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Legal and Constitutional Affairs Legislation Committee


In Attendance

Senator Scullion, Minister for Indigenous Affairs


Mr Chris Moraitis PSM, Secretary

Mr Tony Sheehan, Deputy Secretary, Strategic Policy and Coordination Group

Mr David Fredericks, Deputy Secretary, Civil Justice and Legal Services Group

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

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

Outcome 1—A just and secure society through the maintenance and improvement of Australia's law and justice framework and its national security and emergency management system

Access to Justice Division

Ms Kelly Williams, Acting First Assistant Secretary

Dr Albin Smrdel, Assistant Secretary, Courts Tribunal and Justice

Ms Joan Jardine, Acting Assistant Secretary, Legal Assistance

Ms Sarah Teasey, Acting Assistant Secretary, Marriage and Intercountry Adoption

Ms Tamsyn Harvey, Assistant Secretary, Family Law

Civil Law Division

Ms Jane Fitzgerald, Acting First Assistant Secretary

Mr Douglas Rutherford, Acting Assistant Secretary, Commercial and Administrative Law

Ms Cathy Rainsford, Assistant Secretary, Native Title Unit

Mr Chris Allen, Acting Assistant Secretary, Classification

Ms Petra Gartmann, Assistant Secretary, Legal Services Policy Coordination

Ms Toni Pirani, Assistant Secretary, Commonwealth Representation Royal Commission

Constitutional and Corporate Counsel

Mr James Faulkner SC, First Assistant Secretary

Ms Helen Daniels, Special Advisor

Corporate Division

Mr Stephen Lutze, Chief Financial Officer

Mr Justin Keefe, Assistant Secretary, Service Centre

Mr Trevor Kennedy, Assistant Secretary, Financial Management, Framework and Property

Criminal Justice Division

Mr Iain Anderson, First Assistant Secretary

Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement

Mr Andrew Warnes, Director, People Smuggling

Mr Michael Pahlow, Assistant Secretary, AusCheck

Ms Rebekah Kilpatrick, Acting Assistant Secretary, Crime Prevention and Federal Offenders

Defence Abuse Response Taskforce

Mr Matt Hall, Executive Director

Emergency Management Australia

Mr Mark Crosweller AFSM, First Assistant Secretary

Ms Aaron Verlin, Assistant Secretary, National Disaster Recovery Programmes

Mr Chris Collett, Assistant Secretary, Crisis Coordination

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

Ms Rachel Antone, Assistant Secretary, National Security Training, Education and Development

Information Division

Ms Joann Corcoran, First Assistant Secretary

Mr Shaun McGuiggan, Assistant Secretary, Innovation Service and Delivery

International Law and Human Rights Division

Mr John Reid, First Assistant Secretary

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

Mr Paul Pfitzner, Assistant Secretary, Human Rights Policy

Ms Lucy Sargeson, Acting Assistant Secretary, International Human Rights Law

Mr Stephen Bouwhuis, Senior Counsel, International Law

International Crime Cooperation Division

Ms Catherine Hawkins, Acting First Assistant Secretary

Ms Alex Matthews, Assistant Secretary, Transnational Crime and Corruption

Mr Chris Faris, Acting Assistant Secretary, International Crime Cooperation Central Authorities

Ms Elizabeth Brayshaw, Acting Assistant Secretary, International Legal Assistance

National Security Resilience Policy Division

Dr Carolyn Patteson, Acting First Assistant Secretary

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

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

Mr Michael Jerks, Assistant Secretary, Critical Infrastructure Protection

Ms Wendy Kelly, Acting Assistant Secretary, Emergency Management Policy

National Security Law and Policy Division

Ms Jamie Lowe, First Assistant Secretary

Ms Catherine Jones, Assistant Secretary, National Security Policy and Capability

Ms Anna Harmer, Assistant Secretary, Electronic Surveillance Policy

Ms Annette Willing, Assistant Secretary, Office of the National Security Legal Adviser

Mr Cameron Gifford, Assistant Secretary, Counter-Terrorism Law

People Strategy

Ms Robyn Black, Acting Assistant Secretary

Royal Commission into Institutional Response to Child Sexual Abuse

Mr Philip Reed, Chief Executive Officer

Royal Commission into Trade Union Governance and Corruption

Ms Jane Fitzgerald, Chief Executive Officer

Mr Mark Ney, Police Taskforces

Ms Sue Innes-Brown, General Manager, Corporate Services

Strategy and Delivery Division

Ms Sarah Chidgey, First Assistant Secretary

Ms Kathleen Denley, Assistant Secretary, Strategy Governance and Deregulation

Mr Will Story, Assistant Secretary, Constitutional Recognition of Indigenous Australians

Committee met at 09:03

CHAIR ( Senator Ian Macdonald ): I will call to order the resumed estimates hearing for the Senate Legal and Constitutional Affairs Legislation Committee. I welcome Senator the Hon. Nigel Scullion, who is filling in for the Attorney-General. It is good to have you and Mr Moraitis with us. This is an adjourned hearing. We did not quite finish last time. The committee has fixed 1 May as the date for the return of answers to questions taken on notice. Any questions to be placed on notice have to be in by close of business Wednesday, 1 April, which is next Wednesday.

I think all the witnesses here know about parliamentary privilege. Any questions going to the operations or financial positions of departments or agencies which are seeking funds in the estimates are relevant questions for the purposes of estimates. I remind officers that the Senate has resolved that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations, but we deal with those things as we come to them. The Senate has resolved that an officer of a department shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions to more senior officers or the minister.

