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Legal and Constitutional Affairs Legislation Committee
(Senate-Thursday, 24 May 2012)
Australian Customs and Border Protection Service
Mr N Perry
Rear Adm. Johnston
Australian Federal Police
Assistant Commissioner Gaughan
Senator Jacinta Collins
Senator DI NATALE
Australian Security Intelligence Organisation
Australian Government Solicitor
Senator Jacinta Collins
Australian Crime Commission
Insolvency and Trustee Service Australia
Senator JACINTA COLLINS
Mr D Smith
Office of the Director of Public Prosecutions
Senator Jacinta Collins
Mr I Anderson
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Content WindowLegal and Constitutional Affairs Legislation Committee
Office of the Director of Public Prosecutions
Office of the Director of Public Prosecutions
CHAIR: I welcome officers from the Office of the Director of Public Prosecutions—good evening, Mr Craigie, Mr Thornton and Ms Walker. Mr Craigie, do you have an opening statement from the DPP thatyou wanted to start off with?
Mr Craigie : No, thank you.
CHAIR: Okay, we will go to questions, and Senator Brandis.
Senator BRANDIS: Thanks, Madam Chair. Mr Craigie, I want to ask you about the Craig Thomson affair.
Mr Craigie : Yes.
Senator BRANDIS: You were sent by Fair Work Australia, prior to its public release, a copy of the report prepared by Mr Terry Nassios into the Health Services Union which, when subsequently published upon being tabled at the Senate employment committee, revealed 156 findings against Mr Craig Thomson. You are familiar with that report?
Mr Craigie : I am.
Senator BRANDIS: What was the date on which it was sent to you?
Mr Craigie : Very early in April.
Senator BRANDIS: Yes, I thought it was in early April.
Mr Craigie : It was Tuesday, 3 April.
Senator BRANDIS: So you looked at it, and a couple of days later you issued a short press statement which, if I may summarise the effect of it, said that—correct me if you do not think this paraphrase is sufficiently accurate—the document that had been provided to you was not a brief of evidence and, for that reason, and because the DPP is not itself an investigative agency, you were not able to progress on the basis of that report alone, to consider whether a prosecution ought to be brought against Mr Thomson, or indeed others named in that report. Is that a fair summary of the effect of it?
Mr Craigie : I think that fairly summarises it, yes.
Senator BRANDIS: All right. You subsequently referred the report to the Victorian and the New South Wales Police?
Mr Craigie : To both. I should say, after a necessary interval to have regard to whether there would be any difficulty in taking that sort of step.
Senator BRANDIS: Yes. And what was the date on which those reports were sent to the police?
Mr Craigie : It was on the 3rd of this month.
Senator BRANDIS: And presumably you received an acknowledgement from them of receipt of the document. Have you heard any more from the police?
Mr Craigie : No, we have not.
Senator BRANDIS: Mr Craigie, can you explain to the committee, please, why it was that you felt unable to progress the matter further within your office on the basis of the Fair Work Australia report alone?
Mr Craigie : I should say it was plain, even before the document arrived, that it was to be a report, not a brief of evidence—that it was an analysis of a number of inquiries that produced certain conclusions. I should say, to be fair to the author, none of them were designed to support the usual framework of a brief fit for consideration and application of the prosecution policy of the Commonwealth. For instance, there were no signed witness statements, or indeed witness statements of any kind; there was nothing by way of an evidence matrix; there were none of the usual elements that we would expect to find in a document formulated, and indeed designed, to support analysis by a prosecutor with a view to determining whether the tests under the prosecution policy were met. And, again, I emphasise it was plain that the document had the form that it did because it was, on its face—and that was plain after four days—a document of an entirely different character to whatever end, not the end of enabling a prosecution decision to be made one way or another.
Senator BRANDIS: As I understand, there were some seven volumes of supporting documents with the Fair Work Australia report. Were they sent to you?
Mr Craigie : They were.
Senator BRANDIS: Did you consider them as well?
Mr Craigie : Indeed we did.
Senator BRANDIS: Do the observations you have just made about the report apply equally to the seven volumes of other documents?
Mr Craigie : Equally, and in the totality of the report and the accompanying material.
Senator BRANDIS: It has been dishonestly—or perhaps, in charity, I should say 'ignorantly'—represented by some Labor Party politicians that your decision not to progress the matter within your office should be understood by the public to be a decision by you or your officers that there was no case to prosecute. What do you say about that?
Mr Craigie : I do not know if indeed anyone has so characterised it. I would be surprised if they had. But if anyone were to do so they would be mistaken.
Senator BRANDIS: Your position is simply that the form of the document was not something to which you could apply the prosecution policy of the Commonwealth?
Mr Craigie : And it is not a question that it came in the wrong coloured folder or anything like that. In structure, in concept and in its inherent nature it was not the kind of instrument that would lend itself to proper analysis by a prosecutor—not as a matter of unwillingness; it was in reality a matter of incapacity to use that material, as we would in the ordinary course, had we been referred a brief to consider for prosecution. It was plain that it was not referred to us with that purpose.
Senator BRANDIS: Was the purpose for which it was referred to you ever apparent?
Mr Craigie : I suppose this is the difficulty—there is a disconnect between the statutory capacity of Fair Work Australia to refer a matter to the DPP and the DPP's functions. Fair Work Australia is in effect in a position where it may produce a report and have the capacity to hand it on to the DPP, but the DPP in effect be given a product that is not within our statutory or other capacity to do anything effective with.
Senator BRANDIS: As in many matters related to the Craig Thomson affair, there has been a lot of nonsense spoken about legal terms which are not under stood sufficiently, or sometimes at all, by the people who are making the comments. It seems to me that one of the legal terms that has been insufficiently understood by some of the lay participants in this debate is the meaning of the expression 'brief of evidence'. It might be useful, just for the sake of the public record, if you were to explain what it is that lawyers mean when they speak of a brief of evidence and why a report which expresses conclusions is not a brief of evidence.
Mr Craigie : A brief of evidence would ordinarily be at least an outline of the material available and that it is anticipated would take the form of admissible evidence, viva voce, from people giving evidence, or in the form of documents that could be proven and relevant to particular allegations. It would be given to the prosecutor and the prosecutor would then analyse whether it gave rise to an offence. Sometimes that offence or those offences have been suggested by the referrer, sometimes not. But ordinarily one would expect an allegation in broad terms to be outlined if it were from the police or a similar agency. It would be analysed by the prosecutor to see whether it disclosed a prima facie case and there was a reasonable prospect that, if the case was brought to prosecution, it would succeed. Then and then only would one apply the last element of our prosecution test—that is, whether it is in the public interest to proceed. Classically the only original material that you would have received would have put you in a position to assess whether you would have a coherent, admissible body of material to go before a court, as distinct from a series of opinions or conclusions, or something that falls short of enabling you to engage all of those elements.
Senator BRANDIS: The essence really is the aspect of original material and whether the original material comprised witness statements and records of interviews, which is the viva voce evidence of witnesses, documentary evidence and expert evidence. Those are the three principal categories of document you would expect to find in a brief of evidence, are they not?
Mr Craigie : Those are the elements that close the gap between assertions by a person as to what he or she may know and what a prosecutor concludes may, with a reasonable application of the law, be sustainable and provable within a court.
Senator BRANDIS: The report in the form that it was sent to you contained none of those kinds of documents?
Mr Craigie : Indeed.
Senator BRANDIS: Did the report suggest the existence of documents of that kind? For example, did it suggest the likely existence of a record of interview with or a witness statement by Mr Thomson?
Mr Thornton : To go back one step in relation to a brief of evidence, the sorts of things that you would expect would be, as the director has said, statements attaching documents. It is not sufficient to have just the statements and documents, you have to work out how you are going to introduce the documents into evidence. In relation to the powers of Fair Work Australia, they obviously have some compulsory powers to examine people and there was some of that in relation to the material that was sent to us and transcripts of those examinations which carry with them their own considerations in terms of the prosecution in that the use of those powers brings with it derivative use indemnity. You have to separate that material, so that when you are looking at what might be admissible, those are the sorts of things that you look for.
Senator BRANDIS: There were transcripts of interviews, were there?
Mr Thornton : There were transcripts and some documents. If you think about the powers to investigate, they related to those powers. The powers that Fair Work Australia have only relate to dealing with certain entities and certain people. You might get some of that, but you would not get a complete investigation as if the police were doing it. The police have the power to deal with all sorts of people who might be involved. It is not only the form it was in but also whether all the potential evidence has been dealt with, the sources of evidence if you like.
Senator BRANDIS: Did the transcripts include a transcript of the interview with Mr Thomson?
Mr Thornton : I have some concerns about going in to that because we forwarded this material to the police and I am not sure where it is going to go.
Senator BRANDIS: If you affirm what I am putting to you, I do not think it would interfere with the police investigation, if that is what you are worried about.
Senator Jacinta Collins: Senator Brandis, that may be your opinion, but the officer is saying something different. You are dealing with evidence that may relate to a specific individual rather general evidence.
Senator BRANDIS: If it reassures you, Senator Collins, I am not going to ask about the content of it. I just want to know whether or not the material included a transcript of an interview with Mr Thomson. I will stop the line of inquiry at that point.
Senator Jacinta Collins: I think in previous estimates we have covered fairly similar ground. As I recall, Mr Nassios was asked who he had interviewed, and similar concerns became apparent upon advice at that time. The same situation applies here.
Senator BRANDIS: Well, I am pressing the question. You said there were interviews with witnesses among the materials supplied to you. We know from the report itself that the main person concerned was Mr Thomson. Mr Thomson has said on the public record that he was interviewed by Fair Work Australia once. Therefore, all I want you to do is to confirm that the transcripts included a transcript of an interview with Mr Thomson.
Mr Craigie : The reason we are both being rather diffident about this is that we have now passed this matter on to two police forces. I have no idea what the outcome, if any, will be of their investigations. I have no idea, for instance, whether, in the event that either of those police forces came to a particular conclusion, it would in fact be referred to my office. My diffidence actually attaches to the sorts of considerations I had during the fortnight or so before we sent those matters off to the police. It is for the same sorts of reasons, having regard to the fact that Fair Work Australia had compulsory powers, that these were, in some instances where statements were taken, coercive. I would certainly be diffident about answering that question without at least paying the now investigating bodies the courtesy of consulting them as to their views on the release of that information. So I prefer not to be in the position of flatly refusing to answer the question. If I was able to and I thought it prudent, I would do so. But, as I sit here now, I do not think it would be prudent to answer the question.
Senator BRANDIS: All right. So, for the reasons you have just given, you are not prepared to answer my question. You are not disputing it, but you are not prepared to answer it.
Mr Craigie : Given the caveat that I just attached to my response, I am quite prepared to take your question on notice and I will take such steps as will inform me better as to whether it is in fact prudent, sensible and proper to answer the question.
Senator BRANDIS: I do not think prudence and sense are criteria. There are very well developed criteria in the Senate about the grounds upon which an objection may be taken to respond to a relevant question. Nevertheless, I think anybody listening to this broadcast will have been able to join the dots and work out what the answer is, so for that reason I will move on. You have no reason to believe that this matter will come back to you, but you cannot exclude the possibility that it might?
Mr Craigie : I could not exclude the possibility, no.
Senator BRANDIS: And that would only be if there is a conclusion drawn that the offences committed by Mr Thomson, if any, include federal offences.
Mr Craigie : That would be the presumptive trigger, yes.
Senator BRANDIS: Yes. Would that be a judgment that the state police could make or would they, as far as you know, refer the matter to the AFP to make their own investigation about potential breaches of federal law?
Mr Craigie : It is within the capacity of a state police force to refer matters direct to the Commonwealth DPP and it is also within the capacity of a state DPP to consult with the Commonwealth DPP where there is a particular case. I am talking in the abstract, not about any possible outcomes of the present matter, where there is a mix of matters and a judgment has to be made as to whether they are predominantly Commonwealth law or, in predominance or in substance, state matters.
Senator BRANDIS: Yes, all right; that is fine.
Mr Craigie : I should say you will recall that I have handed on the whole of the Fair Work Australia report.
Senator BRANDIS: So that is the report plus the seven additional volumes?
Mr Craigie : Yes, and a number of individuals come under notice in the report and, perhaps just for once, not focusing on Mr Thomson alone.
