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Legal and Constitutional Affairs Legislation Committee
09/02/2016
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Attorney-General's Department

Attorney-General's Department

[17:39]

CHAIR: We now move on to the department cross-portfolio, general and corporate, which includes the Defence Abuse Response Taskforce and the three royal commissions. I will take questions from anywhere in that group.

Senator SIMMS: Chair, my questions relate not to the royal commissions but are of a more general nature. Is now an appropriate time to ask those?

CHAIR: Yes, cross-portfolio and corporate.

Senator SIMMS: Thank you.

CHAIR: But you are not getting the call just yet.

Senator SIMMS: I thought I was trying my luck then. No worries.

CHAIR: We will come to you, but I will start with the opposition and Senator Collins.

Senator JACINTA COLLINS: I would like to commence with questions around Mr Dreyfus's FOI request in relation to the Attorney's diary. Attorney, your colleague the foreign minister released her ministerial diary under FOI without fuss. What makes you different here? What is the issue at stake?

Senator Brandis: This is a matter that is now before the Federal Court on appeal. I really do not think it is appropriate for me to be commenting on a matter that is currently before the courts.

Senator JACINTA COLLINS: If you do not want to indicate what the issue at stake is here, because—

Senator Brandis: Senator, your premise attributes something to me which is wrong. I did not say I do not want to comment; I said it is not appropriate for me to comment. But, if you want to acquaint yourself with the issues in the case, then you are perfectly free to read the judgement of Justice Jagot, which is under appeal.

Senator JACINTA COLLINS: What I was about to continue with was the statement that it is before the Federal Court. I also have questions with respect to costs, which I believe would be appropriate for you address at this stage.

Senator Brandis: The cost issue is a live issue before the court too.

Senator JACINTA COLLINS: Some of them may not be, so let's see how far we can get. How much did the Commonwealth spend on the diaries matter before the AAT?

Senator Brandis: I do not know that those costs have been tabulated. It may be, depending on what costs order is ultimately made, that the costs will be coming from Mr Dreyfus. I will take the question on notice and see if we can provide something to you.

Senator JACINTA COLLINS: How many staff from the AGD worked on the matter and for how long?

Senator Brandis: I will take the question on notice.

Senator JACINTA COLLINS: What was the charge to the Commonwealth from the AGS?

Senator Brandis: We will take the question on notice.

Senator JACINTA COLLINS: And what dispersements were required?

Senator Brandis: We will take the question on notice.

Senator JACINTA COLLINS: You have referred me to the matter. Will that provide the reason for your appeal?

Senator Brandis: There has been a notice of appeal filed, so it will be available for inspection on the court file, which I believe is accessible electronically.

Senator JACINTA COLLINS: But will that notice provide your reasons?

Senator Brandis: The grounds of appeal, yes.

CHAIR: I hope it would.

Senator Brandis: I know you are not a lawyer, Senator, but a notice of appeal does contain the grounds of appeal.

Senator JACINTA COLLINS: Thank you. Are there important reasons of law here?

Senator Brandis: Yes.

Senator JACINTA COLLINS: But obviously not as far as Ms Bishop is concerned.

Senator Brandis: No, that is not an appropriate observational conclusion. I am unaware of the circumstances of Ms Bishop's disclosure of her diary. A request was made in relation to some eight months of my diary, which was refused on stated grounds, which were originally upheld, then overturned, and that is now the subject of an appeal on legal grounds which are set out in the notice of appeal.

Senator JACINTA COLLINS: What negative consequences would there be for the FOI system if the AAT decision is allowed to stand?

Senator Brandis: I think that is one of the very issues of which the full court or the federal court will be seeing, so it would not be appropriate for me to comment.

Senator JACINTA COLLINS: Does the Commonwealth have an estimate on how much is likely to be spent on its appeal to the federal court?

Senator Brandis: I will take that on notice.

Senator JACINTA COLLINS: The Commonwealth would ordinarily brief senior and junior counsel for an appeal before the full court or the federal court, wouldn't it?

Senator Brandis: I am sorry, say that again.

Senator JACINTA COLLINS: I said that the Commonwealth would ordinarily brief senior and junior counsel for an appeal before the full court or the federal court, wouldn't it.

Senator Brandis: Yes.

Senator JACINTA COLLINS: How much would that ordinarily cost?

Senator Brandis: It all depends on their fees.

Senator JACINTA COLLINS: I am asking for a ballpark. You are very experienced in this field, Senator Brandis.

Senator Brandis: I cannot give you a ballpark. I do not know what fee has been negotiated with that counsel, but I will take that on notice.

Senator JACINTA COLLINS: If you do not succeed in the full court, will you go to the High Court?

