Penny.
Senator WONG: Stop bullying them.
Senator O'SULLIVAN: Settle down.
Senator WONG: I am not going to settle down; you ought to stop bullying them.
CHAIR: There is no point of order. There was a question asked of Professor Triggs, not of Ms O'Brien. If Senator O'Sullivan had wanted Ms O'Brien to answer, he would have directed the question to her. He has not done that. Did you get an answer from Professor Triggs?
Senator O'SULLIVAN: No, but I will help her more.
Senator BILYK: Yes, he did. It was not the one he wanted.
Senator O'SULLIVAN: Professor Triggs, do you have page 87 of the transcript of November open in front of you?
Prof. Triggs : I do.
Senator O'SULLIVAN: Do you see the second entry where your name appears before it? The first one says Professor Triggs; the second one says Professor Triggs. Do you have focus on that entry?
Prof. Triggs : Yes, I can read that.
Senator O'SULLIVAN: Would you follow that to the end of the paragraph. Can you see the words, 'I would have immediately told the minister'?
Prof. Triggs : Yes, as I said, I can see.
Senator O'SULLIVAN: Let me give you a minute now to read it in the context of your answer, because it says:
…once any decision was made to hold an inquiry I would have immediately told the minister.'
Prof. Triggs : I am not sure what your question is.
Senator O'SULLIVAN: It is coming.
Prof. Triggs : I think it would be very helpful if you were to provide me with a question.
Senator O'SULLIVAN: Did you immediately tell the minister once your decision was made to hold the inquiry?
Prof. Triggs : The answer is that he was told before, and that is set out in my letter of 10 December.
Senator O'SULLIVAN: The minister was told that you had made a decision to hold the inquiry before you made the decision to hold the inquiry?
Prof. Triggs : What we did at first was give a notification. This is all in front of you. I have given you this evidence on several occasions, and it is on the letter of 10 December. It is very clear—
CHAIR: Could you please answer the question now.
Prof. Triggs : I am reading then from what I have already provided you with. If I can direct you to page 2 of that letter, and it is the second paragraph—
Senator O'SULLIVAN: What is the reference on that?
Prof. Triggs : It was the letter of 10 December 2014 to the Senate.
CHAIR: We are over time, but—
Prof. Triggs : You will see in the second paragraph that I have given you a very precise answer to that question. It documents and makes clear that what I have said is strictly accurate.
Senator O'SULLIVAN: When was this tabled?
Prof. Triggs : I am sorry if you have not read this letter, but it does seem that many of the critical documents have not been read.
Senator O'SULLIVAN: When did you tender this?
Prof. Triggs : This was written on 10 December as part of the process.
Senator WONG: She has referred to it a number of times.
Senator O'SULLIVAN: How would we have—
Prof. Triggs : You have the letter. I am sorry if you have not read it yet, but if you were able to—
Senator O'SULLIVAN: Where would I have the letter, Professor?
Senator SIEWERT: Professor Triggs tried to table this letter this morning and you said she could not.
Prof. Triggs : No, this was—
CHAIR: As I understand it, this letter was sent to the secretariat.
Prof. Triggs : Yes.
Senator SIEWERT: Yes.
CHAIR: When did the secretariat receive it? In the last couple of days I understand.
Ms O'Brien : No, on 10 December last year.
Prof. Triggs : I have repeated this date several times; it is 10 December. It seems that you have not read it, but that is the critical letter in which absolute clarification is made, and it indeed clarifies the answers that I gave in the previous November—
CHAIR: Saying that your original answer was wrong, and this is the truth?
Prof. Triggs : No. Senator Macdonald, you have again, I am afraid, misunderstood the letter, and I would suggest that you read it, along with the report. We were very, very clear—
CHAIR: I have indicated why I will not bother to read the report.
Prof. Triggs : How can you know that the report is not worth reading if you have not read it—or even read the foreword or the first chapter?
CHAIR: I have seen excerpts of it, but it is so inaccurate as to make me think that the rest of it would not be worth reading.