If a claim of public interest immunity is raised, witnesses are specifically reminded that a statement that information in a document is confidential or consists of advice to government is not a statement that meets the requirements of the 2009 Senate order, which will be incorporated in Hansard.

The extract read as follows—

Public interest immunity claims

That the Senate—

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

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

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

(1) If:

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

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

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

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

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

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

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

(7) A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (1) or (4).

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

(d) requires the Procedure Committee to review the operation of this order and report to the Senate by 20 August 2009.

(13 May 2009 J.1941)

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

Witnesses are required to provide a specific indication of the harm to the public interest that could result from the disclosure of such information. That is fairly obvious.

Minister, do you or Mr Moraitis want to make an opening statement, bearing in mind this is a resumption of estimates hearings?

Senator Scullion: No, there is no requirement for an opening statement.

Mr Moraitis : No.

CHAIR: We are actually having two estimates hearings today, the first one dealing with the Attorney-General's Department, which will conclude at 12.30, and then the other commencing at one o'clock. The first session is on outcome 1. Who is going to start the questioning? Senator Collins.


Senator JACINTA COLLINS: Chair, can I just deal with a couple of procedural issues that might help facilitate the day for both the committee and the department. The two sessions that we have today are to ensure that the Human Rights Commission will come on at one o'clock, but we may have further questions for the department beyond that; I hope that is clear. Secondly, I am not aware—and I have checked with my colleagues, other than you, Chair—of any questions in relation to the metadata issues. So, if there is anyone who has been working simply on that matter and has been in the Senate all week, they will not be required today, unless you have questions, Chair?

CHAIR: I do not.

Senator JACINTA COLLINS: I do not know if that helps anyone.

Mr Moraitis : It helps [inaudible].

Senator JACINTA COLLINS: That is not to say there may not be some on notice, but not that we need to deal with here. Chair, I also indicate—and it is an apology from me and perhaps the committee as a whole, I suspect—that, whilst we accommodated, obviously, the minister's attendance at the state funeral today, unfortunately the nature of this week in the Senate means that there was some confusion amongst the committee about whether today was going to proceed or not and, in the course of that, I know I at least failed to consider that they might have been other people who wished to attend the state funeral. So I record my apology to that effect, if that has impacted on anyone's desire to do that today.

CHAIR: Thank you for that, Senator Collins. The secretary just told me that the Attorney has not officially advised this committee, in writing, that he will not be here. I was under the impression that he had, and he had indicated that to me. Apparently, some of the witnesses were not aware of that. I was just going to see the Attorney's staff to see if a letter had been written, as I thought it had. Anyhow, nothing turns on it. I could express some disappointment to the Attorney, but I will do that to him direct, because I did indicate to him that as a formality he should write and advise the secretariat that he was not available. We all knew, but apparently some senators did not.

Senator WRIGHT: I did not know.

Senator Scullion: If it can assist, I was also under the impression, through conversations with the Attorney, that he was of the view he had written.

CHAIR: Thank you, Senator Scullion. If he has written, someone should let you know so I can apologise to him. If he has not, I would hope his staff would let him know that there are some formalities and courtesies to be extended rather than a phone call to me.

Senator WRIGHT: if I could just make it clear that as a member of the committee I did not know that the Attorney-General would not be appearing today. I had quite a few questions that I have been working on to ask him, so it is regrettable that I did not know that.

Senator Scullion: We will do our best to provide that information for you.

Senator WRIGHT: I understand that you will, thank you, but some of them go to his particular knowledge.

CHAIR: We can deal with those as we come to them and what we cannot answer we will take on notice.

Senator JACINTA COLLINS: Winding up on that issue, I do not think anything turns on whether a letter was received. The error, I suspect, was that we had an informal conversation earlier in the week where you did me the courtesy of advising me, in another meeting, that the Attorney had made that contact. The advice at that stage was loosely that we suspected we would not be proceeding but that we were looking at whether an alternative minister might be available. Unfortunately, there was a delay of about another day, once it became clear that the government wished for us to proceed today, and that left us very limited time, given other matters were occurring in the Senate for us to consider. I apologise to anyone who might like to have attended the state funeral that it was not possible.

Senator Scullion: Senator Wright, if there are any particular matters you want to put to Senator Brandis I am quite sure he will take those on notice, through the usual process.

Senator WRIGHT: Thank you.

Senator JACINTA COLLINS: The area I want to start on, within the cross portfolio area or perhaps others, is the legal services cuts in yesterday's announcement. Since coming to office the Abbott government has proposed savage cuts on legal assistance services, including massive cuts to community legal centres. During the estimates hearing, in this committee, on 11 December last year Senator Brandis indicated that no assessment had been made by AGD of the impact of the government's cuts on front-line legal services. Is this still the case?

Mr Manning : I am First Assistant Secretary, Access to Justice Division, contrary to what my sign says, because I was filling in for Mr Fredericks until yesterday. I will get another one. That is right.

Senator JACINTA COLLINS: What is right?

Mr Manning : That we have not done any further work on that particular aspect since December.

Senator JACINTA COLLINS: The announcement was made yesterday without any assessment of the impact of the cuts on front-line—

Mr Manning : I think it is important to distinguish—I understood you to be asking of the cuts that had been made as distinct from the ones that have been announced but have not been yet implemented.

Senator JACINTA COLLINS: Just pause for a moment so that we do not spend too much time on such distinctions. In this discussion, I do not want there to be any confusion about which cut, when, why, how and that the murkiness of it all shields the critical problem—that problem being the impact of what has been occurring to front-line legal services. So please take me to be asking about cuts, in the general terms, whether they are the MYEFO ones or whether they are the forecast ones.