Senator Brandis: That is a decision to be made depending on the outcome.

Senator JACINTA COLLINS: I will wait for your answers on notice on further costs. I will defer the remainder of my time at this stage, because the remainder of my questions move on to the royal commissions. Senator Gallagher has questions at the cross-portfolio level.

CHAIR: Senator Gallagher, you have got a little under 10 minutes.

Senator GALLAGHER: Attorney, I have some questions around the proposed equal marriage plebiscite. To begin with, can I confirm that, as the Attorney, you are responsible within the Cabinet for the carriage of the proposed plebiscite on marriage equality?

Senator Brandis: Not quite. It is a little bit more complicated than that. As the Attorney-General, I have responsibility for the Marriage Act, which would be the statute to be amended were the proposal to succeed. I also have responsibility, as you know, for antidiscrimination law, but the acting Special Minister of State, Senator Cormann, has responsibility for electoral matters, which would include the conduct of a plebiscite. I think it is correct to say that I have overall carriage of the issue, but, on the specific matter of what we might call the mechanics of the plebiscite, Senator Cormann as acting Special Minister of State has an involvement as well.

Senator GALLAGHER: So, in a sense, you have got overall responsibility, but the matters that would perhaps lead up to legislation before the parliament through the electoral matters would be Minister Cormann and should be asked through him then.

Senator Brandis: Yes. I do not want to be unhelpful—this is a bundled up issue in a sense, because the government has said there will be a plebiscite and, depending on the outcome of the plebiscite, that there would be a proposal to amend the Marriage Act. As I said, I have got the overall carriage of the issue at large, but I cannot do better than what I said before. The mechanics of the plebiscite are also a matter for Senator Cormann.

Senator GALLAGHER: It would require legislation at some point, though, wouldn't it?

Senator Brandis: Yes.

Senator GALLAGHER: Do you have responsibility for that?

Senator Brandis: Are you talking about the plebiscite or the amendments to the Marriage Act?

Senator GALLAGHER: Both.

Senator Brandis: In the event that there were to be amendments to the Marriage Act, that would be the responsibility of the Attorney-General. In relation to the plebiscite, Senator Cormann is the minister, as acting Special Minister of State, who administers the Electoral Act. There would need to be a special plebiscite act—that is a special act of the parliament to constitute the plebiscite. No decision has been made whether the carriage of that would lie with Senator Cormann or me.

Senator GALLAGHER: Presumably that would be a decision that would need to be made fairly soon.

Senator Brandis: Yes.

Senator GALLAGHER: Is there disagreement over that?

Senator Brandis: No.

Senator GALLAGHER: So it is just a decision that has not been taken.

Senator Brandis: Yes.

Senator GALLAGHER: Are you aware of what options are being considered for a plebiscite, such as a non-binding plebiscite or a self-executing plebiscite?

Senator Brandis: There are a number of different options that are the subject of discussion—public discussion, discussion between government and stakeholders. They include matters of the kind to which you have referred.

Senator GALLAGHER: When will we be aware of those options?

Senator Brandis: The government will arrive at a landing so that there will be a proposal brought forward when I take a submission to cabinet, which I expect to do in coming months.

Senator GALLAGHER: Before the election?

Senator Brandis: Yes.

Senator GALLAGHER: I have a range of questions around the plebiscite, but what you are saying is: none of those decisions have been taken yet.

Senator Brandis: I have not taken a submission to cabinet. As I say, I am the minister with the carriage of the matter. I have not taken a submission to cabinet yet to, as it were, set this up. The former Prime Minister Mr Abbott in, I think, August of last year announced that there would be a public vote on the issue. There was a little equivocation as to whether that would be a referendum or a plebiscite, but I do not think there is any doubt any longer that it is a plebiscite. So we can put that issue behind us. It will be a plebiscite and it will be conducted at some time after the election.

Senator GALLAGHER: In terms of the work that has been progressed around this under your leadership overall, was that work that commenced under the former Prime Minister or under the current Prime Minister?

Senator Brandis: It was work that commenced under the former Prime Minister.

Senator GALLAGHER: When did the Attorney-General's Department commence work on legislation, if they have?

Mr Manning : As the issue has developed, we as the department assisting the Attorney to administer the Marriage Act have considered the various options being discussed. It is difficult to pinpoint an exact date, if you like, in the sense that there have been a number of private members' bills and other bills in relation to same-sex marriage generally. So we sort of considered how the issue could play out and what we would need to do to implement policy once it is decided, over a while now. But, as the Attorney indicated, we have been thinking about the government's current approach ever since the government announced that approach—

Senator GALLAGHER: In August.

Mr Manning : so that we are ready to respond if and when government makes a decision about what it wants to do.