Prof. Triggs : That is a very unfortunate decision to take, but I would like to reiterate that we have provided this letter on 10 December, and I very much had hoped that the members of this Senate committee would have been given that letter and would have read it so that they were aware, before they came to this meeting, of the precise information and documentation that we have spent a great deal of time and resources preparing for you at your request.
Senator HANSON-YOUNG: Apologies, Professor Triggs. They only care about bullying.
CHAIR: Thank you, Professor Triggs. Senator O'Sullivan, your time has finished and you will have to come back to it at a later time.
Senator O'SULLIVAN: I will come back to it.
Proceedings suspended from 16:15 to 16:48
CHAIR: I call back to order this meeting of the Senate Legal and Constitutional Affairs Legislation Committee dealing with the estimates for 2014-15. We are examining the Human Rights Commission. I thank Senator O'Sullivan for raising this issue with me. We have since had a private meeting of the committee. It is a long time since I was involved in a court case, but Senator O'Sullivan tells me the rules these days are that the committee has a duty of care not to question particular individual witnesses for long periods of time. I did indicate to Professor Triggs earlier that we would give her the opportunity to respond to some of the things that Senator Brandis and others might have said, and that would be the first thing on the agenda tomorrow. The secretary, following the meeting of the committee to ask the secretary to do this, has put a proposition.
As a result of a discussion by the secretary and various witnesses, the committee has decided that we will now suspend the examination of the Australian Human Rights Commission. We will have a spillover day at some time to be determined by the committee, at which time we will recall the Australian Human Rights Commission and will continue on from where we have left off. That is the decision of the committee. Senator Wong?
Senator WONG: Thank you, Chair. I would like to indicate that we would also obviously want the Attorney and the secretary present for that spillover.
CHAIR: It is a date we will have to work out with the committee, the Attorney, the secretary and the Human Rights Commission—
Senator WONG: Sure. I just want to make sure that is on the record.
CHAIR: and us, and try to find a time in a busy Senate calendar. That is what we will do, and we will let everyone know about that. Senator O'Sullivan wants to raise a point of order on that decision?
Senator O'SULLIVAN: No, I concur with that decision. It was the prospect of going to the hard dinner mark that I disagreed with.
CHAIR: All right. That did not happen. The Human Rights Commission can leave. I thank you all for your attendance today. It has been a long day. We appreciate your involvement and your assistance to the committee. We will see you again sometime in the future and we will work with you to find a date that suits everyone. Mr Moraitis, I think you are pre-empting me, but go ahead.
Mr Moraitis : I need to attend NSC between 5 o'clock and 7 o'clock, and Mr Fredericks will sit in my stead.
CHAIR: Yes. I was just going to get to that. Both the minister and Mr Moraitis have to attend a National Security Committee meeting. The committee was aware of that and we had rearranged the program to take that into account. Thank you, Mr Moraitis. Senator Brandis is being replaced by Senator Marise Payne—a very good choice, if I may say so, Senator Payne—and Mr Moraitis will be replaced by Mr Fredericks for the continuation of the program.
I want to indicate for the benefit of committee members that, quite unusually, the transcript of this morning's proceedings has already been published. The secretary kindly sent it to us at 3.13 this afternoon. There was some comment, I think, by Senator Wong earlier that we would not have the advantage of the transcript until tomorrow. Quite unusually, we do have the advantage of the transcript today. I am not quite sure what has happened. We do not have yesterday's transcript of this committee yet but we do have today's.
Senator JACINTA COLLINS: I think some of the earlier comments might have assisted with that.
CHAIR: I mentioned that. What were your comments earlier?
Senator JACINTA COLLINS: I made comments about how it would be helpful to have Mr Moraitis's statement because it was so difficult to get access to the Hansardfor the criticisms of the Privileges Committee in a different committee the day before. It seems that inquiries from the secretariat assisted us in advancing that material.