Mr Manning : Certainly and, not wanting to do that at all, it is important to note that the cuts were announced to take place over the forward estimates, $43.1 million 2013 MYEFO cuts. With the exception of Environmental Defenders Offices, there have not been any cuts to the funding received by service providers. As a result of the government's announcement yesterday, there will not be any cuts to the quantum of money that is available for those service providers over the next two years.

Senator JACINTA COLLINS: Let us go back to the MYEFO cuts. In late 2013 the Abbott government slashed more than $13 million from Aboriginal and Torres Strait Islander Legal Services. Are you saying all of those were in the future?

Mr Manning : In the 2013 MYEFO they announced that there would be $13 million cut over the forward estimates from ATSILS and to date—

Senator JACINTA COLLINS: To commence from—

Mr Manning : They commenced from 2013-14 but—

Senator JACINTA COLLINS: So they have commenced.

Mr Manning : What I am trying to clarify is that they have commenced but no money has been taken from an ATSIL. When you administer a program—

Senator JACINTA COLLINS: How do you administer cuts but take no money?

CHAIR: It would be useful if you allowed the officer to actually finish his answer.

Mr Manning : It is quite normal in program administration for the vast majority of the money to be committed to service providers but a small amount of the money to remain uncommitted for use as needs arise—for example, evaluation, to run a pilot program if there is an unexpected surge somewhere. In relation to the Indigenous Legal Assistance Programme, the only cuts that have been made, so far, are $1.8 million in uncommitted funds. The government was going to have to roll out the remaining $11 million or so in cuts over the next two years, and that would have impacted on the quantum of funds available to the eight ATSILS across Australia but, as a result of the announcement yesterday, that will not be happening.

Senator JACINTA COLLINS: Let us move onto the next one—again, back at MYEFO, $19 million from Community Legal Centres. What has occurred in 2013-14 and what is forecast to occur over the forwards?

Mr Manning : So far, there have been cuts to baseline funding for Environmental Defenders Offices.

Senator JACINTA COLLINS: How much is that?

Mr Manning : I think that is $820,000 per year—no, just $820,000 in 2014-15. There are none in 2013-14. That is in relation to baseline funding. They were given some supplementary funding as well, which was cut in 2013-14, that was $1.28 million across all EDOs.

Senator JACINTA COLLINS: That is, so far, a total of $2 million.

Mr Manning : That is right. That is 2013-14. In 2014-15 they were given $2.5 million in additional funding, which was cut as well. So in 2013-14 they just had their additional supplementary funding cut, and in 2014-15 they have had both their baseline funding and their additional supplementary funding cut. That has occurred, so far.

Senator JACINTA COLLINS: We were doing the 2013-14 year for Aboriginal and Torres Strait Islander Legal Services. What about the 2014-15 year?

Mr Manning : That 1.820 figure I gave you is the combined figure across 2013-14 and 2014-15.

Senator JACINTA COLLINS: I do not think you said that at the time.

Mr Manning : For Indigenous—

Senator JACINTA COLLINS: I have just gone back to Indigenous, because we have worked out that we are talking about two years now, in terms of cuts that might already have occurred.

Mr Manning : That is right.

Senator JACINTA COLLINS: In one sense, I am not sure why I am bothering going through this exercise because I might as well go back to my original point. But let us keep going. So $1.8 million has already occurred in Aboriginal and Torres Strait Islander Legal Services, with all 11 forecasts ahead of yesterday's announcement. Moving then onto—

Mr Manning : Just to clarify, no money has been cut from an Aboriginal and Torres Strait Islander Legal Service and, as a result of the announcement yesterday, the quantum for those services will remain the same. There is a difference between the program and the services you fund under the program. The program has had a saving taken from it but no service provider has.

Senator WRIGHT: I want to be really clear on that. The $1.820 million you describe as being uncommitted, held-back funding from the programs, in case there is additional—

Mr Manning : That is right.

Senator WRIGHT: Were any of the services in a position where they understood, including the NATSILS, that there would be some aspect of that money able be used for purposes in the future?

Mr Manning : Not to my knowledge. Certainly not last year, in relation to the year before I came into this job as this was all happening. I will take that on notice and check it. Certainly, the NATSILS have still received their funding over the last two years.

Senator WRIGHT: What I am interested in is if they were of the understanding that that money had been uncommitted the specific programs but it was there, they may well have been doing some planning on the basis of that if they had. You will clarify that for us?

Mr Manning : Not to my knowledge, but I will check in relation to 2013-14.

Senator JACINTA COLLINS: We will be getting to that point.

Senator WRIGHT: I just wanted to clarify the point.

Senator JACINTA COLLINS: Back then to the community legal services. Where were we? The $1.2 million in 2013-14. They were just to the EDOs. Thank you, Senator Moore. On the $2 million in 2014-15, was that just to EDOs?

Mr Manning : Yes. The only cuts to community legal centres that have been implemented so far are to EDOs.

Senator JACINTA COLLINS: Then the $6.5 million to legal aid commissions.

Mr Manning : That $6.5 million is, again, split between what has happened so far and what was scheduled to happen over the next two financial years. It is important to clarify that no legal aid commission has received a funding cut and they were never going to. There is an additional fund called the Expensive Commonwealth Criminal Cases Fund and the amount that was available in that fund was reduced. That was always the proposal. So $3.5 million was taken from that fund in 2013-14 and $1 million was taken from that fund in 2014-15, although you may be aware that in February the government did announce the availability of an additional $5.2 million for the remainder of this financial year for that fund.