Senator BRANDIS: I understand there are findings against other people, not just Mr Thomson, although most of the findings are against Mr Thomson. I do not think I can take it usefully any further than that for the moment. Thanks, Mr Craigie.
CHAIR: We do not seem to have any other questions for you tonight then, Mr Craigie—no questions on the budget, it would seem.
Mr Craigie : Before I leave, the man sitting to my left, Mr Thornton, is going to leave the DDP on 16 June after 27 years of sitting at the right hand of five of my predecessors and, on a number of occasions since he became the first deputy director eight years ago, sitting at the left hand of my predecessor and me. He has had a particularly distinguished career as a senior lawyer and administrator, and I think it is fair to say that the national practice in many ways pivots around the capacities of the person in his position.
Twenty-seven years is a good enough reason to look forward to another kind of life after the DPP, but I cannot let tonight pass without marking a very distinguished period of service by someone who has been absolutely indispensable to me, to the office, to my predecessors and, I must say, in every sense, a very fine servant of the Commonwealth. So I would bring that matter to the committee's attention and I am very pleased to place it on the public record.
CHAIR: Mr Craigie, thank you for that and, Mr Thornton, 27 years, we acknowledge is an incredible amount of time and hours as a public servant with the work that you have done. I know many times you have provided us with back-up, support and advice at estimates. You will be another one skipping out the door tonight, knowing that this is your last estimates. You are not alone: there are a few this week who have decided to pull up stumps and spend a bit of time to themselves and with their families no doubt in coming years.
The Senate Legal and Constitutional Committee relies on the expertise of people like you, Mr Thornton, and your dedication to the Australian Public Service no matter what political party is in office. I recognise that it is outstanding and long service such as yours that this kind of committee and parliament relies on, so thank you very, very much on behalf of all the committee members for all of the work that you have done and the very best of luck and best wishes for your next journey.
Mr Thornton : Thank you, Madam Chair.
CHAIR: So we are going to move to group 3 an hour before we thought we would. Who would have thought that? Senator Wright?
Senator BRANDIS: Before you call Senator Wright please, you will remember that at about this time last night, I was asking Mr Wilkins some questions about dealings between the Australian government and the Indonesian government. An officer kindly agreed to come back to the committee who was in a position to tell us about those dealings. We parted on the basis that he would reappear tonight, having taken the time during the course of today to consult the notes to file that would enable him better to inform himself and the committee about those dealings.
CHAIR: Was it you, Mr Sheehan?
Senator BRANDIS: No, it wasn't Mr Sheehan; it was Mr Anderson. Mr Wilkins, is Mr Anderson—
CHAIR: This is group 3 though, isn't it? These gentlemen are in group 3.
Mr Wilkins : It is actually group 3.
CHAIR: So we are in the right place now at least tonight.
Mr Wilkins : You are in the right place. He has actually gone away and informed himself and also had discussions with DFAT at the same time. There are some limitations around what we can say about these communications, but I think we can at least give you some information about the time and number of meetings and communications, if not the content of any that—if that is helpful.
Senator BRANDIS: I do not know how helpful it will be, but I am sure it will be helpful up to a point. So may we do that?
Mr Wilkins : We can do that.
CHAIR: Yes. We did talked about this last night.
Senator PRATT: I thought that was to be at the conclusion of outcome 3.
Senator BRANDIS: No, it wasn't. It was when the department came back. That was made explicit by the chair.
Senator PRATT: Okay. I misunderstood.
Mr Wilkins : I have also made some inquiries. I think that this started off—correct me if I'm wrong—as the idea that there is some sort of conspiratorial thing between Indonesia and Australia.
Senator BRANDIS: No, the word 'conspiratorial' was yours Mr Wilkins.
Mr Wilkins : No, no, I am just trying to figure out where this came from.
Senator BRANDIS: It came from reports yesterday morning's media quoting a vice minister of the Indonesian government saying that the return to Indonesia of three Indonesian nationals and the clemency granted to Schapelle Corby were, to use the word, attributed to the Indonesian vice minister, 'reciprocal'. That statement was yesterday morning denied by Senator Carr and it was during the course of the day denied by the Attorney-General, Ms Roxon. So we have a minister of the Indonesian government saying one thing and two ministers of the Australian government saying the opposite.
Mr Wilkins : The inquiries that I have made would confirm that what the Australian ministers have been saying is in fact correct. Maybe the problems surround the word 'reciprocal' or whatever you take that to mean. But there is no deal of that sort. We can go through it to the extent that we can within the parameters set by DFAT in terms of the impact it might have on our relations with Indonesia. They are very cautious about the extent to which we should or could reveal information.
Senator BRANDIS: I fully understand why that would be the case, Mr Wilkins.
Mr Wilkins : But there is nothing sinister being held back in that sense, that is all I'm saying.
Senator BRANDIS: I fully understand why there are sensitivities and I will also be pursuing this with DFAT next week, of course. However, rather than stating conclusions I would think it would be a much more appropriate and efficient way to approach this to actually get the primary evidence onto the table, subject to the reservations that you have properly identified.
Mr Wilkins : Yes, I just think you are going to be rather disappointed by how much we can reveal to you, that is all.
Senator BRANDIS: Well, let me hear what Mr Anderson, who has performed the exercise, is able to tell us.
CHAIR: Mr Wilkins, can I ask whether these questions would be best asked of DFAT next week?
Mr Wilkins : It would be, actually, I suppose, in some ways. But some of the communications have not involved DFAT. Some of the dates and personalities do not include DFAT.
Senator BRANDIS: I do not have any doubt that the main agency here is DFAT but, equally, we know that the Attorney-General's Department has had an involvement up to some level, as you have affirmed—
Mr Wilkins : That is true.
Senator BRANDIS: and, therefore, to the extent to which the Attorney-General's Department has had an involvement, obviously I want to ask you questions of that rather than DFAT.
Mr Wilkins : Mr Anderson or I can answer these questions.
Senator BRANDIS: I will direct them to you, Mr Anderson, in the first instance. Thank you very much for coming back again tonight. I appreciate that this is the second night in a row that you have been here late. I do appreciate that fact.
Since we met last night you have, may I take it, performed the exercise requested of you: you have gone to the files, identified and refreshed your memory about communications relevant to the questions I was asking you last night?
Mr I Anderson : That exercise has been going on—not all done personally but some of it at my direction, yes.
Senator BRANDIS: But that exercise has now been carried out during the course of the day?
Mr I Anderson : That is correct.
Senator BRANDIS: And you are in a position now, subject to the reservations the secretary makes for the reasons he explained, to inform the committee about what that exercise has produced?
Mr I Anderson : Yes, Senator.
Senator BRANDIS: All right. As I recall your evidence last night you said that there had been a series—the word 'series' was yours—of communications between you said the 'Indonesian consulate' but I think you meant the 'Indonesian embassy'—
Mr I Anderson : Yes.
Senator BRANDIS: and the Attorney-General's Department. And those, as I understood it, also involved DFAT. But, nevertheless, there have been a series of exchanges concerning the release of Indonesian nationals from Australian prisons.
Mr I Anderson : I think I said last night that they did not in fact involve the release of Indonesian nationals from Australian prisons; they involved discussions about Indonesian nationals who were in Australian prisons.
Senator BRANDIS: Who are in Australian prisons—all right, that is fair enough. I think the fastest way to do it, Mr Anderson, is for you to identify to the committee by reference to date and mode of communication—whether minuted telephone conversation, minuted meeting, email exchange, letter, whatever—the dates of each of those conversations and, so far as concerns the Australian side, the participants?
Mr I Anderson : Certainly. We have identified 18 meetings in the period between 25 March 2011 and to date at which the Attorney-General's Department was present as well as the Indonesian embassy, and generally—
Senator BRANDIS: Just pausing there, 25 March 2011 is the earliest of the meetings?
Mr I Anderson : Yes, I agreed to check back to November 2010—
Senator BRANDIS: Yes, that is right. So there were no meetings between November 2010 and 25 March 2011?
Mr I Anderson : There were no meetings that the Attorney-General's Department attended. I believe there were meetings involving the Department of Foreign Affairs and Trade and perhaps other agencies and the Indonesian embassy as a general consular dialogue.
Senator BRANDIS: That is very useful. So there were 18 meetings involving the Attorney-General's Department and the Indonesian government?
Mr I Anderson : That is correct.
Senator BRANDIS: You lead me through it, Mr Anderson.
Mr Wilkins : Can I just qualify that for accuracy's sake. This is what Mr Anderson has discovered in terms of his division's dealings, because I have had meetings with the Indonesians in Indonesia since those dates and here, and no doubt we have talked about prisoners.
Senator BRANDIS: Sure. That is fine.
Mr Wilkins : So I think there have been other meetings, Senator, that is what I am saying, involving people from the Attorney-General's Department.
Senator BRANDIS: Thank you, Mr Wilkins, for that qualification. Equally, I think when Mr Anderson addressed the committee last night and he talked about a series of meetings, he had in mind a particular sequence of meetings of which he was aware and which were minuted and form part of, to use his words, a series.
Mr Wilkins : But they are not a series in the sense that they lead to some logical conclusion. They deal with a whole smattering of matters. I think we have just got to say that the only thing is these meetings have in common is they have been carried out in his division.
Senator BRANDIS: All right. That is fine. Let us just get the evidence on the table and we will see where it leads us. So the first meeting was 25 March 2011. It involved whom, Mr Anderson?
Mr I Anderson : It involved the Attorney-General's Department, the Federal Police, the Director of Public Prosecutions, the Department of Immigration and Citizenship, the Department of Foreign Affairs and Trade and the Indonesian embassy.
Senator BRANDIS: And who on behalf of the Attorney-General's Department attended?
Mr Wilkins : I am not sure that we know that or that, anyway, it is that relevant, is it?
Senator BRANDIS: I will decide whether it is relevant, but do we know?
Mr I Anderson : Sorry, I was not paying attention to the identity of who from the department actually attended the meetings; I was focusing on the dates of the meetings and what was actually discussed.
Senator BRANDIS: So you are not in a position to tell us?
Mr I Anderson : I am not in a position to tell you tonight.
Senator BRANDIS: All right, that is fine.
Mr Wilkins : We need to surmise, I think.
Senator BRANDIS: That is fine, but if any of these meetings were attended by you, Mr Anderson, why don't you tell us that?
Mr I Anderson : I will, yes.
Senator BRANDIS: That was the first one. The next one, please.
Mr I Anderson : On 13 April 2011 there was a meeting attended by Department of Foreign Affairs and Trade, the Attorney-General's Department, the Federal Police, the Department of Immigration and Citizenship and the Indonesian embassy.
Senator BRANDIS: Right. Go on.
Mr I Anderson : On 12 May 2011, there was a meeting involving the Attorney-General's Department and the Indonesian Embassy. From 29 to 30 June 2011, there was a two-day meeting involving the Department of Foreign Affairs, the Department of Immigration, the Federal Police, the Attorney-General's Department and the Indonesian Embassy. On 21 July 2011 there was a meeting involving the Department of Foreign Affairs and the Attorney-General's Department and the Indonesian Embassy. On 15 August 2011 there was a meeting involving the Department of Foreign Affairs and the Attorney-General's Department and the Indonesian Embassy. On 18 August 2011 there was a meeting involving the Department of Foreign Affairs and the Attorney-General's Department with the Indonesian Embassy. On 12 September 2011 there was a meeting involving the Attorney-General's Department and the Indonesian Embassy. On 20 September 2011 I chaired a meeting involving the Department of Foreign Affairs, the Attorney-General's Department, the Federal Police, the Director of Public Prosecutions, Department of Immigration and Prime Minister and Cabinet with an Indonesian delegation from a range of different departments, but also with embassy representatives. On 28 September 2011 there was a meeting involving the Department of Foreign Affairs, the Department of Immigration, the Federal Police, and the Attorney-General's Department with the Indonesian Embassy. On 14 October 2011 there was a meeting involving the Attorney-General's Department with the Indonesian Embassy. On 4 November 2011 there was a meeting between the Attorney-General's Department and the Indonesian Embassy. On 15 December 2011 there was a meeting involving the Department of Foreign Affairs, the Department of Immigration, the Federal Police and the Attorney-General's Department with the Indonesian Embassy. On 2 February 2012 there was a meeting involving the Attorney-General's Department and the Indonesian Embassy. On 3 April 2012 there was a meeting involving the Department of Foreign Affairs, the Department of Immigration, the Federal Police, and the Attorney-General's Department with the Indonesian Embassy. On 23 April there was a meeting involving the Attorney-General's Department and the Indonesian Embassy. From 26 to 27 April 2012 there was a two-day meeting involving the Department of Foreign Affairs, the Department of Immigration, the Federal Police, the Attorney-General's Department and certainly Indonesian diplomatic representatives, though I believe there were representatives from a number of other Indonesian agencies as well. On 8 May 2012 there was a meeting involving the Attorney-General's Department and the Indonesian Embassy. They are the 18 meetings, Senator.
