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Legal and Constitutional Affairs Legislation Committee
(Senate-Tuesday, 16 October 2012)
National Native Title Tribunal
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Senator DI NATALE
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Office of the Director of Public Prosecutions
Office of the Director of Public Prosecutions
CHAIR: Good evening, Mr Jolliffe. Do you have an opening statement?
Mr Jolliffe : No, I do not, Senator.
CHAIR: We will go to Senator Wright for questions.
Senator WRIGHT: I have questions regarding the proceedings against David Hicks under the Proceeds of Crime Act. First of all, can you please explain the basis on which this case was brought, what was the crime that was alleged to have occurred and from which a profit was alleged to have been made?
Mr Jolliffe : There was an action under the Proceeds of Crime Act, as you may already be aware. The previous director, now His Honour Judge Craigie, of the New South Wales District Court, issued a statement at the time those proceedings were discontinued, in which he briefly summarised the issue. In short compass, if you bear with me for a moment, I will just run through this for you. I do not know how much detail you want me to go into.
Senator WRIGHT: Probably not a lot, actually. That statement was issued and I could probably find that. Given that we are really short of time, I might move on, actually.
Mr Jolliffe : The statement issued by the former director covers the general background, Senator, but not in the specific detail that you have just raised. It was a statement issued on 24 July 2012 and it is headed 'Statement in the matter of David Hicks'. If you like, Senator, we can take the additional questions on notice, if that does not satisfy you.
Senator WRIGHT: Thank you; I would appreciate that. There are probably some answers that I would prefer to hear verbally tonight.
Mr Jolliffe : Certainly.
Senator WRIGHT: I am interested in knowing what evidence formed the basis of the case against David Hicks that was initially instituted in July 2011.
Mr Jolliffe : Senator, again, I refer to that statement issued by the director on 24 July. I will quickly summarise it for you because, as you have indicated time, is an issue. I quote:
The evidence included Mr Hicks’ plea of guilty before the United States Military Commission and admissions made by him before that Commission. These admissions are recorded in the following documents, which were obtained through international cooperation:
A certificate of conviction issued by the Military Commission in relation to Mr Hicks, for an offence against 10 United States Code section 950v Part 25-providing material support for terrorism, to wit al Qaeda.
The transcript of the Military Commission hearings on 26 and 30 March 2007.
The Stipulation of Fact, Charge Sheet and Pre-Trial Agreement produced in the course of the Military Commission proceedings against Mr Hicks.
Senator WRIGHT: Was that all the publicly available evidence that was relied upon to form the case against David Hicks?
Mr Jolliffe : Technically, in relation to the commencement of proceedings, Senator, a summons was obtained and it was supported by an affidavit. I will not go into the details of what was contained in the affidavit. But the material is as has been summarised in the director's note of 24 July. That summons was filed in late July 2011 and a consent order was made in early August in relation to the obtaining of the restraining order.
Senator WRIGHT: And that would encompass all the publicly available evidence upon which the decision—
Mr Jolliffe : Yes. There are other issues inherent in your question. Again, it is covered briefly in the director's statement. In short compass, the director took that action to restrain any likely dissipation of assets under section 20 of the Proceeds of Crime Act. So it was a restraining order application.
This, of course, was a literary proceeds application, and they are very few in number. In fact, I think this was only the second occasion on which a literary proceeds order had been sought. There are a number of discretionary factors about obtaining final relief under the proceeds act in relation to the final making of a proceeds order, and in section 152 and, in particular, in section 154 of the Proceeds of Crime Act, which sets out a number of factors that the court has to take into account, and that the court may also take into account. So it is entirely discretionary as to the final order. But the restraining order was obtained under section 20 in the circumstances in which I have briefly outlined.
Senator WRIGHT: The Australian government has previously referred to and relied upon two separate investigations, one conducted in 2004 and one in 2005 by US authorities regarding allegations of mistreatment of David Hicks during his incarceration at Guantanamo Bay, Cuba. Did the Director of Public Prosecutions also rely upon these investigations and reports as part of its proceeds of crime case against David Hicks?
Mr Jolliffe : Are you talking about in instituting the proceedings? I have outlined what we relied upon to institute—
Senator WRIGHT: I guess I am asking, to what extent, did the DPP rely upon—
Mr Jolliffe : No, in terms of instituting the proceedings it was the situations that I have outlined.
Senator WRIGHT: In July 2012 the proceeds of crime case against Hicks was dropped. Can you explain why, please.
Mr Jolliffe : Again, in short compass, I have some difficulties in providing some detail to you because when the action was commenced, in the circumstances I have briefly outlined, Mr Hicks's legal representatives then put the director on notice—again, this is briefly outlined in the director's statement—that the admissions contained in the documents that I previously, briefly summarised would be challenged.