Senator Brandis: There has been a great deal of stakeholder consultation with representatives of both the 'yes' case and the 'no' case, led by my office.

Senator GALLAGHER: By your personal staff?

Senator Brandis: Yes.

Senator GALLAGHER: Is that around—

Senator Brandis: That has been underway for some time.

Senator GALLAGHER: Since August?

Senator Brandis: It has been underway for some time.

Senator GALLAGHER: Is there a reason why the department is not involved in that?

Senator Brandis: The department is involved as well. There are many layers of involvement. We have the department. We have my office. The Australian Human Rights Commission has taken an interest in the matter. Particularly, the Human Rights Commissioner, Mr Wilson, has been very actively engaged in stakeholder engagement from his position as the Australian Human Rights Commissioner, who takes a very strong interest in the issue. So there have been a number of, as it were, points of connection between government and various community groups representing both the 'yes' and the 'no' point of view.

Senator GALLAGHER: One of the options that I have had discussions with stakeholders around is the idea of a self-executing plebiscite, which would automatically legalise equal marriage if the plebiscite succeeded. Has advice been provided to you on that proposal?

Senator Brandis: It is a possibility that has been addressed. Let me take that on notice. I have taken a deal of legal advice from various sources on this. Whether there is specific legal advice on a self-executing plebiscite? I had better take that on notice rather than mislead you.

Senator GALLAGHER: Thank you. And, further, whether that could be constitutionally valid and how that—

Senator Brandis: There is a constitutional issue about this—about that model.

Senator GALLAGHER: It would be excellent if you could take that on notice. In terms of the work that has been done across government, is the Department of the Prime Minister and Cabinet involved?

Senator Brandis: Certainly, the Prime Minister is involved and has taken a close interest. I have had a number of meetings with him, so I assume—and I see Mr Moraitis nodding—PM&C are involved as well.

Mr Manning : Certainly we have had a discussion with PM&C in relation to the various issues.

Senator GALLAGHER: So that is a yes?

Mr Manning : Yes.

Senator GALLAGHER: They have a role. They are involved. They are part of this.

Mr Manning : They are, of course. Yes.

Senator GALLAGHER: Thank you. In a general sense, is the referendum machinery legislation the relevant legislation for a plebiscite?

Senator Brandis: It is certainly relevant but it is not as simple as that, because, as I think we have agreed, one would have to constitute the plebiscite by, as it were, a stand-alone act of parliament. Where appropriate, one would draw from the electoral machinery provided in standing acts of parliament.

Senator GALLAGHER: Is the thinking around the funding for the yes and no cases that they would both be publicly funded?

Senator Brandis: That is one of the decisions about the structure of this exercise, which would form part of whatever submission I take to cabinet.

Senator GALLAGHER: Have any drafting instructions been given to the Office of Parliamentary Counsel?

Senator Brandis: Not by my office, no. Mr Manning tells me that the department has had conversations with the Office of Parliamentary Counsel.

Mr Manning : As I said earlier, as the department assisting the Attorney to administer the legislation for which he is responsible, of course there are discussions about things. We are positioning ourselves, if you like, to be able to respond once the government determines what its policy is.

Senator GALLAGHER: So you are gearing up but not specifically drafting instructions. Is that what you are telling me?

Mr Manning : We are gearing up and, as part of that, we have been working with OPC, who have done some draft provisions, yes—should they be needed.

Senator GALLAGHER: So there are drafting instructions, but they do not have, necessarily, the final approval of how that—

Mr Manning : Of course, because we do not know what the final model is.

Senator GALLAGHER: Attorney, I think you answered one of my questions when you said the proposal would go to cabinet in coming months and prior to the election. Is that right?

Senator Brandis: Yes.

Senator GALLAGHER: Will an exposure draft be released for consultation? Is that part of the thinking?

Senator Brandis: That is one of the options on which cabinet will decide. I think I can say that my disposition is to publish the proposed amendments to the Marriage Act so that people voting in the plebiscite would know what the shape of the legislation would be, were they to vote yes or no—that people who vote in the plebiscite would know what the legislative amendment would look like in the event the plebiscite were passed.

Senator GALLAGHER: So as much information available as could be made available?

Senator Brandis: What has usually happened with constitutional referenda is that the terms of the proposed constitutional amendment are passed by the parliament, and they are obviously a public document, and the referendum question is usually, as I recall, 'Do you approve the proposed law?' So the precedent of publishing the proposed amendment and then asking, as the question, 'Do you approve it?' is well established.

Senator GALLAGHER: In terms of the plebiscite legislation, when would you envisage having that before the parliament?

Senator Brandis: It is impossible to say.