CHAIR: Is it that easy? You just have to request it, I am told. That is useful. I record these things and my staff have to sit there and type them out. But we know now that if we make a request we can get Hansard to do that. Thanks to Hansard for that. It is very useful. We are going through the program, which I am told starts with the Attorney-General's Department, Group 1: Corporate, cross-portfolio, general.
Senator JACINTA COLLINS: Chair, can I make a comment on the program? The Attorney indicated earlier that he felt it was important that the national security agencies be dealt with this evening so that they do not drop of the program, as has previously occurred. I have some questions at this stage that I would prefer to deal with with the Attorney-General, but I understand the importance of a national security meeting so I would not insist on the appropriate order in which ministers appear before the committee.
However, I do not think it is appropriate that Senator Payne deal with the questions that I would prefer to ask the Attorney-General in relation to some of the cross portfolio matters. Can I suggest that we attempt to move through the program to the matters that do not require the Attorney-General or Mr Moraitis but that we move to the national security agencies after the dinner break, and we also put other matters in the program ahead of the national security agencies off to a future spill-over.
CHAIR: Before we consider that I just indicate that I took the captain's pick of talking to Australia Council and Screen Australia, who were about to get on a plane in Sydney to come over here. I was asked whether they would be needed. I gave a guess that they would not be tonight, so I told them not to waste their airfares. So, we will just record that. And for once I have unanimous support for my decision! Thank you for that.
Senator O'SULLIVAN: Retrospectively.
CHAIR: Retrospectively. What are you proposing? Be specific.
Senator JACINTA COLLINS: I am proposing that we move through the items under the Attorney-General's Department to the extent we can in the absence of the Attorney-General, understanding that there are some matters that we would prefer the Attorney be present for. Then, once we hit the dinner break, I am proposing that we move to the security agencies, as was originally proposed.
I understand, though, that that misses some of the earlier agencies, that people might have a particular view about. I would still prefer, for instance, to hear from the Director of Public Prosecutions—although not him, because he is still in London. I would prefer to have them appear, as well, this evening, in the security area.
CHAIR: Senator Collins, as I often make the point to you, I am always very relaxed—I cannot speak for all my colleagues—about the program. I am just asking you to be specific so that we all know what you are proposing.
Senator JACINTA COLLINS: What I am proposing is that we move, now, into the Attorney-General's Department to the extent that we are able in the absence of the Attorney, until the dinner break. At the dinner break we move to the security agencies that were proposed after seven o'clock, once they are out of the national security committee. The only further one that I would like to talk to, if possible, tonight, would be the Commonwealth Director of Public Prosecutions but I am not sure if any of the other committee members have others that they would definitely like to hear from tonight, as opposed to a future spill-over.
CHAIR: Are there elements of outcomes 1 and 2—some of those things—that you want the Attorney-General himself for?
CHAIR: So we are really saying that we will deal with—
Senator JACINTA COLLINS: We will deal with groups 1, 2 and 3 to the extent that we are able—
CHAIR: groups 1, 2 and 3 together, but we will not get to the areas where you want to question the Attorney-General himself. I guess if we do 1, 2 and 3 together we are certainly not going to get beyond the scheduled dinner break, which is at 6 o'clock. If we do that I think that is still within the—
Senator O'SULLIVAN: If we put groups 1, 2 and 3 together, are they a natural cohort? Is that an orderly way to conduct these examinations or will we be tripping over each other, ideas wise?
Mr Fredericks : Perhaps I can assist there. Groups 1, 2 and 3 represent the entirety of our department, other than the administration of the arts. So there is a logic in it in that you will be dealing with departmental officials. My understanding is that all relevant officials are here. I can add to that, that that could conveniently mean that if you do move on to deal with the national security agencies, noting that AGD may be required for a spill-over, you may be able to excuse AGD officers for the evening.
Senator JACINTA COLLINS: In other words, he likes that idea!
Senator O'SULLIVAN: That would make sense.
Mr Fredericks : Thank you, Senator.
CHAIR: So that is group 2 and group 3. Group 1 is the Ministry for the Arts, is that right?