At a practical level that meant that we had to deal with two particular provisions in the New South Wales Evidence Act, in particular section 84 of the New South Wales Evidence Act, which relevantly provides that evidence of an admission is not admissible in the court unless the court is satisfied that the admission, and the making of the admission, was not influenced by violent, oppressive, inhuman or degrading conduct, or a threat of conduct of that kind. That is section 84 of the New South Wales Evidence Act; section 138 of the act relevantly provides the court with a discretion to exclude evidence that was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or contravention of an Australian law.
The director carried the onus in relation to this litigation so the director had the burden. When the matter was commenced certain evidentiary materials were eventually filed on behalf of Mr Hicks. I will not go into the details because there is an implied undertaking of confidentiality in relation to the proceedings, because the affidavits were not read in court, so I feel, and the CDPP feels that we are bound by that implied undertaking of confidentiality. So it limits what I can say in terms of the details of the documents. But in essence, in light of the materials that were filed, the director was unable, despite attempts, to obtain the necessary evidentiary material in a form that would meet the allegations made in Mr Hicks's case.
Senator WRIGHT: Can I just clarify. The materials that you just referred to that were filed, were they filed by Mr Hicks's legal representatives? Is that right?
Mr Jolliffe : There was evidence filed in Mr Hicks's case. Can I just explain—to put it in context—that the matter was set down for what is called a 'voir dire hearing'—it was a four-day voir dire hearing—which was schedule to be heard at the end of July this year. The purpose of the voir dire hearing was to test or challenge the evidence that the director was relying upon—namely, the documents that I have previously outlined—and in particular the certificate of conviction, the transcript of the military commission hearings and the stipulation of fact charge sheet and pre-trial agreement.
Senator WRIGHT: At what time was the evidence you referred to filed by Mr Hicks's legal representatives? When was that filed?
Mr Jolliffe : We had been put on notice of the nature of the challenge in the voir dire, but from memory—and I could take this on notice, if you like, to give you more detail—is that we were provided with initially unsigned documents between January and July 2012.
Senator WRIGHT: Would that constitute the totality of new evidence that came to light between July 2011, when proceedings were instituted, and July 2012 that ultimately cause the case to be dropped?
Mr Jolliffe : Are you talking about evidence filed in Mr Hicks's case?
Senator WRIGHT: No, not necessarily filed on behalf of Mr Hicks, just new evidence generally that may have changed the view of the Department of Public Prosecutions as to the likelihood of success in the case after the proceedings were instituted.
Mr Jolliffe : It is a practical litigation issue really in terms of other materials that we were able to obtain and the evidentiary value of those materials in meeting the evidence that Mr Hicks had put forward or had been put forward on Mr Hicks's behalf. As I said earlier, the director bore the onus in relation to the litigation.
Senator WRIGHT: I am interested in whether evidence came to light or became available to you that was not necessarily filed on behalf of Mr Hicks and could not necessarily be used to challenge the evidence filed on behalf of Mr Hicks, but other evidence through your own investigations that may have caused you to have doubts about the likelihood of success in the case.
Mr Jolliffe : We are not an investigation agency, as you would appreciate, so in relation to any inquiries that can be made we rely on others, whether they be local or domestic or if any international inquiries can be made. All I can say is that the director took the view, as I have indicated and as he indicated in his statement of 24 July, that the totality of the material that we had—in other words, all the material that the director had available—was reviewed and after considering the issues and taking into account as part of that advice from both within the DPP and from a senior counsel who had been retained to advise, factoring all those things in, the director took the view that the proceedings could not be sustained.
Senator WRIGHT: I would be right in thinking that you would be considered to be or required to be a model litigant, is that right?
Mr Jolliffe : Technically we are not bound by but we do apply those rules.
Senator WRIGHT: So if evidence came to light—whether it was filed on behalf of Mr Hicks or whether it came to light in other ways—that was to cause concern about the likelihood of success and other concerns in relation to the conduct of the litigation, you would be bound to take that into account?
Mr Jolliffe : We review legal proceedings pretty much on an ongoing basis and if there is a concern as to the sufficiency of the available evidence when the office reviews the matter, regardless of the stage that the proceedings have reached, then we would take the appropriate action. As I said, while we are not strictly bound by the model litigant rules we certainly act in accordance with those principles.
Senator WRIGHT: The other thing I am interested in exploring is that, given the circumstances in which it was clearly evident publicly that the nature of the conviction that David Hicks had and the nature of the plea that he made—which was very well publicised at the time and rather controversial—it is not surprising that one of the grounds of challenge to the proceedings by Mr Hicks's lawyers would be that his plea could not be relied upon. I am interested in why it was not until six or seven months after the proceedings were instituted that that started to give pause to the idea that perhaps it would not be possible to be successful in the proceedings.
Mr Jolliffe : As I indicated briefly earlier, the proceedings were commenced with initial steps to preserve the assets from dissipation and that was the restraining order stage. Then, as I indicated, in terms of getting any final orders it was necessary to enter into a series of steps in the litigation process where the judge presiding over the case set timetables for the filing of affidavits in relation to evidentiary issues. Of course, then there was the challenge in relation to the voir dire in terms of the admissibility in the director's case. It played out over a period of months and various pieces of evidence were filed on behalf of Mr Hicks, as I said, between January and July 2012. But I think the director's position was that when he commenced the proceedings he was entitled to rely on the admissions from the United States proceedings that were available to him at the time.