Senator JACINTA COLLINS: So far to date, $4.5 million was taken out of the Expensive Commonwealth Criminal Cases Fund, but then $5.2 million was put in as of when?

Mr Manning : It was the end of February. I would have to check the date. I think it was around 20 February.

Senator JACINTA COLLINS: No wonder people think this is chaos.

Mr Manning : A lot of money moves in and out of the programs. It does get confusing.

Senator JACINTA COLLINS: It is not just confusing. It is chaos generating.

Senator Scullion: The notion that there would be $1.8 million that would be held back is not something that even the public or those services—I know you are going to get to that matter—are normally concerned by. In terms of describing this as chaos, it is really very simple: in MYEFO, there were indications that cuts would be made but those cuts have not hit the ground in terms of the national Aboriginal legal aid services. The announcement made yesterday, in effect, reverses the cuts that were to be made. In effect, they are now not to be made and those services will continue to receive the funding that they expected to receive. I do not think that is complicated or confusing.

Senator JACINTA COLLINS: What is becoming very clear as we go through what has been taken out in 2013-14 and 2014-15 is that funds have been withdrawn to date. If they are not cuts, I do not know what cuts are. If the government subsequently decides, 'We have cut a bit too severely here and we are going to remedy that situation,' that is great. But if funding has not been provided in the 2013-14 year and the 2014-15 year, then after 20 years in this parliament I do not know what cuts are.

Senator Scullion: I thought what I heard was eminently clear. There were no effective cuts. You can have a cut within government within a program. The funds were, if you like, emergency funds that were set aside for a number of issues—a contingency fund, which is often the case within government. There certainly was not an expectation from the services they would receive that. The expectation of funds that the services believe that they would receive are now being provided.

Senator JACINTA COLLINS: We will get to that point too. At the moment, we are just dealing with the backflip on the MYEFO cuts, as I understand it. There are budget cuts that have not been backflipped on yet.

Mr Manning : Can I perhaps make a clarifying comments in relation to the Expensive Commonwealth Criminal Cases Fund, which is called the ECCCF. It is a reimbursement fund. It is a fund that exist to, if you like, smooth out the peaks and troughs that can come about as a result of running expensive criminal trials under Commonwealth law. I only make that point because in relation to the $3.5 million that meant there was $3.5 million less that year to be reimbursed—not that anyone received the cut—and it has been common in the life of that fund for not all of the money to be used. The first time in a long time when it looked like all the money would be used was this financial year, where there was slated to be a cut, and which the government put more money into as a result of it looking like that would be exhausted.

Senator JACINTA COLLINS: But what is the behavioural impact of the government in MYEFO saying: 'We are taking $3.5 million out of the Expensive Commonwealth Criminal Cases Fund. What is the message that community legal centres and the like receive when you do such a thing?

Mr Manning : In relation to the ECCCF, the message is to legal aid commissions, because it is a fund only legal aid commissions can access.


Mr Manning : The message overall for legal aid commissions—which are, of course, much bigger organisations—is one of the need to manage their funds perhaps even more tightly. Of course they would be concerned if there were inadequate funds, a lot like the government would be concerned, because the impact of there being inadequate funds there is on the general Commonwealth work. That is why, when faced for the first time in a long time with the exhaustion of that fund, the government provided additional funds that remain to this financial year.

Senator O'SULLIVAN: Very responsible.

Senator JACINTA COLLINS: I do not think we need commentary, Senator O'Sullivan.

CHAIR: From anyone.

Senator JACINTA COLLINS: Let us keep going on this exercise we started on. The $3 million from Family Violence Prevention Legal Services—what was the 2013-14, 2014-15 year withdrawal there?

Mr Manning : That program is administered by the Department of the Prime Minister and Cabinet. At the time the MYEFO announcement was made, my understanding was that there were no cuts in 2013-14, and there was a very small cut—in the vicinity of $300,000—predicted for 2014-15. From a conversation I had with PM&C some time ago I do not think that actually occurred, but you would have to ask them to know. The program now, in relation to the current year and future years, is part of the broader Indigenous Advancement Strategy. So you would have to seek that from PM&C, but my understanding is that there have not been cuts implemented in relation to service providers.

Senator Scullion: I can confirm there have been no cuts at all to domestic violence and justice legal aid services.

Senator JACINTA COLLINS: Yes, I have observed that campaign, and it has been good to see that the government has responded to it, because the message that was given with MYEFO in the budget was a different one, and was quite alarming. Okay, I will follow that up with the Department of the Prime Minister and Cabinet.

CHAIR: You have only ten seconds to do it.

Senator JACINTA COLLINS: Is my 15 minutes up?

CHAIR: Thanks, Senator Collins. We will come back to you later. The legal aid funding was all very clear to me until the last lot of questioning. Now I am completely confused. Mr Manning, can I get you to start where I think you were going to start. I think you indicated that there was an announcement that $42 million would be cut from—tell me what. When was that announcement made, and when were the cuts to apply?

Mr Manning : There was an announcement in the 2013 MYEFO of $42 million—it subsequently became $43.1 million; that was the final figure—and that was to be implemented over the forward estimates, so 2013-14, 2014-15, 2015-16 and 2016-17.

CHAIR: So $43 million cuts were announced out of a total budget of?

Mr Manning : It is $1.3 billion over four years, approximately.

CHAIR: Okay. This announcement was made in the 2013-14 MYEFO; go from there.