Senator GALLAGHER: Regarding the cost, is it the figures we have seen: $160 million—

Senator Brandis: I have seen those figures. I do not know how reliable those figures are. I have not, myself, asked for a costing.

Senator GALLAGHER: You have not asked for a costing?

Senator Brandis: No.

Senator GALLAGHER: So where would that figure have come from?

Senator Brandis: I honestly do not know.

Senator GALLAGHER: Does anybody know where that figure—

Mr Hall : I believe that at a Senate committee inquiry into one of the previous private members' bills the Electoral Commission provided some evidence about that.

Senator GALLAGHER: Okay, but in terms of the option that you will be taking to cabinet—that has not been costed?

Senator Brandis: The usual cabinet procedure would be to include indicative costings.

Senator GALLAGHER: Has Finance been asked to cost a plebiscite?

Mr Manning : No.

Senator GALLAGHER: Therefore, I presume it has not been budgeted for?

Senator Brandis: We have not had the 2016-17 budget yet.

Senator GALLAGHER: No, but a decision to conduct a plebiscite was taken before the MYEFO, for example. So perhaps there should have been a contingency?

Senator Brandis: I think that is a question for the Minister for Finance.

Senator GALLAGHER: From your point of view, you are not aware of whether a contingency has been allocated for this in the budget?

Senator Brandis: You are asking me to comment on the MYEFO, and I think that is a question for the Minister for Finance.

Senator HEFFERNAN: In the October estimates I raised a question regarding some material that I have in my possession. If you recall, regarding the Wood royal commission I mentioned that I had had a discussion with Wood, the royal commissioner, and asked him when he was actually going to revisit who the judges and lawyers were that used to frequent Castello's, the boy brothel in Kellett Street, Kings Cross. The royal commission's own documents—which I have here—clearly set out that the police were being paid to give notice when they were going to come and visit it.

CHAIR: Senator Heffernan, is there a question with this?

Senator HEFFERNAN: My question is going to be about what the case is against having a federal judicial commission. I just want to set up the dilemma that the institution of the law has, and the fact that Mr Wood did not recall the document that I read from that included intelligence reports on 28 people—many of them judges and lawyers, and a former Prime Minister—signed off by Gary Crooke QC, who made no comment. Mr Wood, to his credit, said that he did not recall the document, even though it was a royal commission document and it was sent to the police, and that he did everything within the terms of reference.

I have a dilemma, Mr Attorney-General. I am not too sure how you deal with this because, as you may or may not be aware, I got an order to produce documents for the fine work being done by the McClellan royal commission. I cannot commended it highly enough for the work it has done in the most difficult areas, which has been most distressing for a lot of people and unbelievable to a lot of people. I have documents that I should not have, probably, but I have kept them in close protection for a long while. I think some of these documents are documents that the Wood royal commission said they were concerned about—that files against high-profile people were mismanaged and the contents were lost. That is in the transcript of the royal commission.

I suspect I have some of the lost documents. Upon putting it to the royal commission—and, once again, I cannot speak highly enough of them or, by the way, the Judicial Commission of New South Wales, which I think does a fantastic job—I was asked to 'justify', shall I say, the case to include in the terms of reference of the McClellan royal commission the institution of the law. In fact, this is the bunch of documents that I took there. The dilemma I have is that the decision of the commissioner and his people was that these documents are outside the terms of reference of the royal commission. During that, which I was most appreciative of the interview—

CHAIR: Senator Heffernan, I do not want to distract you on what is a very important issue, but these are Senate estimates and I insist on all senators asking questions, not making statements.

Senator HEFFERNAN: There is a question! Upon the examination of one of these documents, which names a whole lot of people, it was conveyed to me that this was outside the terms of reference of the royal commission. But one of the most stunning things I have ever heard in my life was said to me. Looking me in the eye, I was told that of the list of names, 'There is only one name on this list that surprises me'. I will not say who said that, but it was a very high person.

'There is only one name of this list that surprises me.' I said, 'But what are you going to do about it?' The reply was, 'Nothing, because it is outside our terms of reference.' Given that, and given the sensitivity of the Wood royal commission, which said that some of the reason it failed in this case was a serious compromise at high levels—to the point where one person in these documents, who used to frequent and pick-up in the toilets oppose Marcellin College Randwick, in Sydney, sat in judgement on a case and gave someone a sentence to the rising of the court, finding him guilty of an offence matter of a sexual nature: that particular judge is in these documents—I am concerned that maybe the best way to fix this up is to draw a line under the past and look to the future, because I do not think there is any way to deal with this under the present system.

Some years ago I actually arranged for the police commissioner of New South Wales and the operations head of Strike Force Corry to visit a chief justice in the federal jurisdiction to report on someone they had under surveillance. When I inquired as to how that meeting went, I was told by the chief justice that there was nothing he could do in the matter because all he could do was counsel his honour. I can back all this up.