In relation to those meetings, for the two-day meetings, for example, there was a great range of topics and not simply crew. They were part of the annual consular consultations between Australia and Indonesia. Crew was certainly a topic but not the sole topic of many of the meetings, and when you consider that throughout this period there were some hundreds of Indonesian citizens in Australian jails or going through the criminal justice processes, it is not surprising that there would be a lot of consular notifications. To the extent that crew issues were discussed, there were standard consular issues about how to get access to Indonesian citizens, where the Indonesian citizens were actually being held in terms of which facilities around the country, concerns as to whether some were minors or adults, questions about the nature of the criminal justice proceedings that were involved, questions about the nature of age determination processes, and questions about the status of individual proceedings. So there were questions of that nature about what was happening with particular Indonesian citizens and what were the general processes.
Senator BRANDIS: That is very helpful, thank you.
Mr I Anderson : And I should add two further riders. At no stage was there any discussion about the repatriation of convicted Indonesian prisoners and at no stage also was there any discussion about Australian prisoners in Indonesia. These were all discussions about Indonesian prisoners in Australia.
Senator BRANDIS: You mention in respect of one of those 18 meetings that you chaired that meeting so you presumably have some recollection of it. Were there other meetings, Mr Anderson, that you attended?
Mr I Anderson : I believe that that was the only one I attended.
Senator BRANDIS: So you only attended one of those. Mr Wilkins, can you identify from those stats any meetings that you attended?
Mr Wilkins : I do not think that I attended any of them actually.
Senator BRANDIS: All right, that is fine. Obviously a record was kept of these meetings, hence you have been able to establish the dates and the attendees of them. May I surmise that that record also includes a minute of the topics discussed at the meeting.
Mr I Anderson : There is a record of each of those meetings. The record will vary depending on the length of the meeting, of course. But there will be details indicating what was discussed.
Senator BRANDIS: But there is a documentary record of each meeting?
Mr I Anderson : I believe that is the case.
Senator BRANDIS: You said earlier on that these meetings occurred during a time when Australian citizens were in Indonesian jails.
Mr I Anderson : If I said that then I got my words wrong. I believe I said that Indonesian prisoners were in Australian jails.
Senator BRANDIS: I think you must have misspoken. Was there any reference—so far as the records reveal or in relation to the one meeting you attended, so far as you remember—to Australian citizens in Indonesian jails?
Mr Wilkins : I think he just said that there was not any discussion.
Senator BRANDIS: I am putting the question to him specifically.
Mr Wilkins : I heard what he said. He said that there was not any discussion of Australian prisoners in Indonesian jails.
Senator BRANDIS: I am asking a question, and it is not an ambiguous question. Was there, at any of these meetings, a reference to Australian citizens in Indonesian jails?
Mr I Anderson : At no time in any of those meetings, in any of the records.
Senator BRANDIS: So far as the records reveal.
Mr I Anderson : I have had discussions with my staff as well.
Senator BRANDIS: Mr Sheehan, were you at any of those meetings?
Mr Sheehan : No, I was not at any of those meetings.
Senator BRANDIS: At what level was the Attorney-General's Department represented?
Mr Sheehan : I think we can surmise from what Mr Anderson said that the level would have fallen between his level—division head level—down to a senior officer level, but I will just confer with Mr Anderson.
Mr I Anderson : It is EL 2.
Mr Sheehan : EL 2 level up to division head level.
Senator BRANDIS: Mr Anderson, at none of these meetings—so far as the minutes reveal—is there discussion of Australian citizens in Indonesian jails. That is your evidence.
Mr I Anderson : That is correct. The nature of the discussions was that it was about the Indonesian prisoners in Australian jails. It was entirely about those consular issues.
Senator BRANDIS: Were other topics discussed, beyond the issue you have just identified?
Mr I Anderson : In the parts of the meetings the Attorney-General's Department was participating in, no.
Senator BRANDIS: So each of the meetings was limited to that single topic?
Mr I Anderson : No. As I said before, when there were the two-day meetings, the annual consular consultations, for example—
Senator BRANDIS: Yes, you did say that; that's right.
Mr I Anderson : —there were other topics, but we did not participate on any of those other topics.
Senator BRANDIS: That is fine. Thank you; that is very helpful. Mr Wilkins, you have told us that you had some meetings or conversations as well with Indonesian authorities. Did you participate in any conversations in which the topic of Australian citizens in Indonesian jails was raised?
Mr Wilkins : Possibly. I do not really recall very precisely, but possibly. I had lots of conversations in Indonesia with my counterparts, and meetings discussing a variety of things from corruption to the nature of their court system.
Senator BRANDIS: Were those meetings in the presence of a note taker?
Mr Wilkins : No.
Senator BRANDIS: Was it your practice to make a note to file or some other record of the meetings?
Mr Wilkins : No, it was not.
Senator BRANDIS: The question of Australian citizens in Indonesian jails was an important matter, wasn't it?
Mr Wilkins : I assume it is an important matter. It is certainly important to the people concerned.
Senator BRANDIS: Well, it is more broadly important than to the people concerned, Mr Wilkins.
Mr Wilkins : We talked about prisoner transfer agreements, as I told you last night. Inevitably that involves discussion not about specific people but generically about prisoners on both sides—both Australians in Indonesian jails and Indonesians in Australian jails. If you want a prisoner transfer agreement then it will involve transfer of prisoners from Indonesia to Australia and from Australia to Indonesia.
Senator BRANDIS: Of course.
Mr Wilkins : Many of my discussions were around that topic.
Senator BRANDIS: May we take it, then, that whenever you had a conversation with an Indonesia counterpart concerning prison transfers, almost inevitably that raised either directly or consequentially the question of the Australians in the Indonesian jails.
Mr Wilkins : We did not talk about them specifically, but inevitably if you are talking prisoner transfer you are talking about transfer of prisoners.
Senator BRANDIS: That is my point. Was Schapelle Corby's name every mentioned at one of these meetings?
Mr Wilkins : It was mentioned quite often by the Indonesians, actually.
Senator BRANDIS: What was said?
Mr Wilkins : I do not think it is something that I should be putting on the public record, actually. They were confidential discussions.
Senator BRANDIS: I do not want to ask you to breach any diplomatic protocol.
Mr Wilkins : Precisely. And I do not think it would be something that I could reveal in this committee, actually.
Senator BRANDIS: I understand that.
Mr Wilkins : I mean, if you really want to know, Senator, I am sure we can arrange a briefing on that.
Senator BRANDIS: Was the matter of Schapelle Corby ever raised by you?
Mr Wilkins : No.
Senator BRANDIS: So, whenever it was raised, it was raised on the Indonesian side?
Mr Wilkins : Indeed.
Senator BRANDIS: Can you give me even a rough estimate—you said these meetings were in Indonesia so you would know when you were in Indonesia.
Mr Wilkins : I could go back and discover exactly—
Senator BRANDIS: Could you check, by reference to your diary, please, Mr Wilkins?
Mr Wilkins : I could give you a rough idea; yes, I could do that.
Senator BRANDIS: Well, if you checked your diary you could give me a specific idea.
Mr Wilkins : I could tell you when I was in Indonesia; I could not tell you which day of the days I was in Indonesia I discussed these matters, necessarily.
Senator BRANDIS: No, that is fine. If we could track it down—
Mr Wilkins : I may be able to do that, depending on whether I can recall whether it was a particular meeting, but I will need to take that on notice.
Senator BRANDIS: All right. Approximately how many times have you had conversations of this kind in Indonesia since November 2010?
Mr Wilkins : Twice or three times.
Senator BRANDIS: Two or three times?
Mr Wilkins : I think it is about two or three times.
Senator BRANDIS: Would you just check in your diary and take on notice the dates. On any of these occasions, and during the course of any of these discussions, were you in company with the Attorney-General?
Mr Wilkins : No.
Senator BRANDIS: Back to you, Mr Anderson. I would like the records to which you have referred—the memoranda of these meetings—to be produced, please.
Mr I Anderson : The Department of Foreign Affairs and Trade, who are the lead agency with respect to international relations, have advised that it would not be appropriate for the details of intergovernmental discussions to be released—that that would cause damage to Australia's international relations.
Senator BRANDIS: I expected to be met with an objection. I understand the objection. I will not press the request. I would like to move on to another topic, please. Mr Wilkins, are you aware—or can I have any of your officers, please, who are dealing with the matter—of the recommendations of the New South Wales coroner in the Dianne Brimble case? Mr Anderson, unless you are involved with the Dianne Brimble case as well—
Mr Wilkins : That is Mr Anderson.
Senator BRANDIS: It is? That is a happy coincidence. I am doubly glad I got you back. I just want to show you two sets of documents. I have made multiple copies of them so that the committee will not be delayed while they are photocopied. One of them—and I must confess I am not sure of its provenance but it is headed, 'The Brimble recommendations'. I am actually not going to ask you any questions about that document; I am just giving it to you for the sake of context. The other bundle of documents is a set of correspondence which I want to take you through.
CHAIR: Senator Brandis, could you just clarify: 'The Brimble recommendations'—is this something you have typed, is it?
Senator BRANDIS: No. It is something that has been given to me and, as I said, Madam Chairman, I am not actually sure of its provenance and I do not particularly rely on it; I am just producing it because I thought it might be helpful for context, but if you have a problem with it I will not table it. Can you take up the bundle of correspondence, please. It builds up from back to front. The first letter in the sequence is a letter dated 7 June 2011, from Julia Gillard to Mr Mark Brimble. It is not very long. I just invite you to read it. It refers to a letter from Mr Mark Brimble, who is the former husband of the late Dianne Brimble, who died so tragically during the P&O cruise ship episode. The Prime Minister refers to the letter from Mr Brimble dated 17 March, which is not in the bundle:
… concerning the coronial recommendations made in connection with the inquest into the death of your former wife, Ms Dianne Brimble.
She apologises for the delay in replying, this being nearly three months after Mr Brimble's letter was sent to the Prime Minister. The Prime Minister writes:
The Attorney-General, the Hon Robert McClelland MP, has advised me that his Department is considering in detail the recommendations made by the Coroner that are relevant to the Department's responsibilities. I have asked the Attorney-General to keep me informed and to respond to you.
You might like to forward to the Attorney-General a copy of the submissions made to the inquest by you and the International Cruise Victims of Australia which are referred to in the Coroner's recommendations.
Thank you for bringing the Coroner's recommendations to my attention. I have copied this letter to the Attorney-General.
Then the next letter in the sequence is a letter from Mr Brimble on 27 June, in which he says:
I refer to the enclosed letter from the Prime Minister dated 7 June 2011. As requested by the Prime Minister I have enclosed the submission provided to the NSW Coroner and also the outline of my oral submission made at the same time.
I trust this information assists and I look forward to your speedy response.
Then more than four months pass. The next letter in the sequence is a letter to the Prime Minister, again from Mr Brimble, dated 7 November 2011. He refers the Prime Minister to her letter of 7 June, and the fact that she had handed the matter to the Attorney-General. He says:
As at today's date I have received no response for the Attorney General—
he says 'for' but that must be read to be 'from'—
not even acknowledgement of his consideration of these recommendations or receipt of the materials I sent to him directly.
Are you able to advise if the Attorney General is going to look at the recommendations?
I would appreciate your assistance once again.
Then a month later, on 9 December 2011, there is a letter not from the Prime Minister but from the Department of the Prime Minister and Cabinet, over the signature of Mr Alex Anderson, Assistant Secretary, Legal Policy Branch, where he refers to Mr Brimble's letter to the Prime Minister of 7 November. He says he has been asked to reply on the Prime Minister's behalf. He notes that Mr Brimble has not received a response or acknowledgment from the Attorney-General. Then he says:
I can assure you that the Attorney-General has been looking at the recommendations and has been engaging with his ministerial colleagues in the development of the Government's response to the recommendations.