Mr Manning : The government then had to consider how to phase in those savings. Because it was aware at the same time that existing legal assistance funding arrangements were coming up for renewal, it decided to phase it in. So, with the exception of Environmental Defenders Offices, as I have said a couple of times now, it focused in on uncommitted funds to look at phasing in the bulk of the savings at the same time as it was reconsidering its approach to legal assistance arrangements generally. The net effect of that was that the majority of them were meant to come on board in 2015-16 and 2016-17 and, as a result of the announcement yesterday, they are not.

CHAIR: Did the $43.1 million include the publicly announced commitment of the government—I think it was an election commitment—to stop funding the EDOs?

Mr Manning : Yes.

CHAIR: What was the total funding to the EDOs?

Mr Manning : My colleague Ms Jardine can answer that.

Ms Jardine : The EDOs' base funding under the program was approximately $900,000. I can give you the exact figure.


Ms Jardine : Then the previous government injected $2.5 million per year. So, in total, it is about $3.4 million.

CHAIR: Was it to be $3.4 million each year or just the four forward years?

Mr Manning : Each year in the forward estimates.

CHAIR: So $3.4 million each year for four years.

Mr Manning : That is right, roughly.

CHAIR: That has been cut.

Mr Manning : That is right.

CHAIR: Is that cut in the $43.1 million announced?

Mr Manning : Yes.

CHAIR: If you take the EDO out, what is left?

Senator WRIGHT: Can I just clarify that because that is not the figures? I just wanted to check.

CHAIR: Yes, I will come straight to you.

Mr Manning : There is about $30 million left, roughly.

CHAIR: The $43 million cut announced included $13 million for the EDO.

Mr Manning : That is right. It included the base funding and supplementary funding for EDOs of about $11 million or $12 million over the forward estimates.

CHAIR: So that left approximately $30 million for other legal aid.

Mr Manning : Approximately, yes.

CHAIR: That was going to be cut over the next four years.

Mr Manning : That is right.

CHAIR: As a result of yesterday's announcement, that is now not going to be cut. Is that correct?

Mr Manning : That is right. As I indicated earlier, there is the EDO money, which is the quantum we have been discussing. There is about $6 million, roughly, which has already been implemented through the Expensive Commonwealth Criminal Cases Fund and the Indigenous legal assistance uncommitted funds bit I spoke about, which left about $25½ million which remained to be implemented, and that is the amount the government announced yesterday.

CHAIR: Twenty five and a half million cuts remained to be implemented. But, as a result of yesterday announcement—

Mr Manning : They will not be. That is right.

CHAIR: The $6 million is another question that we can talk about later. We are all clear about the EDO. There is no clarification needed there. So it is business as usual following yesterday's announcement.

Mr Manning : That is correct.

CHAIR: That now clarifies in my mind, at least, where it all came from. There is no doubt about the EDOs. That was, I think, an election commitment, and I thank you, minister. I am glad we have you here. You were able to clarify the issue of Indigenous funding, and that is useful. How many community legal centres will benefit from yesterday's announcement.

Mr Manning : Sixty one. The government had been proposing to implement the savings via the early termination of some additional supplementary funding agreements. As a result of yesterday's announcement, none of those agreements will be terminated early. There are about 57 of them. There are a small additional number who had not signed their agreements at the time of the MYEFO announcement. They will get the two years that they would have got had those agreements been signed as well.

CHAIR: You told us that the total legal aid budget over the four years is $1.3 billion. Apart from the money coming out of the EDO funding, that $1.3 billion will more or less remain. Is that correct?

Mr Manning : Yes.

CHAIR: What percentage of funding for community legal centres comes from the Commonwealth and what do the states and territories contribute?

Ms Jardine : Overall, 57 per cent nationally.

Mr Manning : From the Commonwealth.

CHAIR: Does that vary by state or territory.

Ms Jardine : Yes.

CHAIR: Perhaps on notice, is it possible to tell us what the figures are in each state and territory?

Ms Jardine : Yes.

Senator JACINTA COLLINS: Chair, while you are asking for that on notice: Senator Moore just mentioned to me that what would be quite helpful would be a table or a schemer that describes which legal aid funds go under which programs under which department, where the actual cuts were in the two stages so far and which of those have been remedied. If we could have that in a schemer and if you could build into it the domestic violence stuff which is with the Department of the Prime Minister and Cabinet—

Mr Moraitis : Do you want it broken down to the specific centres and legal aid commissions?

Senator JACINTA COLLINS: No, not centres. I will be coming to centres a bit later when we deal with the impact of what has occurred to date. But, just picking up from the chair's question, if we could combine that with that, I think that would be very useful for the committee.

CHAIR: Again, you are confusing me. As I understand from the minister, domestic violence has not been cut.

Mr Moraitis : Correct.

CHAIR: So there is the answer to that one.

Senator JACINTA COLLINS: No; we are still unsure about the $300,000 that Prime Minister and Cabinet is responsible for.

CHAIR: I thought Senator Scullion—

Mr Manning : What I said earlier was that, at the time the program transferred, in relation to the planned phase-in of the MYEFO cuts, there was $300,000 in a year. But, as I said earlier, because it transferred to PM&C, I am not aware of whether or not that occurred. As the minister said, his understanding is that it did not.

Senator Scullion: My current understanding is that there have been no cuts. If I need to correct the record with regard to the $300,000 and other matters, I will do that.

CHAIR: As I say, it is coincidence and good fortune that the minister is able to get back to it if he is wrong. So that is out. Coming to Senator Collins's question for you on notice, it has confused me because, as I understand it, there was some intention to introduce cuts but that has never happened and now, following yesterday's announcement, it will not happen. Is that correct?