Mr Fredericks : No. Groups 1, 2 and 3 are all the Attorney-General's Department.
CHAIR: Okay, well let's do that. Minister and Deputy Secretary, are you happy and clear with what we are talking about?
Senator Payne: Yes.
Mr Fredericks : Yes.
Senator BILYK: I would like to ask some questions about a number of appointments to the governing bodies of arts and cultural institutions announced by the Attorney-General on Thursday, 11 December 2014.
Mr Fredericks : When I mentioned that groups 1, 2 and 3 were all at the Attorney-General's Department, I noted that that is the case other than for the Ministry for the Arts. I think you will find—and I am happy to check—that the relevant Ministry for the Arts people are not here now as they were going to be required this evening. I apologise for that.
Senator BILYK: No, that is okay. There was a bit of confusion all around. In that case, I would like to ask some questions under the cross-portfolio area on the cancellation of welfare payments on security grounds. Last year, the government introduced the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, and that provided for the cancellation of welfare payments to certain persons on national security grounds, which I understand was pursuant to a security notice issued by the Attorney-General to the Minister for Social Services. Has the Attorney-General issued any security notices for the cancellation of welfare payments since the foreign fighters act came into force?
Ms K Jones : In terms of the new provision that was introduced into the foreign fighters act, I will just take you through the mechanism. The Attorney receives a notice from either the Minister for Foreign Affairs or the Minister for Immigration and Border Protection, depending on whether it is a cancellation of a passport or a visa. Following receipt of that notice, the Attorney will obtain some advice from the department, which relates to whether or not the person is receiving welfare payments. The Attorney-General's Department gets that advice from the Department of Social Security. Once that advice is received, then some information is given to the Attorney as to whether he should issue a security notice and provide that the Minister for Social Services. In relation to that mechanism, at present we have received notice in relation to four persons, and we are currently in the process of receiving advice from the Department of Social Services to inform advice to the Attorney-General about whether a cancellation should be recommended.
Senator BILYK: Just to help me and make it clear to me, these four people, I presume, have been noted and done something illegal under the foreign fighters act—
Ms K Jones : That is right. The trigger is a notice from either the Minister for Foreign Affairs or the Minister for Immigration and Border Protection that the visa or passport has been cancelled.
Senator BILYK: I think this is what you said, but I just want to clarify. Then they tell the department?
Ms K Jones : That is right.
Senator BILYK: And then the payments are stopped?
Ms K Jones : The department seeks advice. It is informed from advice from ASIO and then provides information to the Department of Social Services asking whether those people are in receipt of welfare or not. If they are then the Attorney can issue a security notice, which is provided to the Minister for Social Services, who is the actual decision maker in relation to whether the welfare benefit is cancelled or not.
Senator BILYK: Is the Attorney-General informed when the welfare payments are cancelled?
Ms K Jones : That would be part of the process, yes. But at this point we have not had, under this mechanism, a cancellation yet.
Senator BILYK: How is it proposed that the Attorney-General would be notified?
Ms K Jones : I would have to take that on notice. We have worked with the Department of Social Services in order to be able to have a proper mechanism in place, but I would need to take on notice exactly how that comes about.
Senator BILYK: So nobody has actually been cancelled yet?
Ms K Jones : Not under these provisions. There have been cancellations under existing provisions that have been a part of the process for many years relating to the normal sorts of conditions upon which people would have welfare cancelled—that is, if they have left the country for a period of time and therefore cannot fulfil the requirements under the social security legislation in order to qualify for benefits.
Senator BILYK: The Prime Minister made a comment in parliament and said, 'To the best of my knowledge and understanding, all of the foreign fighters who are currently overseas have had any welfare payments well and truly cancelled.' Are we able to clarify that that is the case?
Ms K Jones : I would have to take that on notice.
Senator BILYK: Obviously four have happened.
Ms K Jones : I would have to take the specifics of that on notice. Obviously, in terms of the situation with people overseas, the information is changing on a regular basis. If I could take that on notice and come back, Senator?