It is anticipated that the Government will shortly finalise its consideration of the recommendations. I expect that the Attorney-General will write to you with the Government's response as soon as that consideration is completed.
Then the last letter in the bundle is another letter from Mr Brimble, copied to the Leader of the Opposition, dated 28 April this year:
Dear Prime Minister
I refer to your letter of 7 June 2011 handing this matter to the Attorney General for his response. I also note the letter from your office dated December 2011 advising that the Attorney General will shortly finalise the response to recommendations made after the inquest into the death of my former wife Dianne Brimble in 2002.
I have had no response today, even though the information has been with the Attorney General's office for over 18 months.
Prime Minister I call upon you to have this matter progressed as the cruise industry continues to grow bringing us closer to another catastrophic cruise disaster as witnessed with the Costa Concordia in Italy.
I remain available to the government to assist in this matter.
Mr Wilkins, it appears from this bundle of correspondence that, from the time the Prime Minister wrote to Mr Brimble nearly a year ago on 7 June, 2011, at which time she also sent the matter to the then Attorney-General, Mr McClelland, up to today Mr Brimble received no reply and no communication from the Attorney-General, notwithstanding that he was assured by Mr Anderson of the Prime Minister's department on 9 December:
… that the Attorney-General has been looking at the recommendations and has been engaging with his ministerial colleagues in the development of the Government's response to the recommendations.
My first question is: can you explain why there was no reply or acknowledgement from the Attorney-General for almost a year and why, to date, there has still not been one?
Mr Wilkins : Not exactly. I am just looking at the series of events. Probably the best thing I can say is that it is still really under consideration. The recommendations in the Brimble report are not straightforward—
Senator BRANDIS: Indeed, and I am going to ask you about that in a moment. But let us limit ourselves for the moment to the narrow issue of the reply.
Mr Wilkins : If I can finish, they have been thoroughly considered by the Attorney-General's Department but also require consideration by other departments and other ministers, and are in the process of—
Senator BRANDIS: I am going to give you the opportunity to deal with this, because I am interested in it, but before we get there I just want to put away this narrower issue of why there was no communication from the Attorney-General to Mr Mark Brimble. On 7 June, 2011, the Prime Minister told Mr Brimble that she had asked the Attorney-General to keep her informed and to respond to you. Assuming that is true, and assuming that on 7 June, 2011, the Prime Minister and Mr McClelland were still on speaking terms, can you explain why the Prime Minister's request to the Attorney-General to respond to Mr Brimble—let alone Mr Brimble's direct approach to the Attorney-General on 27 June—was never acknowledged nor responded to?
Mr Wilkins : I understand that there seems to have been some responsibility shared here between the Attorney-General and the Minister for Home Affairs at the time. It is not entirely clear that it is a matter that simply belongs to the Attorney-General, and it also, as I said, overlaps with a number of other ministers and portfolios. As to why there has not been a response of any sort to Mr Brimble I have no reply.
Senator BRANDIS: Dealing, then, with what we learn from Mr Anderson's letter of 9 December, where he says to Mr Brimble:
I can assure you that the Attorney-General has been looking at the recommendations and has been engaging with his ministerial colleagues in the development of the Government's response to the recommendations.
Assuming that statement can be relied upon, that is six months ago. It is nearly a year ago that Mr Brimble drew the matter to the Prime Minister's attention and the Prime Minister asked the former Attorney-General to deal with the matter. Why has this matter progressed so slowly to date and where we are we at? How far away are we from the response promised by the Prime Minister on 7 June and by the officer of her department on 9 December?
Mr Wilkins : We are still waiting for clearance from ministers to put out the response which we worked on.
Senator BRANDIS: But this matter was placed in the former Attorney-General's hands by the Prime Minister almost a year ago.
Mr Wilkins : Yes, and the Attorney-General is waiting for clearance from all material ministers before the Attorney-General can put out the response. That is the way government works. You can either go round and get everybody to agree—
Senator BRANDIS: I know that is the way the government works. It seems to be working—perhaps not only in this case—extremely slowly. Why has it taken a year? All we are talking about is the development of a response by the Australian government to a series of recommendations by a state coroner.
Mr Wilkins : I know that, but I am just explaining the process to you.
Senator BRANDIS: I understand that. I do not have any difficulty in accepting that other ministers or departments would have been involved in the development of a response but I am very surprised, first of all, that Mr Brimble was not afforded the courtesy of an acknowledgement by the Attorney-General and, secondly, that whatever response developed within the bowels of the government has taken so long. Which ministers or departments do you get to hear from?
Mr Wilkins : I am not entirely sure actually.
Senator BRANDIS: Can you find out please? You might take that on notice.
Mr Wilkins : I might take that on notice.
Senator BRANDIS: I can see you are a little taken by surprise by this. I would like to know which ministers—and I know there was a cabinet reshuffle in December and maybe that has prolonged things—have been engaged in the process which is described in the letter from Alex Anderson of 9 December 2011. I would like to know whether the new Attorney-General, Ms Roxon, has addressed her mind to the matter. We know that Mr McClelland did because we are told that in the letter of 9 December. I would like to know which ministers or departments the Attorney-General's Department, as the lead agency, is still waiting to hear from. I would like an indication or an estimate from you as to how much longer we can expect it to be for the Australian government to develop its response to the New South Wales coroner's recommendation?
Mr Wilkins : Let me take that on notice because I cannot answer that now.
Senator BRANDIS: That is why I said I was going to invite you to take it on notice. Mr Anderson, you are not Alex Anderson obviously.
Mr I Anderson : No, I am Ian Anderson.
Senator BRANDIS: Could you shed light on any of those issues, Mr Anderson.
Mr I Anderson : As Mr Wilkins has said, there has been a great deal of work done.
Senator BRANDIS: There has been a great deal of work done., has there?
Mr I Anderson : There has been a great deal of work done, but it is still not completed.
Senator BRANDIS: Are you involved in this work?
Mr I Anderson : I have had some involvement in it.
Senator BRANDIS: Do you know which ministers you are still waiting to hear from?
Mr I Anderson : I cannot add anything to Mr Wilkins's comments.
Mr Wilkins : I think I have taken it on notice.
Senator BRANDIS: It is not really satisfactory, is it? It is not satisfactory that a bereaved relative should be treated so dismissively by the government as to not receive even an acknowledgement, particularly when the Prime Minister herself has told him that she has asked the then Attorney-General to refer to him and he does not. It is not satisfactory, it seems to me, that a response from within the government should take this inordinately long period of time.
Mr Wilkins : I think there is something in what you say, Senator, but on the other hand he has received responses from the Prime Minister of Australia, who is somebody involved in the Australian government.
Senator BRANDIS: You know, Mr Wilkins, I am not accusing the Prime Minister of delay. This was initiated by a communication from Mr Brimble to the Prime Minister on 17 March, and the Prime Minister replied on 7 June. I think, in all the circumstances, that is not an inordinate delay. The Prime Minister then initiated the process and then tasked the then Attorney-General to take control of the process and to communicate with Mr Brimble. He did not do the latter. As to the former, while the Prime Minister initiated the process on 7 June, it has produced nothing as yet. You say you are still waiting for clearances from some stakeholder ministers; that is not good enough, Mr Wilkins. It is not your department's fault, I dare say. If you are waiting for others, it is not your department's fault, but it is not good enough. That is all I have for this line of questioning.
Senator Jacinta Collins: Chair, just before we move on, could we perhaps clarify the status of this—
Senator BRANDIS: I should table the letters. I will table the other document too, if you want me to. It is not strictly necessary; it just gives some context.
CHAIR: Senator Brandis can treat the letters as a tabled document.
Senator BRANDIS: All right.
Senator Jacinta Collins: And disregard the other document.
Senator BRANDIS: I just thought the other document might help to give context, but obviously it is unnecessary because there is a sufficient degree of familiarity with this matter among those at the table.
Senator Jacinta Collins: I am only concerned that it is referenced to a particular individual and I do not know if that is their intention.
Senator BRANDIS: Just hand it back then. I will not table that one.
CHAIR: Senator Brandis, are they all the questions you have for outcome 3?
Senator BRANDIS: No, but in fairness to other colleagues and out of respect for the arrangements you have made with other colleagues I should yield the call to the Greens perhaps for a little while, while I collect my thoughts.
CHAIR: I appreciate that. Senator Wright.
Senator WRIGHT: My first group of questions are in relation to the funding of community programs under the Confiscated Assets Account.
Mr Wilkins : That is also Mr Anderson.
Senator WRIGHT: Under the Proceeds of Crime Act 2002, funds from confiscated assets are deposited into the Confiscated Assets Account, which is managed by the Insolvency Trustee Service of Australia on behalf of the Commonwealth, and the funds can be used to benefit the community through crime prevention, intervention or diversionary programs. Many important community programs receive funding from the Confiscated Assets Account—for example, Odyssey House in Victoria, which provides accommodation and intensive case management services for people experiencing substance abuse issues—have received significant funding under the Proceeds of Crime Act. Under the 2012-13 budget, the government announced that it would return money from the Confiscated Assets Account to consolidated revenue. This savings measure is worth approximately $60 million over four years; however, I am concerned that it is likely to come at the expense of programs like Odyssey House and many others which may now miss out on essential funding. In the next financial year, the government will be making a saving by diverting $13.5 million from the Confiscated Assets Account to consolidated revenue. Is this a diversion of all funds from the Confiscated Assets Account?
Mr Sheehan : You have identified the funds in the Confiscated Assets Account. This is actually a quarantine of the funds: they will remain in the account and then become available in later years, after that period of quarantine. We should point out that there are many projects underway, many of which will run over the next one to two years. I will defer to Mr Anderson, who can talk in a bit more detail about how many projects we have and the nature of the projects we have that will continue over that period.
Mr I Anderson : There are currently over 200 community based projects funded through the proceeds of crime account that will be running for a period of approximately 18 months to two years, I believe. The government has recently committed to projects that involve funding for women's refuges, for example, to assist them to incorporate new security measures. There is a suite of projects which involve police citizens youth clubs and youth diversionary projects. The terms of an agreement are being negotiated with Neighbourhood Watch for a three-year package of funding for them. So there will still continue to be a considerable body of projects over the next few years.
Senator WRIGHT: So the $13.5 million which has been identified for the next financial year is essentially a quarantined amount that clearly will not be available for those sorts of programs? That will be quarantined, which means it will essentially be frozen or it will not be available as an option to be funding those programs—is that right?
Mr I Anderson : It will not be available in the forward years. It will become available in future years, I believe—in the 2015-16 year.
Senator WRIGHT: Is it not incorrect then to suggest that it is actually going back into consolidated revenue? It is not going to be available for other expenditure; it is just going to sit there?
Mr I Anderson : That is not correct. It does not go back into consolidated revenue. It sits in the confiscated assets account.
Senator WRIGHT: Can you tell me what percentage that $13.5 million represents of funds in the confiscated assets account for this coming financial year?
Mr I Anderson : By its very nature, the amount of money in the account is slightly hard to predict. It depends upon the efforts of law enforcement, and the government has relatively recently initiated a new approach to the recovery of proceeds of crime, with the Federal Police leading a confiscated assets task force. That task force has already restrained over $40 million in the last year, as opposed to $18 million being restrained in the previous year, so it is hard to predict how much money will come in. Also, in terms of the money that is restrained, it is hard to predict how long it will take to get confiscated or forfeited by a court, depending upon how strenuously the restraining and forfeiture is contested by the party who has the assets in the first place, so it is hard to predict how much money comes in at any one point of time. And while that amount of money cannot be spent, it is quite possible that there could be more money coming in well above that.
Senator WRIGHT: Did you have anything to add?
Mr I Anderson : It is not possible to come up with a percentage.
Senator WRIGHT: Is it possible to identify what amount of money was in the confiscated assets fund over the last financial year? I suppose it would vary over the course of the year but at the high point, perhaps.
Mr I Anderson : It does vary. I can certainly say at the moment there is some $31 million in the account.
Senator WRIGHT: But some of that is dedicated to payment of the ongoing programs, or is that irrespective of those ongoing programs that you have identified?