Mr Manning : Yes, that is correct. With the exception of the EDOs, the other centres facing cuts was from the early termination of supplementary funding, which the Attorney made clear yesterday is not occurring.

CHAIR: So, Senator Collins, what exactly do you want the department to tell you on notice that has not been told?

Senator JACINTA COLLINS: What Senator Moore suggested would be helpful to the committee would be if we asked the department to provide us with a schema that breaks up where the legal aid funding goes into the different programs, what the cuts in both MYEFO—which we have just talked about—and the budget were going to impact and what has been redressed. As I understand it, that is simply MYEFO and not budget, which we will get to later.

Mr Manning : That is right.

Senator JACINTA COLLINS: If a template could describe for us all of that, then hopefully we will be less confused.

CHAIR: I am never confused until you ask the questions, Senator. Let me try, as I have four minutes left of my time. Have there been other cuts—which Senator Collins is calling budget cuts?

Mr Manning : Yes.

CHAIR: Can you tell us about those?

Mr Manning : In the current budget—

CHAIR: That is the 2014-15—

Mr Manning : Yes. In the 2014-15 budget, there was an early termination of the second year of two years of supplementary funding to legal aid commissions. They had been given $30 million over two years and a second year of that was terminated in the current budget.

CHAIR: Where does that fit in to the $43.1 million?

Mr Manning : It is completely separate. The $43.1 million of the 2013 MYEFO and, in addition, in the 2014-15 budget there was the early termination of $15 million to legal aid commissions.

CHAIR: So the $1.3 billion over the forward estimates is now reduced by the EDO money plus $15 million?

Mr Manning : That is right.

CHAIR: Is that it?

Mr Manning : Yes, that is it.

CHAIR: As I understand then, Senator Moore and Senator Collins's question was whether you can identify, effectively, I guess, where the $15 million cuts are.

Mr Manning : Quite simply, that was the second year, as I say, of supplementary funding that was to be spread across legal aid commissions.

CHAIR: Again, if we know what supplementary funding was going to go to each legal aid commission, we should be able to get that easy enough.

Mr Manning : Yes.

CHAIR: So that is now not going to them, and what happens in this year's budget we will find out in May.

Mr Manning : That is right. In talking about this area generally, I think we need to distinguish between baseline funding and funding that is short term and supplementary that may be able to be given out by governments from time to time. In relation to the baseline funding, there is no proposal to reduce that at all for legal aid commissions. In relation to supplementary funding, in the past—that is, in the last budget—there was that reduction of one year of $15 million of supplementary funding by terminating it early. It was meant to terminate at 30 June this year, in any event.

Senator JACINTA COLLINS: Sorry, Chair, I do not understand what Mr Manning is saying there. It was meant to terminate—

Mr Manning : It was supplementary funding spread over two years.

Senator JACINTA COLLINS: Which two years?

Mr Manning : This financial year and last financial year. So that money was not going to continue beyond this financial year, in any event. I might make another point in relation to it.

Senator Scullion: It was a terminating program.

Mr Manning : That is right. It was a two-year measure.

Senator JACINTA COLLINS: What was the measure?

Mr Manning : To provide $50 million of supplementary funding, spread across legal aid commissions, for each of two years.

Senator Scullion: It was one of the previous government's measures, which was put in as a terminating measure.

Senator JACINTA COLLINS: So it was a measure that the previous government had put in across the forwards—

Mr Manning : It had given them two years extra funding.

Senator JACINTA COLLINS: And this government decided to allow two further years?

Mr Manning : No. The previous government gave two years of supplementary funding. This government terminated one year of those two years of supplementary funding.

Senator JACINTA COLLINS: So the previous government gave two years of supplementary funding, which amounted to $30 million, did it?

Mr Manning : Yes, $15 million per year, totalling $30 million.

Senator JACINTA COLLINS: And the saving in the budget was to withdraw one of those two years?

Mr Manning : That is right.

Senator JACINTA COLLINS: And that is still going to occur?

Mr Manning : That has occurred, which is why, coming back to your earlier question about what is happening in the future, I was talking about the future. I might make a point about that too. As at the end of December, in relation to the $15 million for the first year, about a third of that remained unspent by legal aid commissions. In fact, only two legal aid commissions had spent their allocation. So, in relation to the uses to which legal aid commissions had put that, only two legal aid commissions had managed to spend their entire allocation of additional supplementary funding for one year, in any event.

Senator JACINTA COLLINS: So, in the 2013-14 year, they spent $10 million?

Mr Manning : Our latest figures are as at December 2014. So, as at December 2014, they had spent just over $10 million of money that was allocated in the 2013-14 budget to be spent in the 2013-14 budget.

Senator JACINTA COLLINS: That is only half the year.

Mr Manning : No, it is 1½ years, Senator.

Senator JACINTA COLLINS: Okay. So then the year was 2012-13, 2013-14. Is that correct?

Mr Manning : It was 2013-14, 2014-15. They started in June 2013, and, as at December 2014, they had spent just over $10 million.

Senator O'SULLIVAN: Could I ask a clarifying question, Chair?

CHAIR: Senator Collins, have you finished your five-minute clarification?

Senator JACINTA COLLINS: I was just clarifying what you asked, so yes.

CHAIR: Senator O'Sullivan, a clarification?

Senator O'SULLIVAN: If the spending behaviour, the access to those funds, continued on trend, it would seem that, over the two years that the $30 million was allocated, the burden on the fund would be less than what we could describe as a one-year allocation?

Mr Manning : It would be about the same. If you presume that those that had not spent their entire allocation would not have been able to spend this year's, then, on the current basis, when I looked at it, there would be about $14 million unspent, which is only $1 million less.