Senator WRIGHT: I am not an expert on section 84 or section 138 of the Evidence Act, but it would be surprising to me, given again what we know about the allegations of coercion and the events that surrounded the final plea that Mr Hicks made under the US system, that there was not some concern all the way through about the reliability of those admissions and the conviction in the Australian courts.
Mr Jolliffe : I would only say that the evidence that we had available at that time to initiate the proceedings indicated that Mr Hicks had entered his plea voluntarily and of his own free will and that he had not entered the plea of guilty as a result of any threat or force. It also indicated that he understood the meaning and effect of his plea. That was available to us at the time we commenced arising out of those documents that I briefly referred to earlier.
Senator WRIGHT: Finally, please provide the total cost of legal fees incurred by the Australian government in relation to the proceeds of crime case against David Hicks.
Mr Jolliffe : Are you talking about the direct legal costs? There would be a lot of other investigation costs et cetera. I could take that on notice.
Senator WRIGHT: I appreciate that you probably will need to take that on notice; I would like that. But I think the direct and the indirect costs would be of interest to me and to many others.
Mr Jolliffe : The director would be aware of the costs to the office in terms of legal costs. The indirect cost to the wider Australian government might be a separate issue entirely.
Senator WRIGHT: Are you in a position to tell me the direct legal costs that were incurred in that case?
Mr Jolliffe : It might be best for me to take it on notice. I will be much more easily able to ascertain those costs for you than I will be the indirect costs that might be associated with the entire litigation.
Senator WRIGHT: Are you in a position to provide that now? I appreciate that you would need to take the indirect costs on notice, but are you in a position to give any sense of the direct costs at this point?
Mr Jolliffe : I can tell you, on the note that has just been brought to my attention, the CDPP spent approximately $165,618 on counsel and administration costs.
Senator WRIGHT: I ask you to take notice the other part of the question.
Mr Jolliffe : The wider costs: I think we might need some further assistance from other agencies in relation to those.
Senator WRIGHT: Thank you.
Senator BRANDIS: I am bound to say that the basis of your office's decision not to proceed with the literary proceeds order against David Hicks strikes me as being particularly weak. Although you said to Senator Wright that the DPP bore the onus of proof, that is certainly true in relation to the overall issue. But on the section 84 point, the onus of raising sufficient evidentiary material to attract the application of section 84 of the New South Wales Evidence Act surely lies upon the person asserting it, in this case Hicks. In other words, you do not have to prove a negative: if he wants to raise this issue he has to put on some evidence. It might be merely his own testimony but he has to put on some evidence to attract its operation. What I am interested to know is whether there was any evidence raised by Hicks that would attract the operation of section 84 of the Evidence Act other than the mere fact of his renunciation of his admission.
Mr Jolliffe : Senator, as I previously indicated, the office believes that it is bound by implied undertaking of confidentiality in relation to unread affidavits filed in the proceedings.
Senator BRANDIS: I am not asking about content. I am asking: was there any evidence other than Hicks' renunciation of his admission?
Mr Jolliffe : I think for me to answer that question it could well raise an issue about that implied undertaking.
Senator BRANDIS: No, it wouldn't, because I am not going to go on to ask you what that evidence was.
Mr Jolliffe : But by asking me that question, aren't you asking me to provide information to you as to the nature of what—
Senator BRANDIS: No. I am asking whether there was any other evidence. I am not asking you what its character was; I am not asking you who the witnesses were. I am merely asking you whether the only evidence upon which you relied in making your decision not to proceed the matter was Hicks' renunciation of his admission.
Mr Jolliffe : I am just quoting from the director's note of 24 July:
In support of the challenge, the Defendants served evidential material not previously available to the CDPP and AFP.
I appreciate that does not directly answer your question—
Senator BRANDIS: No, it doesn't, because that evidentiary material may merely have been Hicks' renunciation of his admission. And if that is all you relied on, it seems to me that one can never reliably mount a proceeds of crime recovery action—not just the literary proceeds of it but other proceedings under the Proceeds of Crime Act in reliance upon an admission. All the criminal has to do is to withdraw their admission and, applying that test, as you seem to be applying, it all becomes too hard.
Mr Jolliffe : Senator, I can indicate that there was evidentiary material filed by several people in support of Mr Hicks' case.
Senator BRANDIS: But did that go to any issue other than the renunciation by Hicks of his admission?
Mr Jolliffe : It went to issues that were covered by section 84—the circumstances—
Senator BRANDIS: That begs the question, with respect, because you have said that you made your decision because you were not satisfied, that you thought section 84 might have presented a hurdle to you that was too great. But what I want to know is the process of reasoning by which you arrived at that conclusion. Respecting the undertaking that you have mentioned, I want to know—it does not matter how many different witnesses there were, and I am not going to ask you who they were—if there was any proposition upon which you relied, other than the bare fact that Hicks had withdrawn or renounced his admission of guilt.