I am wondering what—and I am trying to be very careful here; having learnt from experience—the best way is to deal with this? I have been to the New South Wales judicial commission on several matters, and they do an excellent job—besides the fact that they give advice on sentencing and schooling to judges who are coming into the system. I mentioned this morning the serious inadequacies of the federal Family Court: the overburdened work they have and the lack of expertise. And, by the way, I have found out since this morning that Mr Gardner suicided—I was not aware of that. He was the person who made those outrageous recommendations.

So my question is: is there an inadequate situation in the federal jurisdiction of the law? How can it be that these people are beyond the reach of the law under the present arrangements? And wouldn't the solution be a federal judicial commission?

CHAIR: Can we leave it there. There is a question that has been asked—at long last.

Senator Brandis: Senator Heffernan, as I said to you during the last estimates when you raised this matter, these are very serious matters that you raise. What you are saying is that certain individuals, among them at least one federal judge, have committed crimes. What ought to happen is that if you have evidence that crimes have been committed, then that evidence should be given to the police. Judges have no more immunity from police investigation or prosecution than any other citizen. It is a good thing that you showed that material to Justice McClelland. No doubt he was right in saying that, as a royal commissioner, he is limited to his terms of reference, which would not deal with sexual abuse of children by institutions—by people within institutions rather than by—

Senator HEFFERNAN: Institutional treatment—

Senator Brandis: individuals, whatever walk of life they belong to. So, Senator Heffernan, this is a police matter.

In relation to federal judges, under the Constitution federal judges can only be removed by this parliament in the case of proved misbehaviour or incapacity. But, undoubtedly, if a judge has committed a crime, then that would be a ground for their removal. But before we got to that stage, the judge concerned would need to be charged, prosecuted and convicted. That has not happened yet. So these are allegations. I am sure they are made in good faith. As I say, if you have that material it should be given to the police.

Senator HEFFERNAN: Police have the material.

Senator Brandis: Well, then it is in their hands.

Senator HEFFERNAN: Can I just go further. This is a letter from the New South Wales police to me. It regarded a person who is in this list and is a lawyer. He represented a person—it happened to be Philip Bell, a notorious person who died in jail—under the false name of Philip Hill knowingly. He knowingly represented him under the name of Philip Hill. I complained to the police and said, 'Why hasn't he been charged?' They wrote back and said, 'Matters of this nature are serious and require careful examination in which proceedings can be commenced. In such matters, the prosecution must establish an intention to pervert the course of justice.' It was dead set right. He represented him under a false name. 'On the material provided by yourself, the only evidence that supports the allegation is a finding by the royal commission to that effect.' How much more proof do you need? 'I am advised that the prosecution always retains a discretionary power not to proceed with indictment, notwithstanding there may be a reasonable prospect of conviction.' That is what the police think.

CHAIR: Senator Heffernan, this is a very important issue. I have allowed some indulgence that I have not allowed to other senators.

Senator HEFFERNAN: For which I am most grateful.

CHAIR: If there is a question that you want to put to the Attorney-General on Mr Moraitis, now is the opportunity to do it. I think your question was: what are the reasons why there is not a judicial—

Senator HEFFERNAN: Senator Brandis, I am not aware of what is wrong with the prospect of having a federal judicial commission. What is wrong with that?

CHAIR: There is a question.

Senator Brandis: Senator Heffernan, although you point to—I think you mentioned one federal judicial officer; perhaps you have more than one in mind, but at least—

Senator HEFFERNAN: Mr Attorney, I have a police document here which was the request to put a judge under surveillance—which was acceded to; it is here in these documents. But there is no way of dealing with it.

Senator Brandis: Is that a federal judge to whom you refer?

Senator HEFFERNAN: It certainly is.

Senator Brandis: Okay. Ordinarily, I think it is fair to say that the reputation of the Australian judiciary—certainly the federal judiciary—has been very high, and there have been very, very few examples of criminality by federal judges. I am not aware of any examples of corruption—I know you are not talking about corruption, but there have been very few examples. There was the prosecution of Mr Justice Murphy in the 1980s. I think there may have been one or two others historically. But you establish a judicial commission where there is evidence of a sufficiently systematic or widespread problem, but the ordinary reach of the criminal law does not seem to be working—

Senator HEFFERNAN: So are we saying there is long-term—the words you just used—problem in New South Wales because they have a judicial commission? That is an admission of a method of people being able to do something about it quietly. I have had some dealings with the New South Wales Judicial Commission as recently as my good friend Justice Garry Neilson—all those dreadful things that he said and then said he was thinking out aloud and it was not biased—my God, he thinks it is all right for adults to have sex with kids as long as it is consensual. He sat on the bench hearing a case against someone who was raping his sister and he said that it was 'an out-of-date law' and it should no longer be a criminal offence. For God's sake! Haven't we got enough guts to say there ought to be a speed camera in the federal judicial system? I have people crying to me on the phone about what happens to them in the Family Court.