Senator O'SULLIVAN: Correct. So nobody has missed out anywhere. The supplementary funds have been taken up on a needs basis by whoever was eligible to take it up and they have showed over the two-year period that the demand on it was equal to what would have been a one-year allocation of $15 million?

Mr Manning : That is right, although presumably they would say it is just taking them longer to spend it, rather than that they would never have spent it.

Senator O'SULLIVAN: So the world is a happy place: they got whatever they needed; the supplementary funding occurred.

Mr Manning : I do not think the Attorney-General or his department would say there is not a need for additional resources in this space, but in relation to that—

Senator O'SULLIVAN: No, but within the confines of this allocation.

Mr Manning : That is right—so far.

Senator O'SULLIVAN: The thrust of the questioning here is that somehow this government is reducing front-line services. Not only is that not true, but the supplementary funding that was made available, to the extent that there has been demand on it, has been met.

Mr Manning : The legal aid commissions have not yet spent all of the first year of their supplementary funding.

Senator O'SULLIVAN: Same thing; different phraseology.

CHAIR: Of those two years of supplementary funding, of a total of $30 million, only $10 million has so far been spent?

Mr Manning : A bit over $10 million.

CHAIR: And $15 million—

Mr Manning : $15 million is now back in consolidated revenue.

Senator WRIGHT: Was there any funding cut in the budget last year that would have flown to the community legal centres in Australia?

Mr Manning : Last year's budget? No. The only cuts for community legal centres were in the 2013 MYEFO.

Senator WRIGHT: Okay. That is what I wanted to check. Was any of $15 million supplementary funding that has been cut possibly going to flow from legal aid commissions through to community legal centres? Was that a possibility?

Mr Manning : I do not have the details. It is a possibility. Sometimes legal aid commissions contract community legal centres to do certain things for them, so that is a possibility.

Senator JACINTA COLLINS: Could you provide us on notice with the details of the guidelines for the use of those funds so that we have some sense both of what the intention was for the supplementary funding and what behavioural impact might have occurred when they were told that they now only had half of it.

Mr Manning : Certainly.

Senator WRIGHT: There have been other funding cuts, which I think were announced in the budget last year, that are due to take effect in 2017-18. Are they additional to the supplementary funding cut?

Mr Manning : I am not aware of any.

Senator WRIGHT: For the legal assistance sector, generally, sorry. I am just tried to clarify my information.

Mr Manning : I do not think there are any other budget cuts that are due to take effect.

Senator WRIGHT: Apart from the supplementary funding?

Mr Manning : The only budget cuts are the 2013 MYEFO and that one-off termination of one year in the 2015 budget.

Senator WRIGHT: All right, thank you. That is what I wanted to check. What we heard yesterday with the announcement from the Attorney-General, was that the $25.5 million in restored funding—the reversal of the MYEFO cuts—will need to come out of the Attorney-General's budget somewhere else. Is that right? That is what he said, I believe.

Mr Manning : That is my understanding.

Senator WRIGHT: What services will be cut from the Attorney-General's budget to pay for that restored funding?

Mr Manning : That is a matter that will be considered in the broader budget.

Senator WRIGHT: This may be a question for the minister representing the Attorney-General today. Will the government guarantee that no further cuts to the legal assistance sector will be contained in the budget in May?

Senator Scullion: I am not in a position to make guarantees. It has been a broad convention across governments to answer these sorts of questions in the same way. I am not in a position now to guarantee anything. It was delightful yesterday to make an announcement about some clarifications about what really is happening over the forward estimates. I have to say I am very proud to be part of a government that is sophisticated and nimble enough to listen to the legal aid services, to hear about the adjustments that we thought perhaps could be made through law reform and through advocacy—within that envelope. That has not been the case. We have listened carefully to them and we have made those adjustments.

CHAIR: Budget matters will be announced on budget night as to what happens next year.

Senator WRIGHT: I am sure the minister is capable of answering the question for himself.

CHAIR: He did answer.

Senator WRIGHT: He did, so he probably did not need any additional comment then.

CHAIR: Thank you for your advice.

Senator WRIGHT: It is taking my time.

CHAIR: I am most appreciative of you, Senator Wright.

Senator WRIGHT: I have less than 15 minutes, and it is taking my time when you deign to answer a question that I have asked the minister.

CHAIR: You have just used one minute of your time.

Senator WRIGHT: I am making the point.

CHAIR: You keep making points as much as you like.

Senator WRIGHT: Minister, will the government guarantee that the cuts from the Attorney-General's budget to make up for the restored funding will not include cuts to the Australian Human Rights Commission?

Senator Scullion: I am not in a position to answer that question. Again, that is a matter for the budget. The convention, over many governments, is always that matters that are a matter for the budget will be announced at the budget.

Senator WRIGHT: All right. This might be a question for the department: I understand that the government was factoring in surpluses which community legal centres have accrued from the Commonwealth Community Legal Services Programme funding, and was going to recruit those that had not been spent. Is that still going to go ahead?

Ms Jardine : No decisions have been made, Senator. It is a matter for government, but no decisions have been made.

Senator WRIGHT: What is the status of that then? When you say no decisions have been made, is that as to whether or not the funding that has not been expended will be recouped? Or is it that the decision as to whether the funding will continue has not yet been made? That is what I am trying to clarify.

Mr Manning : Not yet made, Senator. As I indicated earlier, all of the existing arrangements are expiring at 30 June, so government is in the process of negotiating new arrangements with states and territories. All other aspects of the administration of the system will be considered as part of that—as they would have been in any event.