Mr Jolliffe : Essentially what you are asking me is: was it nothing more than just a mere denial.
Senator BRANDIS: Effectively, yes.
Mr Jolliffe : I appreciate your issue on that, Senator. I am concerned about the implied undertaking. Can I take that on notice?
Senator BRANDIS: I do not really see why you would need to, because nothing in my question could—I would submit to you, with respect—be reasonably interpreted as asking you to go beyond your implied undertaking. If the answer to your question would be yes, there were other grounds, there was other evidence beyond the mere renunciation of the admission, I have told you, respecting the undertaking, that I will not pursue that. I would just be satisfied that it was not the bare renunciation of the admission. If you told me that no, there was no other evidence; it was merely the renunciation of the admission, then I would have a problem.
Mr Jolliffe : Can I just indicate that I would like to take that on notice so that I can consider the propositions that you put.
Senator BRANDIS: All right.
CHAIR: Senator Brandis, we are going to have to move on to the department now. Mr Jolliffe and your colleagues, thank you very much.
I am going to ask the Attorney-General's Department, outcome 1—
Senator Ludwig: Chair, is there any part of the department that you think may not be required?
CHAIR: We have only got 35 minutes to go. We will move to outcome 1 and we are going to try and do maybe 15 minutes and then outcome 2. I would say it is highly likely we will get to outcome 3 but who knows? We might just do 10 minutes each, so I am sorry I cannot answer that question. Let's move on with outcome 1. Senator Humphries?
Senator BRANDIS: I am going to ask Senator Humphries's questions.
CHAIR: Thanks, Senator Brandis. If we could try and keep it to 10 minutes, that would be useful.
Senator BRANDIS: I will do my best. Of course the answers, not the questions—
CHAIR: I might have to cut you off after 10 minutes
Senator BRANDIS: It is the answers that take up the time, not the questions.
CHAIR: I am not sure about that. You might have to after 10 minutes put the rest of the questions on notice.
Senator BRANDIS: I am looking at the schedule of grants made from the Attorney-General's office in the current financial year, which is being supplied to the Senate under the continuing order of the Senate. That is from 1 July 2012 to 30 June 2013. You are familiar with the document I am referring to.
Ms Bailey : I do not have it with me.
Senator BRANDIS: There you are: have a look at it. I just want to know one thing, please—and you may have to take this on notice—if you glance through the document, you will see there are numerous instances of programs entitled 'financial assistance towards legal costs and related expenses.' Against that entry, we see the words 'name omitted for privacy reasons'. Apart from the amount, there is no indication whatsoever of the purpose of the grant other than it is towards legal costs. What I would like to know, please, is of all the items in the schedule so described, how many relate to asylum seeker matters, the provision of legal costs towards asylum seekers?
Mr Duggan : I would prefer to take that question on notice, if I may. Some of them will indeed relate to that but I cannot give you that answer now..
Mr Wilkins : The bulk of the matters that you were speaking of come out of DIAC's budget but some of these may be, but so you do not get the impression that this is all the money—
Senator BRANDIS: That is why I asked the question, so I can find out how many do. I am happy for someone else to have a go for a while. I am going to deal with some other outcomes.
CHAIR: We are going to move to outcome 2, if that is the case, because we do not have anyone else.
Senator WRIGHT: I am going to ask you to take on notice questions about the annual amount of Commonwealth funding provided to legal aid services over the past five years with a breakdown for Aboriginal and Torres Strait Islander legal services, community legal centres and family violence prevention legal services, and by state and territory. I will now follow up on some questions asked during budget estimates regarding the review of the national partnership agreement on legal assistance services. Firstly, in May there was no set consultation timetable for the review. Is that timetable now settled and available? If so, can you provide details of the timeframe for consultations and with whom the review is consulting?
Mr Duggan : We have just concluded consultations on the evaluation framework for the review. That concluded at the beginning of October. The timing for the review, the consultants have been appointed and we will expect the process now to get fully underway and be concluded next year.
Senator WRIGHT: Can you give information about who the review will be consulting with?
Mr Duggan : The review by Allen Consulting Group will be consulting all key stakeholders in the area and they have already done a fair bit of that work in starting off with the evaluation framework. For example, all of the legal aid commissions have been consulted, many CLCs have been consulted and many of the ATSILSs also been consulted as well. That will continue.
Senator WRIGHT: In May you indicated that when considering unmet need in the legal system you will be relying on a report that has been in the pipeline for a while commissioned by National Legal Aid. The report which details the findings of the Legal Australia-wide Survey was released last week, on 11 October. Can you explain how the Attorney-General's Department will consider and respond to that survey?