Mr I Anderson : No, that is irrespective of those ongoing programs.
Senator WRIGHT: So if that $31 million were to be a static amount over the year—and I appreciate that it will not be—then $13.5 million is quarantined?
Mr I Anderson : The savings measure in the budget takes effect from 1 July this year, so it has not taken effect yet.
Senator WRIGHT: Is it correct to understand then that, over and above that $13.5 million, it is possible that funds will then be directed to some of the programs similar to what has been previously funded?
Mr I Anderson : That will be a matter for the government.
Senator WRIGHT: I understand that the government had said that the savings from this measure will be redirected to support other government priorities. Can you provide details about what those priorities and programs will be, or is that at odds with what you are saying, which is that it will actually be remaining quarantined in the fund?
Mr Wilkins : There are no identifiable hypothecated things that we can point to, if that is what you are after.
Senator WRIGHT: If that was what was stated to be the objective of having that amount as a saving, it is a bit dissonant with what I am hearing now, which is that in fact it is to sit there and be quarantined and not directed to priorities.
Mr Wilkins : No, it has the effect of coming off the bottom line of the budget. In accounting terms, it is a saving.
Senator WRIGHT: Yes, I understand that. So essentially that might be the priority that was being referred to.
Mr Wilkins : You may like to think of it this way: it frees up the capacity to use funds out of the consolidated fund. It offsets, if you like, it going to the bottom line of the budget. So, indirectly, it does allow the government to spend or redirect that funding, if you like, but it is done through the artifice of holding this money and not expending it.
Senator WRIGHT: Thank you for that. I understand that no specific priorities have been identified. There is no hypothecated fund.
Mr Wilkins : Not really, no.
Senator WRIGHT: Would you please provide details of how much money annually has been allocated from the confiscated assets account to fund community programs over the past three years.
Mr I Anderson : Since November 2007, $32 million has gone to community programs.
Senator WRIGHT: Since 2007 until the current time?
Mr I Anderson : Yes, that is to the current time.
Senator WRIGHT: To today or this month? It is not a very specific time frame.
Mr I Anderson : That was from November 2007 until 11 May.
Senator WRIGHT: Thank you very much. That is an interesting time frame to choose. Why is it from November 2007?
Mr I Anderson : That is simply the figure that I have with me—
Senator WRIGHT: I will ask you to take on notice, then, the last three financial years.
Mr I Anderson : Certainly.
Senator WRIGHT: Thank you. Also, given that you have indicated that there are some programs that are subject to ongoing funding for about perhaps another 18 months, will there be the capacity to fund new programs that have not been funded previously in the forward estimates?
Mr I Anderson : Some of the existing programs will continue for longer than 18 months. I said 18 months to two years. I also mentioned the Neighbourhood Watch program will continue for three years, so there are those projects. It will depend on what the government wishes to do. There is money currently in the consolidated assets account and then it will depend upon the new money that comes in and whether the new money that comes in is greater than the amount that needs to be quarantined in the account.
Senator WRIGHT: Have the Australian Federal Police also received funding under the confiscated assets account at any time?
Mr I Anderson : A number of government agencies have received funding from the confiscated assets account. Funding can be made available for law enforcement purposes.
Senator WRIGHT: But no government agencies—is that what you said?
Mr I Anderson : No, I said quite a lot of government agencies have received funds.
Senator WRIGHT: Sorry, I did not hear you. Which law enforcement programs have been funded?
Mr I Anderson : It is a number. It would probably be easier if I took it on notice.
Senator WRIGHT: Thank you for that. Is it envisaged that the AFP or other government agencies would continue to receive funding for law enforcement programs in the future?
Mr I Anderson : The nature of the funding is that it is not for recurrent programs, but it is typically for pilots and things like that and then it is always at the discretion of the minister as to whether the minister wishes approve funding for one purpose or for another purpose.
Senator WRIGHT: I would now like to ask questions in relation to the update on the Australian standard guidelines for corrections. The Australian standard guidelines for corrections were last reviewed in 2004, I think. These guidelines represent a statement of national intent around which each Australian state and territory jurisdiction must continue to develop its own range of relevant legislative policy and performance standards for correctional services. My question is: when is the next review of these guidelines scheduled?
Mr I Anderson : There is a state and territory working group that is currently reviewing the guidelines.
Senator WRIGHT: What is the name of the working group?
Mr I Anderson : I am not sure it has a name.
Senator WRIGHT: So it is the review of guidelines working group, states and territories perhaps?
Mr I Anderson : It is a group that is reviewing the guidelines.
Senator WRIGHT: They are currently reviewing those. Is that what you said?
Mr I Anderson : That is correct.
Senator WRIGHT: Is there a predicted date as to when that review will be finalised?
Mr I Anderson : I do not believe so.
Senator WRIGHT: Are there any means available to ascertain when that might be?
Mr I Anderson : We are not a member of the working group so it is a matter for the states and territories. We do not operate any correctional facilities.
Senator WRIGHT: Are you aware whether the review will include consultation with community and non-government agencies at all?
Mr I Anderson : I do not know.
Senator WRIGHT: I would also like to ask some questions about a federal charter of victims' rights. At an international level, the Australian government has previously expressed support for improving justice for victims of crime. For example, in 2005 Australia became a signatory of the Commonwealth of nations statement of justice for victims of crime. I am interested in what action the Australian government has taken to implement its commitment to improving justice for victims of crime since then.
Mr I Anderson : What date did you say?
Senator WRIGHT: I said 2005.
Mr Wilkins : You will appreciate this is mainly a matter for states and territories.
Senator WRIGHT: Yes, I do understand that.
Mr Wilkins : That is where most of the—
Senator WRIGHT: But there are federal crimes now and there are victims of those.
Mr Wilkins : Are you thinking of large-scale corporate defaults and things? Are you talking about that sort of crime?
Senator WRIGHT: I am thinking of victims of trafficking.
Mr Wilkins : What sort of trafficking?
Senator WRIGHT: The trafficking of people into Australia, for instance.
Mr Wilkins : But this is very small beer compared with the sorts of victims you get at state level.
Senator WRIGHT: It may well be, but I there is certainly an argument—
Mr Wilkins : Do you want to know what the Commonwealth is doing?
Senator WRIGHT: Yes I do.
Mr I Anderson : To echo Mr Wilkins' comments, there were some 15,500 prosecutions last year for Commonwealth offences and, in the vast bulk of those, the victim was the Commonwealth. As a general rule serious drug offences or something of that nature are going to be fought against the Commonwealth. You mentioned people trafficking. That is an area where there is already a program of providing assistance to victims. There is the support for trafficked persons program. People trafficking is one of the small categories of Commonwealth offences where there is going to be a victim other than the Commonwealth.
The Commonwealth is currently considering seeking to amend the reparation order regime under the Crimes Act 1914 to ensure that reparation orders can be more widely available to individual victims of Commonwealth offences, which includes things like people trafficking but would not be limited to people trafficking. There is a cross-jurisdictional victims of crime working group which is developing a national approach to victims' rights under the auspices of the Standing Council on Law and Justice, a council of attorneys. I believe that we are participating in that exercise.
The Commonwealth Director of Public Prosecutions, in 2009, established a victims of crime policy that includes provisions for victims and the sorts of things that are covered in any relevant international statements of how you should look after victims' rights. That covers a witness assistance service, it covers the treatment of victims, keeping victims informed of steps in prosecutions if they wish to be informed and things of that nature. But generally these matters do fall to the states and territories. Every state and territory except Tasmania does have an arrangement for dealing with victims' rights.
Senator WRIGHT: Yes, I am familiar with the states' arrangements. Having received feedback from stakeholders about the need for a federal charter of victims' rights and a federal victim compensation scheme, I am not sure whether the response you have given me already covers whether or not the Commonwealth government is actually investigating or willing to consider a federal charter of victims' rights as opposed to the cross-jurisdictional work that is going on. Has that been considered?
Mr I Anderson : At the moment it is a stand-alone item—it is not being considered—but we do not know what might emerge out of the cross-jurisdictional victims of crime working group.
Senator WRIGHT: Thank you for that. I have a final group of questions in relation to the declassification of documents relating to East Timor.
Mr Wilkins : Yes, Senator.
Senator WRIGHT: Associate Professor Clinton Fernandes requested the declassification of cables written by Australian diplomats in Indonesia for the period from 1974 onwards. DFAT requested the Attorney-General, Ms Roxon, to block the release, which was done. Under the Archives Act, government documents including diplomatic cables are available to be declassified after 30 years when someone such as a researcher or a journalist asks for copies, but of course a department can claim an exemption on grounds that the material might threaten security, defence or international relations, and it appears that that is what has occurred. So my first question is: what percentage of declassified documents requested under the Archives Act would be made available in the normal course of events?
Mr Wilkins : I do not think we know the answer to that. I think that is something you would have to ask the Archives, quite frankly.
Senator WRIGHT: Then I ask: would you say that the issue of a certificate by the Attorney-General, such as in the circumstances that I have outlined, is unusual?
Mr Wilkins : It does not happen that often; it is true.
Senator WRIGHT: When you say 'it does not happen that often', can you indicate what you mean by that?
Mr Wilkins : I am advised that it would have been a couple of years, at least, since another certificate had been issued.
Senator WRIGHT: Perhaps I can ask you to take on notice a question so that I get some sense of the scale and how unprecedented or precedented this decision was. Perhaps you could indicate how many times this has occurred over the last 20 years, please.
Mr Wilkins : We can take that on notice, but you will appreciate that it is not so much how often it happens. It could happen two or three times in the next month. It depends on what documents we are talking about.
Senator WRIGHT: Yes, I understand that, but I would still like to get some sense of relativity there.
Mr Wilkins : Sure. We could give you that.
Senator WRIGHT: Thank you for that. Is it common for applicants to mount a legal challenge to a decision to deny declassification after the statutory period has expired under the Archives Act?
Mr Wilkins : I think we will have to take that on notice too. I do not know how common it is.
Senator WRIGHT: Again, when I say 'common', I suppose I would find it useful to give you a time frame, because 'common' is probably in the eye of the beholder—perhaps, again, how many times that may have happened over the last 20 years. Has any applicant successfully litigated to overturn a decision not to declassify?
Mr Wilkins : We had better take that on notice too.
Senator WRIGHT: Thank you.
Mr Wilkins : I do not know off the top of my head.
Senator WRIGHT: I ask again: is it common—and I might need to frame that in terms of a time perspective—for the Department of Foreign Affairs and Trade to apply for these certificates?
Mr Wilkins : It has happened before, if that is any help. I do not know whether Mr McDonald can expatiate on that.
Mr McDonald : Not really.
Mr Wilkins : We will take that on notice too.
Senator WRIGHT: Can you give me a sense of how many times it may have happened in the last year? Would you be aware of that?
Mr Wilkins : In the last year?
Senator WRIGHT: Yes.
Mr McDonald : There have been a couple of certificates in relation to this particular case, but, in relation to other cases, I do not think we have had another one in the last year.
Senator WRIGHT: Perhaps I will give that 20-year time frame again for that, thank you. When you say 'in relation to this particular case', you are talking about the request by Associate Professor Fernandes in relation to the diplomatic cables?
Mr McDonald : Yes.
Senator WRIGHT: Thank you. Can you tell me also how many times DFAT has applied for certificates and been denied them by the Attorney-General? Are you aware of any times that that has occurred?
Mr McDonald : I am not aware of an occasion when that has occurred, but we will take that on notice.
Senator WRIGHT: And if you could also—this might duplicate the previous question I asked, but if not—tell me how many times have they applied and been successful, again over that 20-year period. I would also like to know how many times the Attorney-General has intervened in this way overall, specifically in relation to Indonesia.
Mr Wilkins : Sorry, what do you mean by 'intervene overall'?
Senator WRIGHT: Has signed a certificate suppressing the release of documents that have been requested.
Mr Wilkins : You have asked that already.
Senator WRIGHT: I think I have asked that already! Yes. I would like to have an identification then as to how many times in the overall total that you have given me relate specifically to Indonesia.
Mr Wilkins : So, how many of these relate to Indonesia?
Senator WRIGHT: Yes, thank you. Then a subcategory of that is Indonesia's dealings in East Timor. The other aspect of that question on the overall number is a breakdown by country and region of the decisions to suppress the release of documents.
