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Legal and Constitutional Affairs Legislation Committee


In Attendance

Senator Brandis QC, Attorney-General

Attorney-General' s Department

Mr Chris Moraitis PSM, Secretary

Mr Greg Manning, Acting Deputy Secretary, Civil Justice and Legal Services Group

Mr Iain Anderson, Acting Deputy Secretary, Strategic Operations and Coordination Group

Ms Katherine Jones, Deputy Secretary, National Security and Criminal Justice Group

Access to Justice Division        

Mr Matt Hall PSM, Acting First Assistant Secretary

Dr Albin Smrdel, Assistant Secretary, Courts Tribunal and Justice Policy

Ms Tamsyn Harvey, Assistant Secretary, Family Law

Ms Elizabeth Quinn, Assistant Secretary, Legal Assistance

Ms Kelly Williams, Assistant Secretary, Marriage Law and Celebrants

Australian Government Solicitor

Mr Ian Govey AM, Australian Government Solicitor

Mr Daryl Adam, National Manager, Corporate Support

Civil Law Division

Mr Matt Minogue, First Assistant Secretary

Mr Andrew Walter, Assistant Secretary, Commercial and Administrative Law

Ms Toni Pirani, Assistant Secretary, Commonwealth Representation Royal Commission

Ms Petra Gartmann, Assistant Secretary, Legal Services Policy

Ms Carmen Miragaya, Acting Assistant Secretary, Native Title Unit

Corporate Division

Mr Stephen Lutze, Chief Financial Officer

Criminal Justice Division

Mr Anthony Coles, Acting First Assistant Secretary

Mr Michael Pahlow, Assistant Secretary, AusCheck

Ms Brooke Hartigan, Acting Assistant Secretary, Crime and Justice Policy

Ms Tara Inverarity, Acting Assistant Secretary, Crime and Justice Policy

Ms Margaret Close, Acting Assistant Secretary, Criminal Law and Law Enforcement

Defence Abuse Response Taskforce

Ms Kirsty Windeyer, Acting Executive Director

Emergency Management Australia

Mr Mark Crosweller, First Assistant Secretary

Mr Rob Cameron, Assistant Secretary, Crisis Coordination

Mr Mike Norris, Assistant Secretary, Dignitary and Major Events Security

Mr Aaron Verlin, Assistant Secretary, National Disaster Recovery

Information Division

Mr Matthew Boyley, First Assistant Secretary

International Crime Cooperation Division

Ms Catherine Hawkins, First Assistant Secretary

Ms Samantha Losanno, Assistant Secretary, International Crime Cooperation Central Authority

Ms Elizabeth Brayshaw, Assistant Secretary, International Legal Assistance

Mr Chris Collett, Assistant Secretary, Transnational Crime and Corruption

International Law and Human Rights Division

Mr John Reid, First Assistant Secretary

Mr Bill Campbell QC, General Counsel

Mr John Atwood, Acting Assistant Secretary, Tobacco Litigation Taskforce

Mr Paul Pfitzner, Acting Assistant Secretary, Human Rights Policy

Ms Sue Robertson, Assistant Secretary, International Human Rights Law

Ms Anne Sheehan, Assistant Secretary, International Law, Trade and Security

National Security Law and Policy Division

Ms Jamie Lowe, First Assistant Secretary, National Security Law and Policy Division

Ms Anna Harmer, Assistant Secretary, Electronic Surveillance

Ms Anna Sherburn, Acting Assistant Secretary, Countering Violent Extremism

Mr Cameron Gifford, Assistant Secretary, Counter Terrorism

Ms Julie Taylor, Acting Assistant Secretary, Security and Intelligence Law

Ms Samantha Byng, Acting Assistant Secretary, Policy, Capability and Engagement

Mr Samuel Grunhard, Acting Assistant Secretary, Office of the Communications Access Coordinator

National Security Resilience Policy Division

Dr Carolyn Patteson, Acting First Assistant Secretary

Mr Michael Jerks, Assistant Secretary, Critical Infrastructure and Protective Security Policy

Mr Andrew Rice, Assistant Secretary, Cyber and Identity Security Policy

Mr David Campbell, Acting Assistant Secretary, Cyber Security Operations and Infrastructure Modelling