Mr Duggan : As you have indicated, this was a long-awaited survey, certainly by the area. It is the largest legal needs survey conducted anywhere in the world to date and provides important information for Australia. It confirms that access to justice is fundamental to community well-being. It demonstrates also that access to justice for disadvantaged people in particular, those with a disability, must remain a priority. The report indicates that the government's push for a holistic approach to legal and related services is appropriate to address the legal needs of the Australian community. The intention is that the national partnership agreement review which you have just discussed will not deal specifically with unmet need but will rely on that report that you have outlined specifically to inform it about that issue. That report, as you have indicated, recognises that a holistic, integrated approach to service delivery, particularly across legal and broader human services, is still in its infancy in Australia. The law survey provides an invaluable resource for the Australian government on addressing legal need in Australia.
Senator WRIGHT: The survey will inform the review but the review is not looking at unmet need. That has been previously stated quite clearly. So will the department respond to the survey separately and formally?
Mr Duggan : That is a matter for government. It would be a matter for the Attorney. The Attorneys will be given a briefing on the report but current intention is that the report will be considered as part of the review because, as you can appreciate, the provision of these services is not just a matter for the Commonwealth, it is a matter for the Commonwealth and the states combined.
Senator WRIGHT: Thank you for that. Along with the Legal Australia-wide Survey, a number of other recent reports highlighted the significant levels of unmet need in Australia's legal system. For example, a report by the Australia Institute earlier this year highlighted that approximately 500,000 Australians are missing out on accessing essential legal services. As well, the 2012 Australian community sector survey found that 73 per cent of legal services cannot meet demand for their services. Is the department currently doing anything to respond to unmet need in legal services?
Mr Duggan : I can simply indicate to you that the Australian government will invest $1.3 billion in legal assistance programs over the four-year period until June 2014 and that is the largest funding commitment in over a decade.
The government's commitment to funding legal assistance programs has been demonstrated by the investment of an additional $154 million over four years in the 2010-11 budget for Commonwealth legal assistance programs. That funding includes: $92.3 million for legal aid, $43.9 million for Indigenous legal aid and $26.8 million for community legal services. The additional funding in the 2010-11 budget was the most significant injection of new funding for legal assistance services in well over a decade.
There is never enough money. The government is doing the best that it can within the budgetary environment we are currently confronting.
Mr Wilkins : It is probably worth adding that the whole point of the inquiry is to see if there are more efficient and effective ways people can deliver legal services. There is some appetite, particularly among some of the legal aid commissions, for looking at more innovative ways of using money, because, as you would appreciate, the states are also under the pump in terms of their fiscal position. So one thing the government is trying to do—as other states and territory governments—is to try and find how you can use that money more effectively and leverage more and better services for people. That is one thing we are doing to try and meet more need.
Senator WRIGHT: Certainly, although it has been clearly stated that that is not within the ambit of that review—the unmet need itself, which is clearly there now, isn't it?
Mr Wilkins : We do not want to raise expectations, but already the government's national partnership agreement has managed to encourage—I think that is probably the best word—other providers of legal aid in the community and in the states; they are already taking up the idea of trying to use some of their legal services more as a prophylactic, to try and intervene earlier, to give people legal advice so that they do not actually get into crisis situations, which cost a lot more money. So a lot of that is now something people are trying to attend to. In that sense, yes, there is the proposition that we are not going to look at unmet need. What I am giving you is the context for that. It may well be that we can deliver more services and better services with the same amount of money.
Senator WRIGHT: I am interested in exploring the unintended consequences or the degree to which additional legal costs are factored into policy decisions where, if attention was given to the likely consequences of some of the policy decisions, there would be an understanding that they would actually, down the track, require more legal assistance of some kind—or, if in fact that is not forthcoming, then there would be more unmet need. So I am interested in whether the department regularly liaises with other departments and agencies in relation to the implications of major policy decisions on legal assistance services. An example might be the impact of the proposed NDIS—I will come to that in a minute; I just want to clarify what I am talking about here. Does the department regularly liaise with other departments and agencies about those major policy decisions and the potential impacts and legal assistance services? If so, how is it done and are there some examples that you could give me?
Mr Duggan : I am very happy to use the example you have just talked about—that is, the NDIS proposals. The department has been very active, through the Attorney-General, on putting forward the need for there to be significant consideration to the possible impact on service providers as a result of the significant initiative proposed. We are very active in highlighting the impact that is likely to have on a range of our service providers, and indeed we are part of submissions and what-have-you that go to cabinet and to ministers generally in relation to that point. So the answer to your question is: yes, we vigorously pursue those avenues as best we can, and certainly the government is well aware of the potential impact on our service providers.
Senator WRIGHT: Another example I might give you is: has the department considered the impact of the National Plan to Reduce Violence Against Women and their Children on legal assistance services? If so, what is the likely impact, and what action is being taken to ensure that legal assistance services will be adequately funded to respond to any such impact?