Mr Wilkins : What do you mean by 'region' for this purpose?
Senator WRIGHT: Perhaps 'state' might be the easiest way to identify what 'region' would mean there.
Mr Wilkins : All right.
Senator WRIGHT: Does the Minister for Foreign Affairs have the power to intervene directly to declassify or release documents in this way?
Mr McDonald : This power is with the Attorney, not the Minister for Foreign Affairs.
Senator WRIGHT: Are you aware of any other power that the Minister for Foreign Affairs would have to intervene in a process where consideration is being given to declassify documents under the Archives Act?
Mr McDonald : I will have to take that on notice. I am not aware of any power to.
Senator WRIGHT: By that I mean a formal legal power as opposed, obviously, to making a representation to a colleague, or something like that.
Mr Wilkins : We are not aware of anything but you will have to ask the Department of Foreign Affairs.
Senator WRIGHT: If I get an opportunity to. If you could possibly take that on notice I would appreciate that as well. Finally, does the Attorney-General have the power to inspect the documents and lower the documents' level of classification without completely declassifying them?
Mr McDonald : The Attorney-General's decision in this is to determine whether she considers it would prejudice security, defence or international relations to release the material or whether that is in the public interest. She makes her decision one way or the other. Clearly, if she rejected it, it might be possible for people to come back to her with an amended proposal but there is no power to do what you say.
Senator WRIGHT: Thank you. Does the Attorney-General have the power to release the documents only to certain parties?
Mr McDonald : One of the things we need to make clear here is that the documents in this particular case that we are talking of are documents which are being presented to the AAT in relation to the question of why certain information needs to be protected. Clearly, these documents in this case would be available to the AAT to make that decision.
Senator WRIGHT: One of the reasons I am asking that question is that many of these documents are highly likely to relate to the Balibo Five murders. Does the Attorney-General have the power to inspect the documents and release only those documents which relate to ongoing criminal investigations, for instance, the Balibo Five investigations currently being undertaken by the Australian Federal Police?
Mr Wilkins : It is probably worth it if Mr McDonald explains a bit more to you about how this operates, because I think the way you are asking the question suggests that you think this is something to do with the Attorney classifying documents. In fact the Attorney-General has the capacity to issue an affidavit to a tribunal that is determining certain matters. Mr McDonald, do you want to explain exactly what is happening in this case.
Senator WRIGHT: I would appreciate that. And perhaps if I can give context to help you with your answer. It is also an inquiry into whether, for instance, that Attorney-General could choose to release the documents only to certain parties, such as the Australian Federal Police investigators, as opposed to a legal-decision-making tribunal.
Mr Wilkins : I do not know. Maybe Mr McDonald can expatiate on whether that is the decision.
Senator WRIGHT: That is what I am interested to know.
Mr Wilkins : I think it is a matter for the Archives authority and probably other people like the head of DFAT. Or the DFAT minister may have some capacity, I would imagine, in relation to documents that are DFAT documents.
Mr McDonald : Basically the government has responsibility to protect security information where appropriate. The Administrative Appeals Tribunal enables the Attorney-General to issue public interest certificates over material that would prejudice security, defence and international relations. Essentially, Mr Fernandes has appealed against a decision of Archives to exempt certain documents from disclosure under the Archives Act. He has appealed against that. The documents that the Attorney has issued a certificate to protect are affidavits given to the AAT to explain why the agencies want to have these documents exempted. The AAT can see the affidavits and it can see all of these documents, and the AAT will make a decision as to whether or not the documents should be released. So all that is being protected here by the Attorney's certificate is the affidavit that outlines the reasons why certain documents should not be exempted. Those affidavits are very confidential because they have sensitive matters in them. Also, the certificate does cover some evidence that is given. So it is not the Attorney classifying things; it is a question of archives deciding to exempt certain documents. The AAT is now looking at that decision and deciding whether or not it is merited, relying on these affidavits.
Senator WRIGHT: When you say that Archives decided whether to exempt certain documents, do you mean that they would be exempting certain documents from being classified to make them available to the public, or is it the other way around.
Mr Wilkins : That is right. That is the issue at stake.
Senator WRIGHT: So they may have made a decision that they would exempt them, to make them available, and then there is an affidavit and a process whereby the Attorney-General, on the request apparently of DFAT—
Mr Wilkins : No, I think it is rather probably Archives has decided not to release them. Is that right?
Mr McDonald : Yes.
Senator WRIGHT: That is what I am trying to clarify. So these documents are classified but they are available to be declassified after 30 years.
Mr McDonald : Sorry, I got distracted then.
Senator WRIGHT: I am just trying to really clarify the process.
Mr McDonald : The process is that Archives decided to exempt some material—
Senator WRIGHT: I am not sure what you mean by 'exempt'. Can I just clarify what I think—
Mr McDonald : Essentially, material gets released after 30 years.
Senator WRIGHT: Automatically?
Mr McDonald : Yes.
Senator WRIGHT: I see.
Mr McDonald : And Archives decided not to. Based on expert advice from the department of foreign affairs and the Department of Defence, Archives exempted various material because of their security sensitive nature despite the passage of time. Dr Fernandes appealed against that and the AAT has to then look at the decision and determine whether it was reasonable or not to exempt it. Of course, the agencies—those with an interest in this—have to put evidence before the AAT. Now it is that evidence that is supersensitive in its own right. If you were not able to do it that way, so if you were not able to have this exemption, then the whole point of the exemption would be gone.
Senator WRIGHT: I think I understand. If I could just clarify, please, I am sorry, that the default position is that after 30 years the documents are declassified unless there is a representation from an interested department on the basis of national security?
Mr McDonald : That is exactly right.
Senator WRIGHT: In which case the Archives make the decision to exempt them from that declassification and then a person has a right to appeal to the AAT about that and then there is evidence given including an affidavit by the Attorney-General. All right, thank you.
Mr McDonald : No, by the relevant parties.
Senator WRIGHT: The Attorney-General's Department, I suppose, oversees that process.
Mr McDonald : Yes.
Mr Wilkins : And the Attorney can say, 'These affidavits are to be kept confidential for the purposes of these proceedings.'
Mr McDonald : So you could have a decision after reading the affidavits to say, 'Oh, no, I think that should be released. There shouldn't be an exemption.' But the affidavits would still be protected, because they go into the reasons.
Senator WRIGHT: Thank you very much for clarifying it.
Senator RHIANNON: On 16 May it was reported in the Herald Sun that the Attorney-General's Department had identified several places as potential breeding grounds for terrorism. How many places are on this list, please?
Mr Sheehan : The Attorney-General's Department has a countering violent extremism program and that program focuses on such things as grants and role models. We also work through the national counterterrorism committee with states and territories on projects in the community. We do not identify areas and we do not have any intelligence function of the type you have described.
Senator RHIANNON: So the implications in that article were wrong?
Mr Wilkins : Yes.
Senator RHIANNON: In May the US homeland secretary and the Attorney-General announced four joint statements. I want to deal with the joint statement which commits Australia and the US to share law enforcement data to combat crime and to expand information sharing to counter violent extremism. Is the joint statement public and could you table it if it is?
Mr Wilkins : Part of the answer is yes, and in that case I see no reason why not.
Senator RHIANNON: Is it here to be tabled?
Mr Wilkins : We have got one copy here, I think. Do want to ask questions about it though, because if you take it away and copy it now we will not be able to answer the questions?
Senator RHIANNON: Yes, if it could be copied, and I will go on to other things. I probably will not have the time to look at it properly but we will see how we go. I have got some other questions we can move on to. I want to move to the Parliamentary Joint Committee on Intelligence and Security. Mr Wilkins, before we go on to the parliamentary joint committee, what role has the Attorney-General's Department played in the COAG review?
Mr Wilkins : I am not sure we played any particular role in the COAG review at all. I think we probably assisted the Department of the Prime Minister and Cabinet in some of the matters—trying to get some of the names together of people who might be on it. When it eventually starts going, I think we will be helping to service the COAG review.
Senator RHIANNON: Considering the delay, has the department done anything to push it along?
Mr Wilkins : I am not sure the nature of the delay is such that there is anything I can do to push it along. I cannot really pick up the phone and say, 'Can you get on with it?'
Senator RHIANNON: No, I was actually asking if you have done anything?
Mr Wilkins : That is what I am saying. I am not sure what you would expect me to do.
Senator RHIANNON: To make it happen.
Mr Wilkins : But it is not my decision. We have done everything we can do.
Senator RHIANNON: I know. We are bouncing around just trying to get a handle on this extraordinary delay.
Mr Wilkins : We have done everything we can do for the thing to occur. It is involved in other processes. I think you have talked to officers of the Department of the Prime Minister and Cabinet about it, have you not?
Senator RHIANNON: Yes, we have. But it is so vague. We just keep trying to understand why there is this delay. To move on: why is the Attorney-General's Department not waiting for this review before pushing ahead with further expansions of the antiterrorism laws?
Mr Wilkins : What further expansion is that?
Senator RHIANNON: What the Attorney-General foreshadowed. A parliamentary joint committee is being set up. The Attorney-General has certainly set out various objectives that need to be achieved.
Mr Wilkins : I am not with you.
Senator RHIANNON: I will phrase it another way. Why is the Attorney-General not waiting for the COAG review before pushing ahead with this parliamentary joint committee?
Mr Wilkins : Because the matters the parliamentary joint committee are dealing with have nothing to do with the COAG review.
Senator RHIANNON: Nothing? Even though the COAG review is looking at our intelligence laws and the—
Mr Wilkins : No, the COAG review is quite specific. It is relating to those particular laws which were enacted with the states and territories after 9-11. There were a number of particular statutes where there was an intergovernmental agreement that they would be reviewed. So that is what the COAG review is. It is quite specific and it does not include anything which is before the Senate.
Senator RHIANNON: You really say that is irrelevant to the Parliamentary Joint Committee on Intelligence and Security?
Mr Wilkins : Yes.
Senator RHIANNON: I am still trying to understand the process here. What is the relationship between the inquiry—I am talking about the parliamentary joint committee here—and the role of the monitor?
Mr Wilkins : I guess there could potentially be some overlap. But the monitor is really looking at existing laws. This inquiry is presumably looking at new law and new policy in some areas.
Senator RHIANNON: Surely, Mr Wilkins, if you are looking at new laws, you should be considering first whether the existing laws cover it. At least you would have to agree that we are in the same ballpark.
Mr Wilkins : The other thing is that the monitor is essentially dealing with counterterrorism matters. The ambit of the matters going before the inquiry are much broader than that.
Senator RHIANNON: But it would still cover that, wouldn't it?
Mr Wilkins : Theoretically, I guess you could. What is the point of the question, though, Senator?
Senator RHIANNON: The point of the question is to understand the process with all these different aspects of government looking at intelligence and how to counter terrorism so that we can then make an assessment and allow democracy to work. I think that is what we are trying to achieve, Mr Wilkins.
Mr Wilkins : I think the Attorney's view is that the parliament is probably one of the key institutions of democracy, and therefore sending this matter to a committee of the parliament to have a look at is probably a good thing to do in terms of furthering democratic accountability in policy development.
Senator RHIANNON: But, surely, it is legitimate to ask the question and for you to answer that question thoroughly about what that relationship is, because at the moment we have new reviews, we have—
Mr Wilkins : As I say, I think the answer is that the monitor looks at existing law and gives a view to the government and to the parliament more generally about what they think about existing law. In relation to counterterrorism in particular, what the inquiry, on the other hand, is looking at is a range of issues that go beyond counterterrorism and deal with other issues around cyber, the future of telecommunications interception and procurement—a variety of issues that go beyond that. So there could be some overlap between what the monitor could do and what the inquiry will do. I think that is a fairly insignificant overlap in a sense. I think the Attorney's judgement is that the parliament, after all, is meant to be representing the people and that is where the laws are going to have to be enacted. So why wouldn't parliament inquire into this?
Senator RHIANNON: I am sure the monitor is also doing his best for the people. Mr Wilkins, can you confirm that the reference for the Parliamentary Joint Committee on Intelligence and Security has been accepted?. The reference from the department is what I am trying to ascertain.
Mr Wilkins : I think the answer is that the committee is getting more information; it is getting a briefing. It has already been said at this committee hearing that they are being briefed tomorrow and so the terms of reference have not been settled.