CHAIR: Senator Heffernan, I think the minister was answering the question, which is what estimates—

Senator HEFFERNAN: Sorry. I am trying to be careful.

CHAIR: It just makes it very difficult to run the estimates and for me as chairman to maintain discipline if there are not questions asked and answers given. The matter you raise is a very important one, but this is estimates.

Senator Heffernan interjecting

Senator Brandis: Senator Heffernan, I think what I should say to you is that, in Australian history, there have been hardly any cases. I can actually only think of one—of federal judges being prosecuted for crimes.

Senator HEFFERNAN: I am not saying there are, but if it is good for New South Wales, are you saying that that is not—

CHAIR: No, Senator Heffernan. As I understand it, he is giving an answer as to why there should not be a judicial commission.

Senator Brandis: I guess my answer is that there is no demonstrated need for one, because there have been hardly any—I can think of only one—instances of serious allegations of criminality or corruption against members of the federal judiciary.

Senator HEFFERNAN: I am not disputing what you are saying, but if that is the excuse not to have a federal judicial commission—

Senator Brandis: It is not an excuse. It is just that—

Senator HEFFERNAN: Well, if that is the reason—not the excuse—does that mean that New South Wales does have an endemic problem, because they have a federal judicial commission?

Senator Brandis: Well, I am not a New South Wales politician, Senator Heffernan, and I would not—

Senator HEFFERNAN: All right. I will give you another demonstration.

Senator Brandis: and I would not wish to comment on New South Wales state matters.

Senator HEFFERNAN: But, when a person at a royal commission says to you, 'Yes, read this. There is only one name on this list that surprises me', I think we have a problem. Can I just give you one instance: every Attorney-General, from Philip Ruddock until now—you know of these documents; you were on that committee in Melbourne that day where they said I could not table it because it would derail the hearing we were having—has looked at these documents. One of the attorneys-general that I gave these documents to, three days after I gave the documents to the Attorney-General, I got a phone call from a minister of the Crown saying, 'You're not coming after me, are you, Bill?' And I said, 'No, mate, but I did tell you you would come under observation if you moved from where you were to where you've gone.' So I am not saying where. Several days later he announced his resignation from parliament. I think there is a compromise out there and, as I said in October, the compromise is caused by people—not the secret—keeping the secret which then envelops a whole lot of people. I would not go to demonstrate to you, which I can, the compromise at work in the courts and attorneys-general and DPP officers, but it is real. You may, and other people in Australia may, decide that I am M-A-D. Sadly, I have the documents.

I got a call in Sydney from some very concerned people in the policing agencies, and they directed me, by phone, to the botanic gardens to a bench. On that bench there was a box of documents, about the size of two beer cartons, including transcripts, video surveillance and so on, because they were concerned of the cover-up to protect the institution. I note that Justice Wood did not deny that he said to me, 'We are not going to revisit that because the public would lose confidence in the judiciary', which he said he would deny if I ever said it. I rest my case, but I absolutely believe that whoever is in government should have the guts to have a process where people who have got a complaint can legitimately lodge it. I have got to be careful, I do not want to identify people, but when you are told—

CHAIR: Senator Heffernan, you are now five minutes over the allotted time.

Senator HEFFERNAN: I will continue at another time.

CHAIR: You are entitled to come back this evening—

Senator HEFFERNAN: I am most grateful for the opportunity. I could not have more praise for the royal commission run by Mr McClelland. Obviously, he is delving into areas that no-one though was possible. I have full praise for the New South Wales Judicial Commission. I am mystified at the failings in the past. I was at Aussie's here the other day and I was told—

CHAIR: Senator Heffernan, I am sorry, I must move on.

Senator HEFFERNAN: Okay. It was confirmed to me—

CHAIR: If you do have other questions you can come back later and ask them, but I do have other senators who have also been very generous.

Senator HEFFERNAN: Okay, thank you.

CHAIR: Senator Simms.

Senator SIMMS: I do not think I will take the full 15 minutes because Senator Gallagher covered some of the territory that I was going to explore. My questions relate more generally to the Attorney General's Department, in particular, dealing with the issue of the plebiscite. You mentioned before, Mr Acting Deputy Secretary, that some work of the department had been devoted to exploring this plebiscite and liaising with other departments and ministerial offices, can you give me a bit of a sense of how much time has been devoted to this project in terms of staff time?