Ms Wendy Kelly, Acting Assistant Secretary, Emergency Management Policy

Office of Constitutional Law

Ms Helen Daniels PSM, Acting First Assistant Secretary

Mr Steven Marshall, Assistant Secretary, Office of Corporate Counsel

Ms Frances Brown, Director, Freedom of Information

Mr Jeffrey Murphy, Acting Special Adviser

People Strategy Branch

Ms Rachael Jackson, Assistant Secretary

Royal Commission into Institutional Response to Child Sexual Abuse

Mr Philip Reed, Chief Executive Officer

Royal Commission into Trade Union Governance and Corruption

Ms Sue Innes-Brown, Chief Executive Officer

Mr Mark McIntyre APM, Commander, Police Taskforces

Strategy and Delivery Division

Ms Sarah Chidgey, First Assistant Secretary

Ms Ayesha Perry, Assistant Secretary, Strategy and Delivery

Australian Federal Police

Mr Andrew Colvin APM OAM, Commissioner

Mr Andrew Wood, Chief Operating Officer

Mr Ramzi Jabbour APM, Deputy Commissioner, Capability

Mr Michael Phelan APM, Deputy Commissioner, National Security

Ms Leanne Close APM, Deputy Commissioner, Operations

Australian Human Rights Commission

Professor Gillian Triggs, President

Mr Mick Gooda, Aboriginal and Torres Strait Island Social Justice Commissioner

The Hon Susan Ryan AO, Age and Disability Discrimination Commissioner

Dr Tim Soutphommasane, Race Discrimination Commissioner

Mr Tim Wilson, Human Rights Commissioner

Ms Megan Mitchell, Children's Commissioner

Ms Julie O’Brien, Director, Legal Services

Ms Padma Raman, Executive Director

Australian Security Intelligence Organisation

Mr Duncan Lewis AO DSC CSC, Director-General

Ms Kerri Hartland, Deputy Director-General

Australian Transaction Reports and Analysis Centre

Mr Paul Jevtovic APM, Chief Executive Officer

Mr Alf Mazzitelli, National Manager, Finance and Infrastructure, Chief Financial Officer

Mr Gavin McCairns, Deputy Chief Executive Officer, Corporate

Commonwealth Director of Public Prosecutions

Mr Robert Bromwich SC, Commonwealth Director of Public Prosecutions

Ms Gaby Medley-Brown, Chief Corporate Officer

Family Court of Australia/Federal Circuit Court of Australia

Mr Richard Foster PSM, Chief Executive Officer

Ms Angela Filippello, Principal Registrar

Mr Adrian Brocklehurst, Executive Director, Corporate and Chief Financial Officer

Mr Steve Agnew, Executive Director, Operations

Federal Court of Australia

Mr Warwick Soden OAM, Registrar and Chief Executive Officer

Mr Mario Torresan, Executive Director, Corporate Services

Mr Peter Bowen, Chief Financial Officer

Office of the Australian Information Commissioner

Mr Timothy Pilgrim PSM, Acting Australian Information Commissioner

Ms Angelene Falk, Assistant Commissioner, Regulation and Strategy

Ms Karen Toohey, Assistant Commissioner, Dispute Resolution

Mr Brenton Attard, Office Manager

Committee met at 09:03

CHAIR ( Senator Ian Macdonald ): Good morning, ladies and gentlemen. Welcome to the Legal and Constitutional Affairs Legislation Committee's inquiry into additional budget estimates for the 2015-16 financial year. The Senate has referred to the committee particulars of the proposed expenditure for 2015-16. The committee has set Friday, 8 April as the date by which answers to questions on notice are to be returned. We also decided that questions on notice should be provided to the secretariat by close of business, 19 February.

Under standing order 26, the committee must take all evidence in public. This includes answers to questions on notice. Everyone knows that they are protected by parliamentary privilege in giving evidence, and what that involves. It is a contempt to give false or misleading evidence to the committee, and I think everyone knows that. If anyone does require any assistance in relation to the rules of the Senate hearings, they should get advice from the secretariat, who are well versed in these things.

The Senate, by resolution in 1999, endorsed the following test of relevance of questions at estimates: any questions going to the operations or financial positions of departments and agencies which are seeking funds in estimates are relevant questions for the purposes of estimates hearings. There are no areas in connection with the expenditure of public funds where any person has discretion to withhold details or explanations from the parliament or its committees, unless the parliament has expressly otherwise provided.

The Senate has also resolved that an officer of a department shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to the minister. That resolution prohibits only the asking of opinions on matters of policy and does not preclude questions for explanations of policies or factual questions about when and how policies were adopted.

The Senate resolved in May 2009 that any claim of public interest immunity should be raised at the time. A statement that information or a document is confidential or consists of advice to government is not a statement that meets the requirement of the 2009 order. Instead, witnesses are required to provide some specific indication of the harm to the public interest that could result from the disclosure of the information or the document. I think that has all been well understood in latter years.

The extract read as follows—

Public interest immunity claims

That the Senate—

(a)      notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate;

(b)      reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate;

(c)      orders that the following operate as an order of continuing effect:

(1)      If:

      (a)   a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and

      (b)   an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee, the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.

(2)      If, after receiving the officer’s statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.

(3)      If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.

(4)      A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.

(5)      If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.

(6)      A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.

(7)      A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (I) or (4).

(8)      If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3).

(Extract, Senate Standing Orders, pp 124-125)

I also mention that Auspic has been authorised to take photographs for the Journals of the Senate. They will be here at about 10 past nine. They will be moving around, but they are aware they are not allowed to take photos of electronic communication instruments, papers or anything like that. They know that if they take a photo of the Chair, it has to be when he has got his right side to the camera!

Senator JACINTA COLLINS: Which side is that?

CHAIR: That is a good point.

Senator O'SULLIVAN: The right!

CHAIR: I just indicate too that we have a program that we try to keep to, but, under a Senate standing order, whilst any senator has questions on the particular issue, I am obliged to continue dealing with those questions until they are exhausted, which means that on many occasions this agenda, this running order, is very much only a guide. We do the best we can. With that, Attorney-General, did you want to make an opening statement, or do you, Mr Moraitis, in a general sense?

Senator Brandis: No, thank you.