Senator RHIANNON: Is it accurate to summarise that answer by saying that it is getting close; it may be finalised tomorrow?
Mr McDonald : We cannot pre-empt what the decision of the parliamentary committee will be.
Senator RHIANNON: No, I was not asking that. I was trying to get an idea. There are so many different processes going on. Do you expect it will?
Mr Wilkins : We expect it and hope that they will make a decision soon. But it is not for us to tell them when they are going to make a decision.
Senator RHIANNON: Thank you. To go back to the US-Australia Joint Statement, what type of information will be shared? Is it law enforcement data and other information? I am trying to get an idea of what type of information it will be. Do you want me to repeat the question?
Mr Wilkins : No. Do you want us to say something about that?
Senator RHIANNON: Yes. The question was: what type of information will be shared?
Ms Lowe : The joint statement that you are referring to deals with a number of matters, counting transnational crime, terrorism and violent extremism. On the question about what sort of information will be shared, can I just ask you which part of that agreement you are referring to, because—
Senator RHIANNON: It is only one page.
Ms Lowe : Yes, that is right.
Senator RHIANNON: No, it is one page and another paragraph. I am asking: will law enforcement data be shared, and what other types of information will be? It is an agreement between two countries to address violent extremism. Clearly there must be more detail than this, so I am trying to ascertain the very important issue of what information is going to be shared between our two countries.
Mr Wilkins : I think, actually, that this is the beginning of a conversation. In fact, the Attorney and I were just in Washington talking to Secretary Napolitano, and at that meeting we agreed, for example, to exchange people in terms of the computer emergency response teams of the United States and Australia so that people could get to know how, in our case, the American organisation actually operates and, in the case of the US, how the Australian organisation works, and so that people could better identify exactly what information and protocols should apply to the exchange of information. So this is pretty much a very high-level conceptual document and there is not, if you like, underlying this a whole list of documents or information that is going to immediately begin to whiz across the Pacific between the US and Australia. I think that what is going to occur on the back of this is very much a conversation—for example, in relation to countering violent extremism, what their best practice is, what they are doing in terms of working with communities in the United States to counter violent extremism and what programs they have going, and similarly what we are doing here. On the back of that, we might be able to exchange information about the efficacy of different approaches and different programs in the two countries. That is really, I think—
Senator RHIANNON: Could I just ask, just to clarify: are you saying it is more about protocols than actually sharing information at this stage?
Mr Wilkins : It is a bit more than protocols.
Senator RHIANNON: Are you going to be sharing information?
Mr Wilkins : There is actually one area which this agreement picks up, which I will get either Mr Sheehan or Ms Chidgey to elaborate on. It is in relation to organised crime. There is one specific area where there will be information of a rather more concrete and specific sort exchanged.
Senator RHIANNON: It does actually get a whole paragraph in your statement.
Mr Wilkins : Yes, and that is what I am referring to.
Ms Chidgey : There is a reference in this document to having taken steps to better prevent, detect and investigate transnational crime by sharing data. Those steps that have been taken refer to a memorandum of understanding that was signed by the then Minister for Home Affairs and Justice and the US Ambassador; I think it was in November last year. That was made public and released at that time. It covers fingerprint data, DNA data and some personal information. It is subject to the laws of both countries for those categories of information, which means DNA data will not be shared at this point in time under that agreement. But the agency responsible for implementing it is working on implementation arrangements at the moment to engage more streamlined sharing of fingerprint data.
Senator RHIANNON: Thank you, that is what I was after. What do you mean by 'violent extremism'? Is there any definition or restrictions written into the statement?
Mr Wilkins : In this agreement or just broadly?
Senator RHIANNON: I am trying to understand how you define violent extremism.
Mr Wilkins : I do not think we are defining it. It is a general term that is used.
Senator RHIANNON: Good. Could the Occupy movement be covered by this statement?
Mr Wilkins : Probably not. That is not what we generally mean by violent extremism in this context.
Senator RHIANNON: Or 'countering transnational crime, terrorism and violent extremism'. Would the Occupy movement be covered by any of those?
Mr Wilkins : I do not think so. Not unless they get into drug trafficking and stuff like that.
Senator RHIANNON: Can environmental groups fall into this category?
Mr Wilkins : I do not know. If they start smuggling arms or get involved in people trafficking, then they would also be involved. But I imagine environmental movements are not inclined to do that.
Senator RHIANNON: Do you remember the Scott Parkin case?
Mr Wilkins : No, I do not.
Senator RHIANNON: It was only back in 2005. Scott Parkin is a US citizen who was in Australia He had attended a few protests here. He was picked up by ASIO, held in solitary confinement and then deported. It actually came up in Senate estimates at the time. Would a case like that be covered by this?
Mr Wilkins : I do not know enough about the Scott Parkin case to say whether that involves violent extremism.
Senator RHIANNON: That was never suggested in the material I have read about him, but there was certainly cooperation between the security forces in Australia and the US, with the young man then being deported. It seems as though it would be something that would easily fit into this when you read what actually happened.
Mr Wilkins : Countering violent extremism is not really about taking coercive action against people who are likely to be violent extremists or in danger of becoming violent extremists. It is about actually preventing that occurring in the first place. It is a prophylaxis, a prevention. In other words, if you are confronted with violent extremism, your program probably has not worked in that sense.
Senator RHIANNON: But I do draw your attention back to the term 'countering transnational crime'. This young man was locked up. There were no issues of violence as far as I am aware, except that he had been to protests et cetera. Does that fall under 'countering transnational crime'? He is a US citizen who protested at global events in Australia. He ended up in solitary confinement in Australia and was deported.
Mr Wilkins : Had he committed some serious crime?
Senator RHIANNON: Not that I am aware of. Having said that, maybe you regard protesting against some of the globalisation events in the early 2000s as serious.
Mr Wilkins : It depends whether the person has committed some serious crime. A transnational crime would have to be relatively serious to qualify under the exchange of information provisions of the MOU. I do not think it is a problem for people who are not involved in criminal activities.
Senator RHIANNON: We might move on to the issue of the sharing of the information. What type of data will Australia hand over to the US as part of this agreement?
Mr Wilkins : I think Ms Chidgey just outlined that.
Senator RHIANNON: Can an individual find out what information has been provided to the US about them?
Mr Wilkins : I do not know.
Senator RHIANNON: Isn't that rather important for Australian citizens to—
Mr Wilkins : No, it will depend on the circumstances.
Senator RHIANNON: I am not saying that they should know, but that we should at least understand the process.
Mr Wilkins : Suppose we are talking about Mexican drug cartels or something, and information is flowing across the Pacific in relation to the identification of such people. I think it might actually undermine operational matters—
Senator RHIANNON: You know that I am not suggesting we undermine such. I am talking about Australian citizens who may have concerns that there is information being collected about them. Can an individual find out what information has been provided to the US? There must be something about safeguards.
Mr Wilkins : No, that is what I am saying. The normal privacy laws et cetera will apply, so if they could have found out under the existing laws here now they will still be able to find that out.
Senator RHIANNON: So there are no judicial safeguards in place for this new arrangement?
Mr Wilkins : There are judicial safeguards in this country now.
Senator RHIANNON: Yes, but we are entering a whole new realm. It sounds like I will have to go to question—
Mr Wilkins : No, just to be clear about this, we are not inventing a whole new system of law around this. This agreement to exchange information will be done within the existing laws of both countries. It is not some artifice to sidestep the existing laws and protections of both countries.
Senator HUMPHRIES: I will follow up on some of the questions I was asking last night about the upgrade to emergency alert. I was told that negotiations are proceeding with Optus and Vodafone to deliver the upgraded emergency location based alert system, but that it may not be in place in time for the coming summer. Has the technology that Telstra is rolling out been trialled or tested in location based situations so far? Or has it not reached that stage yet?
Mr Rothery : We understand that a feasibility study was done prior to the contract being negotiated between the Victorian government and Telstra. We are also aware that the design that has been contracted is slightly different to that which was tested in the feasibility study, and that it will require some other testing as the system is being built because of those modifications.
Senator HUMPHRIES: When will that testing take place?
Mr Rothery : We understand it will take place as the system is rolled out, so that there will be testing between now and the end of the calendar year.
Senator HUMPHRIES: I think you said yesterday that it was expected that the Telstra network would be available for operation by November.
Mr Rothery : November is what we understand from Victoria.
Senator HUMPHRIES: Will that be across the whole of the country by November or only parts of the country?
Mr Rothery : It will be the whole country.
Senator HUMPHRIES: With the negotiations with the other telcos, is it still possible that agreement might not be reached on the terms of the rollout? For example, over the issue of pricing?
Mr Rothery : The negotiations have to be to the satisfaction of the Victorian government's procurement policies relating to value for money and their confidence that the tendered designs will meet the specifications which Victoria has negotiated with all the states and territories. So it is up to the Victorian government to determine whether the proposals meet both of those criteria. They would be obliged, if they did not meet those criteria, I understand, not to enter into an agreement.
Senator HUMPHRIES: What would happen if that were the case? You would end up with one telco offering this service but not others.
Mr Rothery : That is the current situation because there is not a concluded contract with the other two carriers. We understand both that Victoria is actively pursuing negotiations with the carriers and that the other two carriers recognise the public good of the project and are entering into genuine negotiations. But those negotiations are under the control of Victorian government.
Senator HUMPHRIES: I assume that we cannot have information at this point about what the cost terms of the contracts might be because that is presumably still a matter of negotiation.
Mr Rothery : That is correct.
Senator HUMPHRIES: But in due course, when the contracts have been signed and settled, will that information be available to us?
Mr Rothery : We understand that the Victorians would be obliged to make that information publicly available. We have cooperated with them to date in not publicly releasing the offer of Commonwealth funding so as not to distort the negotiation process.
Senator HUMPHRIES: Lastly on this, there are, of course, other minor telcos providing coverage around the country. What happens to them? Will there be separate negotiations then with them in order to—
Mr Rothery : We understand that there are only three telecommunications carriers that offer voice services to mobile phones and that what you see in terms of other branding are effectively licensed resellers for those three carriers. So a customer may have an account with an organisation with a different name, but the telecommunications service would have to be provided either by Telstra, Optus or the new Vodafone Hutchison conglomeration.
Senator HUMPHRIES: I want to ask some questions about the DisasterWatch phone application that I asked about on the last occasion. But you are not the gentleman to deal with that.
I asked a question on notice—question 54—on the last occasion, and in the answer the department said it would 'monitor ECP data to identify trends in non-genuine calls' to the emergency numbers. How will the department establish a causal connection between its DisasterWatch application and non-genuine call data?
Mr Sheehan : Since the last estimates we have continued reviewing the feedback of the DisasterWatch community engagement website, and it has invited engagement about how this works. We undertook that we would come back if we had specific feedback regarding its impact on 000 usage. We have not had specific feedback to date, but in our survey we are including questions regarding the impact of this application around Australia, and it is envisaged that this will further assist in determining what impact the application is having in respect to unnecessary 000 calls. We do not have information that will allow us at this point to make a causal link and say that the number of 000 calls is directly affected by it; we can say that the feedback overall on the DisasterWatch application has been very constructive and helpful to us and that it sits in the top five percent of popularity of the apps of the class of app it is in. To give you a sense of it, there have been 15,000 downloads of the phone application so far, and as we get more information about it we will keep you informed.
Senator HUMPHRIES: If you do not have that information as yet, on what basis did the former Minister for Emergency Management say that the DisasterWatch application had resulted in fewer calls to 000?
Mr Sheehan : I think it was a reasonable assumption at the time that this would be one of those tools that would contribute to easing pressure on 000, given the number of non-genuine calls, as they are called, that regularly go to 000. At the time of the launch I think that statement was made.
Senator HUMPHRIES: 'Supposition' is probably a better word, since there was no evidence available at all of any impact on calls to 000 at the time, was there?
Mr Sheehan : It was at the time of launch.
Mr Wilkins : But it was an intelligent supposition, when you think about the dynamics of it.
Senator HUMPHRIES: It might be a very intelligent supposition, but it is still a supposition. I think it is fair to assume that ECP data regarding non-genuine calls will fluctuate according to the time of year. I assume in summertime when there is lots of news about fires and things like that there are more of those sorts of non-genuine calls than at other times of the year. Isn't it possible that the app, because it gives people information, might actually lead to an increase in the number of non-genuine calls? It is an extra source of dissemination out to the community about this network and about what it is possible to do using the network.