Mr Duggan : The Commonwealth already provides significant funding in relation to a range of areas in relation to violence against women—in particular, through the Family Violence Prevention Legal Services and dedicated Indigenous services, which are designed to assist particularly women but obviously all those who suffer from family violence. The Commonwealth spends $19 million on those services per annum. Much of the services that are being provided in relation to the strategy you mentioned do not come within our bailiwick, but the Commonwealth is well aware of the impact of much of that on our service providers. Of course, generally speaking, the laws they relate to are the responsibility of the states and territories.
Senator WRIGHT: The Legal Australia-Wide Survey calls for 'a holistic approach to justice' comprising multiple, integrated strategies to cater for the different needs within communities, and suggests tailored, targeted and intensive assistance for people with complex legal and non-legal needs. How is the department ensuring that Australian legal assistance services are being provided in this holistic way?
Mr Wilkins : That is certainly something that the review is looking at, but I think you need to be very careful about that, Senator. If one goes overboard in terms of this holistic approach—which is sensible in terms of breaking down some of the silos et cetera that exist—you might end up with a blancmange instead of some clear boundaries about people's legal problems and lawyers dealing with people's legal problems. I think you just need to be a bit careful about that general proposition; nevertheless, we do need to contemplate where there are silly barriers to cooperation. I think this inquiry that we have been talking about will go some way to addressing that. It is certainly something we are conscious of. All I am saying is it can be overstated. It can lead in some wrong directions as well.
Senator WRIGHT: So when you refer to 'the inquiry', do you mean the current review?
Mr Wilkins : Yes, sorry, the review.
Senator WRIGHT: There is not actually a particular strategy or approach that the Attorney-General's Department applies at this stage?
Mr Wilkins : No. I think the way you put the proposition—it would be a nonsense to have a strategy to address that.
Senator WRIGHT: To address the intersection of legal needs and other needs in dealing with the problems that people—
Mr Wilkins : No, not that. That makes sense. But you were talking about some holistic or whole-of-government view of—
Senator WRIGHT: That is not what I said at all.
Mr Wilkins : Do you want to put the proposition again.
Senator WRIGHT: Perhaps you misunderstood what I was saying.
Mr Wilkins : Perhaps I did. Do you want to put the proposition again.
Senator WRIGHT: It was the 'holistic approach to justice'—
Mr Wilkins : That is what I thought.
Senator WRIGHT: that justice is part of people's lives and experiences, multiple integrated strategies, different needs within communities, and tailored, targeted and intensive assistance to people with complex legal and non-legal needs.
Mr Wilkins : I think that is something the review would be looking at. In a whole range of areas, we look at that. There is a huge number of programs that we run. Insofar as you are talking about customising services, getting rid of some of the barriers to cooperation, that is something that I expect we would be embraced, whatever area of policy we were looking at, across areas from family law through to areas of criminal law.
Senator WRIGHT: Thank you.
CHAIR: Senator Rhiannon, did you have some questions?
Senator RHIANNON: Yes, thank you.
Senator BRANDIS: Chair, I do not wish to be rude to Senator Rhiannon, but you have just called a second Greens senator—
CHAIR: That is right. And prior to you coming in—
Senator BRANDIS: consecutively.
CHAIR: We organised the program with Senator Humphries and we are following that through to 11 o'clock.
Senator BRANDIS: I do want to protest that. As your senior colleague Senator John Faulkner always says: 'Estimates is primarily an opposition forum, so most of the time should go to the opposition.'
Senator WRIGHT: It has.
Senator RHIANNON: Senator Brandis—
CHAIR: Senator Brandis, you are now wasting time. We do have an agreement with your colleague Senator Humphries, who is the deputy chair.
Senator BRANDIS: Consecutively. Two Greens senators.
Senator BRANDIS: And I do not think that is appropriate.
CHAIR: You have five minutes, Senator Rhiannon.
Senator BRANDIS: I have questions as well.
CHAIR: We will go to you after she is finished.
Senator RHIANNON: Mr Wilkins, are there moves afoot to exempt parliamentary departments from FOI laws?
Mr Wilkins : I might ask Mr Minogue to answer that question.
Mr Minogue : This was actually raised in some discussion with Professor McMillan from the Office of the Australian Information Commissioner. The issue about whether the FOI Act extends to parliamentary departments was put into issue by that office, and there are some discussions going on. Government is considering a range of issues in relation to that. There is also the two-year review of the FOI Act and its operation that is going to be announced. That is to commence in early November and the details of that will be announced very shortly. Those kinds of considerations will be looked at in that context as well.
Senator RHIANNON: Are you expecting that a possible move to consider exempting parliamentary departments could be rolled into that review, or do you expect that it will move into legislation?
Mr Minogue : I think that the review will look at how the act operates, and that is one of the factors that has been put into issue by the comments of the commissioner's office. It is something that government has to consider and there is a range of considerations, but whether there is legislative response or other things needs to be worked through. The review will be a mechanism to progress those.