Senator BILYK: Thank you. How does the social services minister know who these people are?
Ms K Jones : That is the information that would be provided to them in the notice from the Attorney-General to the minister.
Senator BILYK: I am sorry, I just did not quite hear that. I should have mentioned this earlier. I actually have a bit of a hearing impairment and when there is a distraction I tend to not hear so well. Can I just ask you to repeat that, Ms Jones?
Ms K Jones : Once the Attorney-General's Department has received advice from the Department of Social Services that the people in question are indeed recipients of welfare, the department provides advice to the Attorney. Then he can issue a security notice that goes to the Minister for Social Services, and the Minister for Social Services makes the decision.
Senator BILYK: When do we expect this process to be running smoothly—if I can put it that way?
Ms K Jones : It is running now. As I said, there are four cases at the moment that are being considered with advice between our department and the Department of Social Services.
Senator BILYK: You mentioned that there are other ways for people—for example, if they are travelling for a long time and therefore do not fill out the appropriate forms. Does that apply to anyone on welfare?
Senator Payne: Portability issues—
Senator BILYK: What other ways would there be, besides them travelling?
Ms K Jones : I am sorry?
Senator BILYK: Minister, I am happy if you—
Senator Payne: It is a weird kind of arrangement.
Senator BILYK: I do understand that—
Senator Payne: She is doing a great job. If I can add anything, I will.
Senator BILYK: It is handy to have you at the table.
Ms Jones : In term of all the grounds on which cancellation of benefits could be made, I would have to profess that I am not an expert. I only know in terms of the security type grounds that have been introduced in this legislation. I would be happy to take that on notice and come back to you, in addition to the grounds that are provided for under the foreign fighters legislation, with what else there is.
Senator BILYK: When Minister Morrison said recently that only the Attorney-General and the security officials knew which Australians were in the ISIS death cult ranks overseas, that would follow then that they tell him—is that correct?
Ms Jones : In the mechanism that has been developed under the provisions under the foreign fighters act, once the cancellation has been done by the Minister for Foreign Affairs or the Minister for Immigration and Border Protection in relation to either the passport or the visa, then it comes to the Attorney-General's Department. We consult with the Department of Social Services, provide advice to the Attorney and it is the Attorney that provides the advice to the Minister of Social Services.
Senator BILYK: What the roll of Centrelink officers once the decision has been made?
Ms Jones : I would have to take that on notice. That part of the mechanism is the responsibility in the Department of Social Services and Department of Human Services.
Senator BILYK: I am presuming it would not be the minister who would tell someone that their welfare is being cut.
Senator Payne: The Minister for Social Services or the Department of Social Serves advises the Department of Human Services in relation to the proposal for the cancellation of payments.
Senator BILYK: And them presumably a Centrelink officer has to impart the news.
Senator Payne: It is not always that simple, of course. If you are actually cancelling a payment for somebody who is not in the country and is probably not readily contactable then there are a number of processes that are required for us to terminate payments. They would be undertaken to the extent that it is possible in the circumstances of the person's individual location.
Senator WRIGHT: Good evening. I have some questions first of all about the recent announcement from the Attorney-General's Department identifying $13.4 million over four years of a large counterterrorism package which will be spent on community engagement programs in Australia with an emphasis 'on preventing young Australian from becoming involved with extremist groups'. So I am interested first to know how much of this funding is allocated to the Living Safe Together Grants Program.
Ms Jones : In terms of the Living Safe Together Grants Program, we have allocated $1 million for this financial year.
Senator WRIGHT: So what remaining funding is there remaining from the $13.4 million announced for dealing with extremism?
Ms Jones : There is a range of initiatives that we are progressing under this program. The first is to develop a directory CVE intervention services. We are establishing that because one of the things that we have looked at is that at the Commonwealth level, at the state level and at the local level there are a lot of agencies and organisations that have a role to play in offering a wide range of services to support people who are either at risk of radicalisation or are on the path. So something really quite powerful is being able to draw together an understanding of all those services, what they have to offer, where they are located and what they do. We have been developing that and that is close to finalisation. That will be an important tool for other agencies when they are managing particular individuals.