Mr Manning : Not off the top of my head, sorry, Senator. I would have to take that on notice.

Senator SIMMS: That would be good if you could.

Senator Brandis: Senator Simms, I know that this is impressionistic, but I do have a sense that there has been a lot of work by the department on this and a lot of attention devoted to it since the latter part of last year.

Senator SIMMS: A lot of time. Can I ask what kind of staff would be devoting time to this? Is it senior level staff or—

Mr Moraitis : I would say it is about four or five staff that have been on this for a while, Senator. Mr Hall can explain what levels they are at.

Mr Hall : Thank you, Senator. The levels range from Executive Level 2 down to APS 5-6 level.

Senator SIMMS: I am very new, so you might have to tell me salary ranges.

Mr Manning : If you like, Senator, if you have APS 5-6 and an EL1 they would be doing the sort of day-to-day work that would be under direction of an EL2 and, of course, people at the table—Ms Williams is responsible for the branch, administers the Marriage Act, Mr Hall is responsible for the division which that is in, and I am responsible for the groups it in. So, we dedicate time to it as required as well.

Senator SIMMS: Just so I am clear, four or five quite senior staff—

Mr Manning : Four or five in addition to us.

Senator SIMMS: What salary level or what increment? You do not have to tell me the actual figure. Could you take me through the classifications again?

Mr Hall : EL2 down to APS6. We can certainly take it on notice and give you a table that tells you what that equates to for salary purposes.

Senator SIMMS: Yes, that would be great, and a sense of the staff time as well that has been devoted to the project. Could I also ask, as it was certainly apparent to me, Attorney, in the response that you were giving that this is certainly quite a complex endeavour involving liaising with a range of different arms of the government. It is also the first time that a government has approached a legislative question in this way. We have not had a plebiscite since, I think, the 1950s, if I am correct, or even earlier.

Senator Brandis: There have actually been three, Senator. There were the two conscription plebiscites in 1916 and 1917, and there was the national song plebiscite in, I think, 1977.

Senator SIMMS: The last one was about conscription, I think, wasn't it?

Senator Brandis: There was the national song plebiscite in 1977.

Senator SIMMS: Strange that people getting married could be compared to sending people to war. In terms of the staff time that has been attributed to this, has there also been a commissioning of high-level legal advice to deal with some of the complexities? I imagine your department would be in a position to provide that as well.

Senator Brandis: Yes.

Senator SIMMS: Can you give me a sense: is that in addition to the four or five staff that have been managing the project?

Mr Manning : Yes.

Senator SIMMS: Can you give me a sense of how many staff in addition have been working on this?

Mr Manning : Again, we will have to take that on notice. As I indicated, in response to Senator Gallagher's questions earlier, as issues are discussed as options, we are trying to position ourselves so that we can respond to them should they be chosen as the policy of the government. In doing that provisions are drafted from time to time, and in doing that issues come up and you might go off to the Australian Government Solicitor and get some advice, but there is not a dedicated team of lawyers in the department sitting around working on this issue.

Senator SIMMS: No, of course, I understand that. In terms of these legal officers that are providing this advice, can you give me a sense of, again, what kind of level they would be employed at within the department?

Mr Manning : The ones used so far would work primarily at the Australian Government Solicitor. I would have to take that on notice as I do not have the details.

Senator SIMMS: If you could, and also the amount of staff time that has been allocated to providing that advice to the government as well.

Mr Manning : Sure. They cost their time so we will be able to do that.

Senator SIMMS: Yes, that would be great. Do they charge per hour?

Mr Hall : I think they charge in six-minute units.

Senator SIMMS: Six-minute units?

Mr Hall : Yes.

Senator SIMMS: Wow, it is certainly a costly endeavour on top of the $60 million we also have for senior legal counsel providing advice.

Mr Hall : That is the usual way in which legal advice time, whether private or public, is provided. It is just a matter of convention.

Senator SIMMS: Sure. Do you have a sense of how much a free vote in the parliament would cost, Attorney?

Senator Brandis: Well, Senator, I think people have done studies as to how much per day it costs to run this place. If the point you are making, Senator, is that this could be put before the parliament more cheaply after a plebiscite, that is self-evidently true, but that is not the purpose of a plebiscite. The purpose of a plebiscite, as the former Prime Minister, Mr Abbott, indicated, was on an issue, which I think we would all accept is an issue of very great sensitivity, in which there are very strong feelings on both sides of the question to enable the choice to be made by the Australian people in a democratic exercise.

Senator SIMMS: With respect, Minister, I might ask you a few questions about the implications of this plebiscite formula. Is the government also considering, as part of its approach to this, potentially rolling out the plebiscite model to other social issues? Is that part of your thinking?