Senator RHIANNON: The Information Commissioner released a report in February reviewing how charges for processing FOI requests are structured. The commissioner just indicated that he thought his recommendations would be rolled into the FOI Act review that, as you mentioned, is due to start in November. Has the Attorney-General's Department considered these recommendations, considering that if it is rolled into the review it would be a failure to implement a new charges regime that could help meet the Prime Minister's 2010 comment that the government 'will be held more accountable than ever before'?
Mr Minogue : Yes, we are aware of Professor McMillan's report that you refer to, and we have had some discussions with him in relation to those issues and, as I say, the two-year review of the FOI Act. The terms of reference for that review will be announced very shortly. Professor McMillan has certainly raised with us that the charging issues that he raised in his report could very usefully be considered in that context.
Senator RHIANNON: One could take from your response there that we are going to fail to implement a new charges regime in the short term.
Mr Minogue : I do not think that we can take that at all. I think the issue has been raised and is being considered, and the terms of reference for the review will be announced shortly.
Senator RHIANNON: But, if it goes off into the review, it is obviously going to take much longer.
Mr Minogue : The review will take its time. It is due to be completed by April next year. That is consistent with the statutory framework for the review of those issues and the operation of the act and the commissioner's office. It would be appropriate to consider them all in the one process.
Senator RHIANNON: In the Information Commissioner's latest annual report, the Freedom of Information Commissioner, Dr Popple, in analysing the year, notes:
… some agencies have made decisions, or dealt with FOI applicants, in ways that are at odds with the pro-disclosure culture that the FOI Act promotes and requires …
Agencies do not always take reasonable steps to assist applicants to make their FOI requests, as agencies are required by the Act to do.
What is the department doing to shift that culture of pro-disclosure? Clearly, work needs to be done on it. What is happening?
Mr Minogue : I think that is a question best directed to the Information Commissioner. Certainly, the proper implementation of the FOI Act and, as you say, the pro-disclosure obligations is something that we take very seriously. The education and facilitation to support that cultural change is what the commissioner's office is established to do, in part.
Senator RHIANNON: In the evidence that he just gave, that I imagine you heard, the issue came up about resources. Is that not one very practical way that he could be assisted to help shift that culture?
Mr Wilkins : Yes, I heard the evidence about the resources. He also made the point that everybody in government needs to live with some of the fiscal constraints that are being required of departments and government more generally.
I think probably every one of the agencies in the portfolio would be able to make out a case for extra funds. So I do not actually plan to make special representations on behalf of the Information Commissioner, although I will obviously continue to encourage my colleagues whenever I can in terms of a culture of open government, as I do not see the point in that. The Department of Finance would just think that I was silly and they would take no notice of the representations. In the current context, one has to be responsible on these things. But, if the opportunity crops up where there is obviously some capacity to help the commissioner in terms of resourcing, we will look at that.
Senator RHIANNON: Just looking at where Australia stands on the international stage with FOI, isn't Australia going against the tide when you consider that England, Scotland, India and more and more countries are subjecting their departments to more FOI? That is the trend for many Western democracies. So, while the Prime Minister made those comments in 2010, it appears that we are not keeping up with other similar jurisdictions.
Mr Wilkins : I do not think that is actually the case, Senator. I think we are in fact ahead of most jurisdictions.
Senator RHIANNON: Sorry, we are ahead of?
Mr Wilkins : Most jurisdictions.
Senator RHIANNON: In what way would you argue that?
Mr Wilkins : This will require a very detailed analysis of the various provisions. But certainly, say, in relation to the characterisation of public interest, even the creation of an Information Commissioner is something not all jurisdictions have.
Senator BRANDIS: But we are behind where we used to be five or six years ago in terms of both the expensiveness of making FOI applications and the processing times. That is clear.
Mr Wilkins : I am not sure that that is clear. What I heard was that we did not have the statistics, actually. So I am not sure on what basis you can say that.
Senator BRANDIS: On the basis of published information of which I am aware; not on the basis of what Professor McMillan just said. It is not under controversy that the cost of FOI applications has increased.
Mr Wilkins : With the cost of FOI applications you cannot charge people anymore. I am not quite sure what you mean by the costs. The current government has done away with charging. So I am not sure in what sense the costs have gone up.
CHAIR: Senator Brandis, if you could finish your questions at five to 10 we will then go to Senator Back for the last five minutes.
Senator BRANDIS: I have questions for the department.
CHAIR: Yes, that is right.
Senator BRANDIS: But not on this topic.
CHAIR: This is outcome 2.
Senator BRANDIS: I have questions on outcome 2.
CHAIR: You have two minutes.
Senator BRANDIS: I want to ask you a series of questions, please, about expenditure of legal services. What is the figure for Commonwealth legal services expenditure in 2011-12?
Mr Minogue : We do not have a Commonwealth figure for 2011-12 at this stage.
Senator BRANDIS: When is it going to be published?
Mr Minogue : It is going to be published very shortly. Agencies are required, as you know, to submit their legal services expenditure reports to us. That has been done and we are compiling the report. It should be published in November.