Senator WRIGHT: And how much is dedicated to that particular initiative?
Ms Jones : If I could take the breakdown of that on notice.
Senator WRIGHT: Thank you.
Ms Jones : I may be able to provide it later this evening, if I can I will if not I can take it on notice.
Senator WRIGHT: Thank you. That will be very helpful. I think you used an abbreviation: CVE. Is that 'countering violent extremism'?
Ms K Jones : It is.
Senator WRIGHT: I understand what you are saying. Are there other initiatives?
Ms K Jones : The second aspect is developing an intervention framework. This is having a coordinated model, like a case model, for individuals who come to our attention who are at risk, whether that is because their family or community members have raised concerns and contacted authorities or whether the authorities themselves have become aware of the circumstances of the individual. The model that we are trying to develop—it is a cross- agency model—would involve law enforcement, social welfare agencies and employment agencies. We will take a holistic approach so that we can look at getting them involved in mentoring programs, employment training and perhaps community programs so that those who have been alienated can perhaps be given a bit of a pathway to become more engaged. We have been working on developing these programs over the last four or five months, because we have to work closely with state agencies and make sure that the program that we are developing is complementary to work that is already happening in the states and territories. As recent as yesterday we finalised the appointment of a jurisdictional coordinator in New South Wales. We are working through a program there that will now start working with particular individuals. So it is well advanced. We are currently rolling it out in New South Wales and Victoria. We are also working with the ACT.
Senator WRIGHT: Is there funding allocation for that one?
Ms K Jones : Again—
Senator WRIGHT: On notice? All right. But if you can get it to me tonight, that would be really excellent.
Ms K Jones : We will aim for that. If I could just add another thing. We actually have been reaching out to experts both in Australia and internationally about what is a robust evaluation framework to put around this, because obviously we want to be able to test all the way through the program that we are actually achieving results and outcomes. So we have spent a lot of time talking to experts in, I think, Canada and Europe on their experience of rolling out similar programs so that we can properly evaluate them, as we have been moving along.
We have also been working quite closely with the AFP and other agencies, because they are already working with at-risk youth and doing a range of work on trying to divert them. Again, we are just trying to be consistent with the work that is already being done out there.
Another thing I should note that we have developed is a 'reporting extremism' online tool. It is a mechanism so that across the board where people in the community out there see extremist material on websites they have a place where they can report it, in addition to law enforcement, so that we can start getting a more comprehensive picture of some of the extremist material that is out there.
Senator WRIGHT: Thank you for that. How much then is still unallocated from that $13.4 million?
Ms K Jones : If we can take that on notice, I will provide that to you. But what I would say to you is that we are at the building up stage of the program and we would expect expenditure to be increasing, as we have now done all the appropriate planning and preparation in order to be able to roll it out.
Senator WRIGHT: If I could ask you to perhaps take on notice any anticipated ideas or planning for what is ahead that may not yet have been allocated funding but that may be being pursued as well? That would be helpful.
Ms K Jones : Certainly.
Senator WRIGHT: If I could turn now to quite a different area about constitutionality of current government programs. Has the department given any advice on the constitutionality of particular programs in the wake of the High Court decision in the case of Williams and Commonwealth of Australia, June 2014?
Mr Fredericks : Senator, could I ask that you repeat that question for the benefit of the officer.
Senator WRIGHT: Has the department given any advice on the constitutionality of particular programs, given the decision of the High Court in Williams v Commonwealth of Australia No. 2 of June 2014?
Mr Faulkner : I think the most useful thing I can say is that the Attorney-General's Department has been closely involved with the government's consideration of the decision in Williams No. 2, which probably would not come as a surprise to most people with an interest in the area. Obviously, that has involved advice and consideration of one sort or another, that is right.
Senator WRIGHT: Are there any particular programs within the Attorney-General's Department that may be at risk due to constitutional considerations associated with the decision?