Senator Brandis: No.

Senator SIMMS: Why, precisely, has this particular issue been singled out then?

Senator Brandis: I think it is an issue of unique sensitivity, Senator.

Senator SIMMS: How so?

Senator Brandis: I cannot elaborate. My view, and I think it is the view of the government party room which discussed the issue last August, is that there are unique sensitivities about this issue. People are very emotionally engaged in it on both sides of the question. It does involve a very important social change, were it to succeed, because it would redefine marriage which most people, I think, regard as a very fundamental social institution. That is not an argument for or against the question, of course. I think most people would acknowledge that there are special sensitivities about this issue which make it unique.

Senator SIMMS: The government is not considering looking at this model for other complex social issues. The one that has been put to me is the issue of euthanasia, for instance. You would not be considering having a broad public poll?

Senator Brandis: Not at the moment.

Senator SIMMS: Not at the moment? Are you saying it is something you might look at down the track?

Senator Brandis: My own view is that the more democracy we have the better. This is the ultimate democratic resolution of a sensitive social issue. But at the moment the government is not considering the use of a plebiscite for the resolution of other social questions.

Senator SIMMS: You are certainly leaving it open, by the sounds of it.

Senator Brandis: I do not want to send any false hares running. It is not under consideration for any other sensitive social questions.

CHAIR: It is not a bad idea on euthanasia, though.

Senator SIMMS: The majority of the public support it. Can I summarise so that I ensure we have captured the things I am wanting to get costed. I am wanting to get information on the amount of staff time within the minister's department, and the professional classifications of those. But in addition I am wanting to get information on the senior legal advice that is being provided, and in particular at what rate that has been charged with the six-month increments—

Senator Brandis: We will get all of that information to you.

Senator SIMMS: I am just wanting to assist you, Attorney, in summarising the information I am after.

Senator Brandis: That is fine. But I think it is not controversial that having a plebiscite will cost a lot more money than dealing with the matter in the parliament. I do not think anybody is disputing that. But what you have to factor in is the value of having this issue resolved by the Australian people in a thoroughly democratic manner, and I do not think it is very easy to put a financial price on the benefit of doing that.

Senator SIMMS: I do not want to engage in a debate over it. Now is not the appropriate format for that. I guess what I was trying to tease out is the cost associated with this hugely complex and elaborate scheme that the government is investigating, given we have not embarked on something like this in the past. Certainly the advice I have been given demonstrates that this is a hugely costly and complex endeavour for your department to deal with. We have a huge number of senior staff that have been dealing with it—senior legal counsel as well.

Senator Brandis: With respect—although it is a plebiscite, not a referendum—we have embarked on many occasions of national public choice. In our history there have been more than 40 constitutional referenda. There have been 44 general elections. There have been three plebiscites. There have been a few half-Senate elections. So this is not something that is unusual for Australia to do. It is a large exercise, but it would be wrong to say that a plebiscite has unique complexities that a constitutional referendum, let alone an election, lacks.

Senator SIMMS: Yes, but I guess the point is that the plebiscite is being undertaken in circumstances where it is not necessary to undertake a plebiscite. The parliament has the authority to make the change. You do concede that, don't you?

Senator Brandis: I do not. From a strictly—

Senator SIMMS: You do not concede that the parliament has the authority to make a decision on this matter?

Senator Brandis: From a strictly legal point of view you are right. But of course this is not being done in order to meet some constitutional test. It is being done to engage the Australian public in the resolution of what I continue to say is a uniquely sensitive and important social issue.

Senator SIMMS: With respect, that was not the question I asked. I asked you whether the parliament has the authority to make the decision.

Senator Brandis: The parliament can and ultimately would, because if there—

Senator SIMMS: But the parliament could just amend the Marriage Act, couldn't it?

Senator Brandis: Yes.

Senator SIMMS: Yes. Thank you. I do not have any further questions on this.

Senator LAMBIE: Could I just ask a question on that while you are doing costings. Would I be able to be provided a costing of what it would cost to run that plebiscite on the day of the next election? I have been told that would be about one fifth of what it would cost if you did it stand-alone.

Senator Brandis: I will take that on notice.

Senator LAMBIE: Thank you.

Mr Manning : Can I just clarify one thing in response to the senator's comments. When we spoke about those staff, of course there is the plebiscite issue and there is the issue of amending the Marriage Act. Those same people are working on both. That work has to occur regardless. I just want to clarify that we are unable to break it down to that level. But that work would have to occur because there is the issue of amending the act and any consequential amendments that might arise. I just wanted to clarify that point.

Senator SIMMS: I accept that. Thank you.

CHAIR: Thanks for that clarification.

Proceedings suspended from 18 : 35 to 19 : 36