Senator BRANDIS: Before the end of November?
Mr Minogue : Yes.
Senator BRANDIS: In respect of compliance with the legal services directions, how many reports of noncompliance with the legal services directions were made in 2011-12?
Mr Minogue : It depends on how you take the figures. So I might in part take it on notice but also give you the figures that we have. In 2011-12 there were 95 reviews opened.
We finalised 60 of those reviews: 22 of those related to agencies that were late in reporting legal services expenditure, along the lines we discussed previously—the importance of that; a number of agencies in relation to compliance certificates; two breaches of agencies failing to adhere to obligations in relation to seeking constitutional law advice from the appropriate sources; and one model litigant issue.
Senator BRANDIS: What was that case?
Mr Minogue : I will not disclose the name because some of these things that are raised with us are on the basis that they are confidential or otherwise and I do not know whether this one was raised on a confidential basis.
Senator BRANDIS: Would you take that on notice. I think we are entitled to know if there was a breach of the model litigant obligations and what the case was.
Mr Minogue : Yes.
Senator BRANDIS: How many reports have there been so far of non-compliance with the Legal Services Directions in 2012-13?
Mr Minogue : Could you repeat that?
Senator BRANDIS: How many in the current financial year so far?
Mr Minogue : In the current financial year, we have finalised 17 reviews of which five have resulted in concerns of non-compliance; two relating to a failure to seek constitutional law advice appropriately; one breach for an agency that did not consult with the primary agency administering legislation—that was an agency that got advice in relation to another agency's legislation without consulting the primary agency; one concern about failing to brief counsel in accordance with the directions; and an issue in relation to the same model litigant obligation matter that I referred to that had been carried over.
Senator BRANDIS: On the new multilist system for the acquisition of legal services, how much does the government expect to save as a result of the change to the arrangements in 2011?
Mr Wilkins : We have not put a number on that actually.
Senator BRANDIS: Has a number been budgeted?
Mr Wilkins : Not to my knowledge. As I explained last time when we were talking about this, the main thing is to try to instil a culture of informed purchasing rather than simply going for savings. That would play into—
Senator BRANDIS: It is an efficiency measure, though—is it not?
Mr Wilkins : No, it is not an efficiency measure; it is an effectiveness measure, actually. It may end in some efficiencies, but the critical thing is to make sure that across the whole of the public sector there is a better conversation occurring between people who are procuring legal services about how people are performing. If that works well and there is not a doubling up of, say, getting legal advice then there may well be some efficiencies. What Blunn and Krieger found when they looked at the practice in the Commonwealth is that we have not got the best practice from the private sector in terms of informed purchasing. It is really aimed at that rather than—
Senator BRANDIS: Okay, so it is not budgeted for. Is there an expectation under the new arrangements that large agencies with existing relationships with national law firms will continue to instruct those firms rather than test new firms or is one of the purposes of the arrangements to encourage them to shop around?
Mr Wilkins : Both of those propositions are probably a bit too crude, actually. As I said, the idea is that they should inform themselves better and compare notes. Maybe the firm that they have been dealing with and the large firms are perfectly appropriate.
Senator BRANDIS: What has been the practice, even if it is on the basis of early and anecdotal evidence? How would you describe the behavioural change, if any, within the bureaucracy when it comes to the practice of instructing the large law firms at court?
Mr Wilkins : I think it has probably been relatively cautious so far. I do not think there have been large moves—
Senator BRANDIS: There has not been much change?
Mr Wilkins : I could not say. I do not know whether Mr Minogue has seen any.
Mr Minogue : I think that is right. What the list does in its very early stages is facilitate that and allow agencies to compare notes. From that, agencies will make decisions about what is the best and most effective outcome for them, given that there will be an element of restructuring of how they purchase legal services, how they parcel particular packages or lines of work and then seek market responses from the firms on the list in relation to those offerings.
Senator BRANDIS: Since the beginning of the 2011-12 financial year, how many new applications have been received to join the multi-user list?
Mr Minogue : In terms of numbers of applications, I am not sure that I have that. There were 66 firms in the first round of applications, which closed in time for commencement in July. We are just going through the process of assessing the second round of applications. So we are evaluating those.
Senator BRANDIS: How many are on the second round?
Mr Minogue : I do not think I have the number of applications. We would have to take that on notice.
Senator BRANDIS: That is fine. Presumably, it is fewer than the 66 in the initial round.
Mr Minogue : The number I have in my head is fewer, but I am not sure that that is right. I will take that on notice.
Senator BRANDIS: Thank you.
CHAIR: Mr Wilkins, thank you very much for your attendance at estimates all day today and your officers. Committee members will place any other questions they may have on notice to either you or the relevant agencies. I appreciate your officers being here, Mr Wilkins. I know it is frustrating for them to get to estimates and not get a question. We continue to try to improve the program.
Mr Wilkins : Thank you, Madam Chair.
Committee adjourned at 23:01