Mr Faulkner : It would not be appropriate for me to provide advice on particular questions of legal risk and so on, I am afraid.
Senator WRIGHT: I am not sure that I am asking about legal risk as such, it is the ongoing funding of those programs, isn't it?
Mr Faulkner : I am terribly sorry, I may have misunderstood your question. Would you mind putting that to me again.
Senator WRIGHT: I suppose it is about the ability to continue those programs, given questions about the constitutional validity of the programs. I am asking first of all whether there are any programs that come within the Attorney-General's Department that may be rendered invalid as a result of that decision?
CHAIR: Maybe impacted, rather than rendered invalid.
Senator WRIGHT: Impacted in the sense of not being able to be continued because of constitutional considerations.
Mr Faulkner : Yes, I see what you are saying. I think that may be a legal question, actually, at its core. Of course, it may well be the case that any portfolio, any part of the government, might make a decision for one reason or another that a particular program—it may be a spending program; it may be another kind of program—
Senator WRIGHT: Has the department identified any programs within the Attorney-General's Department that need to be considered in light of the Williams decision? I would not have thought that it was a Crown secret. I will move to asking for more specifics, but I think it is a pretty fair question to ask.
Mr Faulkner : I am not suggesting that it is not fair. I am conscious that I may seem a little evasive when I respond this way, but I genuinely think that in suggesting that there may be some particular programs that are seen to be, as it were, particularly deserving—
Senator WRIGHT: Impacted by the decision.
Mr Faulkner : Or impacted—presumably, by impacted you mean in some legal sense. Is that right?
Senator WRIGHT: My understanding is that one of the potential ramifications of the decision is looking at the validity of the existence of the funding of the program by the federal government, because of the way they have been set up.
Mr Faulkner : Sure.
Senator WRIGHT: So my question is: are there any programs that have been identified within the Attorney-General's Department that may be impacted in that way, whereby attention has been given, as in terms of the close discussion that has been had between the Attorney-General's Department and other departments.
Mr Faulkner : I would probably have to begin, on any view, just to come back to where you started from, because think it is relevant here. As you say, it is true to say that the High Court said in Williams No. 2 that Commonwealth payments in the particular case to Scripture Union Queensland under that particular program, the National School Chaplaincy and Student Welfare Program, were invalid. That decision did mean that the Commonwealth had to discontinue that program. That is quite clear. But the court did not find any other program to be invalid.
Senator WRIGHT: No. But if the same reasoning was applied to other programs there could be potentially a similar result. Do you agree with that?
CHAIR: You are getting into legal advice.
Senator WRIGHT: No, I am not. I am not getting into legal advice. I am just saying that it was a High Court decision applying certain principles. It was based on the facts of that particular case but there were principles about the funding of federal programs.
Mr Faulkner : Yes.
Senator WRIGHT: I am not sure why this initial question is so difficult.
Mr Faulkner : I am terribly sorry. It may be because what we are talking about here is almost a question of constitutional law, in a sense.
Senator WRIGHT: It is a question of constitutional law, isn't it?
Mr Faulkner : I think it might be, you see.
CHAIR: That is the point.
Senator WRIGHT: I am not asking for a legal opinion. Has consideration been given to the constitutional viability—let's call it that—of any programs in the Attorney-General's Department as a result of that decision?
Mr Faulkner : I think I could say that, as is generally the case after a constitutional case of this degree of interest, the Commonwealth will look at what is going on in terms of its arrangements and consider whether any kinds of adjustments are appropriate or whether there are any issues which need to be thought about more carefully.
As I indicated a moment ago, certainly the Attorney-General's Department has been involved in the government's consideration of the decision in Williams (No. 2), as it was in relation to Williams (No. 1) and cases that came before that.
Senator WRIGHT: Naturally, yes. So there are programs within the Attorney-General's Department that have been considered in light of that decision—not necessarily found to be of concern but have been identified as being considered. Has an advice—I am not going to ask what is in the advice—been prepared in relati