Mr Sheehan : I think it would be more likely to lead to genuine calls because of the information available to people. If they got information that indicated that they were not near any kind of disaster, anything to be concerned about, that would be reassuring. If there was information indicating that they might be, then it could. But I should stress that this is one tool to assist with reducing calls to 000. One of the other things that has been occurring nationally is work with all the states and territories to ensure that there are common police and emergency services numbers across the country. This is a program we are working through in steps to try and ease that pressure on 000.
Senator HUMPHRIES: With the greatest respect, it is an application which simply directs you to existing information from websites. It does not do anything else. It does not provide you other kinds of applications; it is just to take you to websites where this information is already available. An initial cost of $110,000, when there is only supposition to demonstrate that it will actually make any difference to the number of non-genuine calls to 000, does not sound like good value for money to me. Will you have hard evidence in due course that it is good value for money?
Mr Sheehan : We will be working with the feedback we get on the app, which is how to make it as effective as we can, and we will keep you informed of both the feedback we are getting and what advances we are making with that application to make it as valuable as possible.
Mr Wilkins : It is not just to get people off the 000, you will appreciate. It is actually to give people information. It is not designed—
Senator HUMPHRIES: Information they can get already from a website. It is like a portal to other websites. There is some possible value, I agree.
Mr Wilkins : We are trying to action, I suppose, the first steps to establishing an information base. Information and intelligence in this area is really important. This will grow over time. It is not just about getting people off 000, though.
Mr Sheehan : The Australian Emergency Management Institute, which is part of the department, worked hard on trying to establish this and get feedback from users on what would be used. You are absolutely correct to say it is accessing other information from various websites, but we understand bringing it together in this way is beneficial, as witnessed by the number of downloads we have had so far. Its rating is reasonable for the first generation of an application, on the basis of the feedback.
Senator HUMPHRIES: Are there any plans to upgrade the application?
Mr Sheehan : That will be the next step, based on the feedback. Mr Finn might have more detail on time lines for that.
Mr Finn : Yes, we are getting feedback that is coming in and looking at it all carefully to see what we might do with it. In terms of future developments, one of the things that people would like to see particularly is alerts being pushed to them in terms of geographic locations. That is not something we have planned at the moment. Where we go with this is very much dependent on future funding to pay for some of it. Where it does not cost too much we will meet those upgrades out of our base budget.
Senator HUMPHRIES: I reckon someone who gets this app would probably think, if they have not read it closely, this is a way of giving them a location-based alert about what is going on in their area. It does not do that, does it?
Mr Sheehan : It makes pretty clear what it does and does not do. Obviously questions in relation to the previous item in respect of a location-based solution for the emergency warning is actually the capability that will do that for people moving into a hazard area.
Senator HUMPHRIES: Is it the case that the app uploads information based on chronological order of incidents happening, and it will show the latest six incidents or whatever it might be? I am looking at the screen now, and it shows three bits of information at any one time. If you have a major emergency, a big fire in New South Wales, say, and there are three smaller incidents which get uploaded on different databases in other parts of the country, they push out the information about the big thing that people need to know about. Is that the case?
Mr Sheehan : The application can allow people to look for they want to, and we are continuing that work to try to refine the manner in which you can gather and filter information through it. Obviously we will get feedback from people on what is working for them and what is not in that respect.
Senator HUMPHRIES: That is prospective, but at the moment that is the problem with it—it is chronologically based at the moment.
Mr Finn : It updates each 15 minutes. But you are correct in that from my understanding it is based on an update which is driven from whatever the host service is.
Mr Sheehan : Obviously you can search by states as well, as I think you are aware, so you can focus on where you are.
Senator HUMPHRIES: But you look at the app to see what is going on. The Crisis Coordination Centre opened in October, with a total establishment cost of $22.6 million and ongoing yearly costs, excluding staffing costs, of $648,000. This is physically located within an existing government building—a building that the government owns or the government leases?
Mr Finn : It is the AFP building.
Mr Darby : I am not too sure of the status. I believe the AFP building is a leased building and we lease the premises from the AFP.
Senator HUMPHRIES: What is the $648,000? Is that the extra cost of leasing the space the CCC is in?
Mr Darby : It is a range of things. My colleague will correct me if I am wrong. It is principally the leasing of that space, and then there are licence costs for information systems that we manage there and support costs for the information technology systems. We also pay a proportion to the AFP for security for the building.
Senator HUMPHRIES: Can we have a breakdown of those costs taken on notice?
Mr Darby : Yes.
Senator HUMPHRIES: The centre is used more intensively according to the status of the incidents that are being monitored. It can be upgraded from steady state to crisis state in certain circumstances. Can you describe briefly what the factors are in upgrading the CCC to crisis state?
Mr Darby : Yes. We run a 24-hour seven-day a week monitoring information-gathering arrangement within the CCC, the Crisis Coordination Centre, staffed generally by five or six people. Moving to what we term the crisis state might be as simple as bringing in one or two extra people out of our planning cell, our surge staff, to manage and assist with responding to an incident. That incident could be anything from flooding events and natural disaster events to supporting the Department of Foreign Affairs and Trade in bringing together national capability and preparing to deploy that overseas. For example, the other night when the earthquake happened off Indonesia and we were expecting a tidal wave we had extra people in there ready to respond, to make our links with the states and territories should we need to get extra capability to go and support Indonesia.
It might be just one or two extra people. If it is a big event we will bring in extra people. We can manage three concurrent events, but in that case we would expect we would have other departments in there as liaison officers supporting us. We have already done that on a few occasions—for example, having Defence, Immigration, Office of Transport Security, Geoscience Australia and the Bureau of Meteorology.
Senator HUMPHRIES: Thank you. I am happy with that. I will put any other questions about that on notice. I want to ask about whether the Commonwealth has received complaints regarding the way in which information was disseminated to communities that were flooded last summer and the summer before, particularly in New South Wales, Victoria and Queensland. A number of people have approached me about the way in which SES and other personnel have given advice/directions to people in flood prone or flood affected communities about getting out, ranging from strong advice to orders to leave. I appreciate these are all being done by state instrumentalities, but has there been any role for the Commonwealth in coordinating training on the appropriate way to give people messages about the extent of an emergency facing them and the way in which that information can be conveyed without imparting a sense of panic or fear in those who receive those messages?
Mr Darby : We do not have a direct role in influencing the SES in terms of who should be evacuated or who should not be evacuated; it is very much a state responsibility. There are programs within the National Emergency Management Committee, to look at warnings that go out to the public and how those warnings are transmitted, to try to get some consistency across the country. The 'Prepare. Act. Survive.' message, for example, is a consistent theme. Some of those things are being worked through through the Community Engagement Sub-committee of the National Emergency Management Committee, but I could not speak specifically about training.
Mr Wilkins : I think that is right. I do not think we can actually improve on that answer except to say that the NEMC, which meets tomorrow in Melbourne—and I have to get on a flight at six o'clock tomorrow morning!—is working on that amongst other issues. The communication of this type of information to people and how it can be done better and whether we can get some consistency in particular in training, as you said, are things that we are cognisant of. I do not know to what extent we can frogmarch the states and territories into a particular way of doing that, but they seem to be cooperating around the table. Any particular issues you have, Senator, in relation to the anecdotal evidence or otherwise might be useful to pass on.
Senator HUMPHRIES: I had some quite disturbing information about what happened in Hay in January or February when they were flooding. I think that SES staff were telling people to get out in a way which engendered enormous concern in that town and some people apparently reacted in some panic and fled the town. Others got angry at the way they were told to leave and decided not to leave. I appreciate that you may only hear about these issues anecdotally and maybe not directly, but it might be worth raising at the NEMC whether those sorts of concerns have been expressed by others and whether there is a way of dealing with that.
Mr Darby : There were very different reactions and probably your anecdotal evidence is right, from one town where everybody said no, they were not going, to Hay where there was much stronger direction from the SES for people to go.
Senator HUMPHRIES: We were told earlier in answer to a question elsewhere that there have been 1,400 investigations into possible fraud relating to Australian government disaster relief payments, but there has only been one investigation by the Australian Federal Police into a claim of fraudulent obtaining of money under that program. This crosses over several agencies but perhaps you could take on notice to try to explain why it would be that there would be 1,400 complaints and only AFP investigation.
Mr Darby : Yes, we will take it on notice, Senator, and I presume it relates to last season. The advice we have, and we will get you some figures, was that there was actually a very, very small percentage of fraudulent claims that came through. The Department of Human Services manages that program on the ground on our behalf through an MOU and we can seek that information from them.
Senator HUMPHRIES: Okay. I will put the rest of my questions on notice.
Senator PRATT: There has been some frustration from residents in New South Wales from regions such as Bland, Carrathool, Junee and Temora because they have not had any federal government flood assistance. It is my understanding that such assistance could only be forwarded provided the state government had made a submission for such assistance. Have any such applications from the New South Wales state government for disaster assistance for those areas been received?
Mr Darby : We are working closely with New South Wales. They have not made an application for—and I am presuming that you are referring to the exceptional circumstances category C funding under the National Disaster Relief and Recovery arrangements—
Senator PRATT: Of course, yes.
Mr Darby : New South Wales have not made any application. That application would have to go to the Prime Minister, and they have not done that yet. But we are working closely with them. From the viewpoint of New South Wales, the level of damage whilst significant, has not hit their threshold about whether they would be happy to declare those areas, or request declaration for those areas.
Senator PRATT: Notwithstanding that individual households would have been subject to quite significant damage, there seems to be some incredible disparities between people who go and spend the night with their in-laws because there is a threat of flooding that get compensated and are in an area where disaster has been declared versus those who have had quite considerable damage done to properties who never get the benefit of such a declaration.
Mr Darby : Yes, and we are looking to how we might remove some of those sticking points within the policy at the moment.
Mr Wilkins : But your fundamental point is right—you should probably go and talk to the New South Wales government about it.
Senator PRATT: Thank you.
CHAIR: Before I shut us down for the night, I have to bid farewell to another person who I understand is going to merrily skip out the door. Commodore Campbell Darby, I understand you are leaving the service of the public sector, not immediately but in the next couple of months. Let us put it this way: we will not see you back for the estimates in November, I understand.
Mr Darby : No, you will not, Senator. I leave at the end of August. Thank you for your time and your kind words.
CHAIR: I am very privileged because I know this person's background from the time that he spent in Darwin. I am not sure if this is a retirement from working life or just moving on to the next door and the next chapter. Nevertheless, if you are leaving the public sector we have lost a very capable and competent person who has been looking after emergency management, given the background that I know you have had and how fantastic that has been. All the best for the next phase of your life. And if you are going to more time with the family and travelling, or whatever you do—half your luck, I suppose. Good luck, stay well, and all the best.
I want to thank everybody very much for the last four days, particularly our fantastic secretariat at the Legal and Constitutional Affairs Committee. Margaret, Julie, Ann, Owen and Monica. Servicing this committee 14 hours a day for four days is a long stretch for one particular committee and its staff. To Broadcasting and Hansard: can you pass on our thanks to your colleagues as well. These are long days.
Mr Wilkins, thanks very much. All the best and we will see you again in November—you don't get the chance to skip out the door merrily knowing this is the last time!
Mr Wilkins : No, I don't.
CHAIR: Mr Darby will do that for you instead.
Mr Wilkins : Thank you very much, Chair. Mr Sheehan has something that he needs to put on the record, just a tidying-up exercise.
Mr Sheehan : Senator Crossin, after that lovely finish I feel guilty asking the committee to indulge me for 20 seconds. It is just a clarification on an answer to a question earlier from Senator Wright. The secretary indicated earlier that the PoCA savings enabled the government to implement other priority measures. We can elaborate on that a little for the committee by bringing to your attention some of the spending measures in the portfolio—for example, Stronger Futures in the Northern Territory programs and the additional fundings for the DPP to prosecute people smuggling.
Mr Wilkins : I thought you might be happy with that, Chair.
CHAIR: I am not going to object to the fact that you are going to provide more money for us in the Northern Territory for Closing the Gap. That is great.
Committee adjourned at 23:03