Senator WRIGHT: Just coming to what you have identified there, which is the complicating factor of the expiry of the national partnership agreement between the Commonwealth and the states and territories about community legal assistance funding—sorry; not community, legal assistance—

Mr Manning : Legal aid, yes.

Senator WRIGHT: Legal aid. But it is also the case that the community legal centres are part of that, aren't they?

Mr Manning : They are not. The Commonwealth proposes to make them part of that, and we have gone to states and territories on that basis.

Senator WRIGHT: Right. So there is a great deal of uncertainty at this stage around what the new agreement will look like. My understanding is that there is talk of evidence-based legal needs assessment and jurisdictional service planning at the heart of those reforms. Is that right?

Mr Manning : Yes, Senator. As a result of both the review into legal assistance arrangements, which we have done, and other evidence, such as from the Productivity Commission, they have shown up that whilst the sector does a good job overall, there is room for better targeting of services and, I suppose, matching services—as populations change and move—to where those services are best needed. The Commonwealth has been proposing a system whereby, in addition to giving money to legal aid commissions under an NPA agreement, we also give the community legal services money under an NPA agreement and seek all legal assistance providers in the jurisdiction to work together to decide where best to direct finite resources.

Senator WRIGHT: Mr Manning, are you aware that because of the uncertainty some community legal centres are contemplating laying off staff or closing their doors—because they do not know what the upshot of that new partnership agreement will be?

Mr Manning : Certainly, I have been aware of that in relation to the cessation of the supplementary funding. However, in relation to the program more broadly it is obviously something which everyone is aware of; and everyone wants to ensure that there is appropriate time to plan. Certainly, in our negotiations with states and territories we have been made aware of issues about the timelines, and have indicated opening to considering their proposals for how to transition to any agreed revised arrangements.

Senator WRIGHT: Okay; that was the point I was getting to. Essentially, the concern that many people have is that if these new arrangements are not announced before the budget—that is, before 12 May—it may be that there will only be the period from 12 May to 30 June to institute this evidence-based legal needs assessment jurisdictional service planning before people will actually know the consequences of what is going to be happening. And that just is not enough time to be doing things in an orderly, sensible and planned way.

Mr Manning : There are a number of things under consideration in relation to the tight timelines. One is that the government will consider whether or not it can at least talk about the quantum of funding earlier, so that that provides a degree of reassurance earlier than the budget—and announcements such as yesterday's do provide an added degree of certainty, because that supplementary funding is a big percentage of the funding of a lot of community legal centres who get funded by the Commonwealth. But also, we have been in discussions with states and territories about whether or not you have a first-year transition year. So you agree to put in place arrangements, but you transition to them over the course of the year to get around that. And that would be different for each state and territory, because the arrangements and situations are different in each state and territory.

Senator WRIGHT: Deferring those arrangements for at least a year would reduce the chaos we have been seeing in other programs, where announcements are made and people have to predict what is going to happen. That would seem to be a sensible approach for national consistency.

Mr Manning : Certainly the Commonwealth is open to considering that. There is another reason for that: the Commonwealth would also like to see consistent data. If you are calling something an 'advice' or a 'court representation', it should be the same in each of the legal assistance programs to provide better comparison. We would like to make a few minor changes to achieve that and then use the first year as a baseline year to get baseline data so better comparisons can be made in subsequent years.

Senator WRIGHT: It is now nearly the end of March and the budget is on 12 May. You have acknowledged that waiting until budget night to find out the result will be difficult and challenging for the stakeholders. What is the likelihood that there will be an announcement before then?

Mr Manning : It is not my decision, but it is certainly something under consideration by the government. I should also say that there has been a lot of negotiation with states and territories and the sector in relation to all aspects of the reforms. The issue about when the quantum can be finalised and implemented has been narrowed substantially over the last few months.

Senator WRIGHT: A really concerning issue that has been brought to my attention relates to South Australian regional Community Legal Centres. I understand that, because of different arrangements between the states and the Commonwealth, this will affect some states more than others. There are three legal centres in country South Australia that currently receive funding from both the state and the Commonwealth governments; they have been advised that, because of the new funding model proposed by this government, they will only be funded from Commonwealth money to deliver legal services in priority areas identified by the Commonwealth, but not state matters. That will mean there will be a significant number of legal matters that they will not be funded to provide.

Mr Manning : I think that needs some clarification. The Commonwealth is proposing to rollout the same approach to Community Legal Centres as we have with Legal Aid Commissions, but it is not quite as black and white as a Commonwealth-state split. Imagine that legal assistance providers do a range of different work from community legal education through to one-off advices and through to representing people in court or a tribunal. For that legal education work and some other 'early intervention work', as we call it, there is no split. It is only in relation to the court representation work—the more intensive assistance. The proposal is only for that work, which for some CLCs is not the majority of their work. The balance of work varies across Community Legal Centres; it may be one-off advice or helping people with paper work or community legal education or it may be that more intensive work.

Senator WRIGHT: I am a bit confused by that; I need to be really clear about what you are saying. Are you saying the requirement that the work be in relation to Commonwealth matters is for the first part of community legal education or the second part?

Mr Manning : No, the second part—the more intensive. The proposal is to replicate what we already have in place with the Legal Aid Commissions. That is, in relation to those more intensive tasks—more akin to representation in court or ongoing work, for example—resources provided by the Commonwealth should be directed to Commonwealth work, such as family law. For Legal Aid Commissions, that is the vast majority of their work, and we would imagine it would be for a lot of Community Legal Centres as well.

Senator WRIGHT: Would areas like advanced-care directives, state child protection issues, guardianship orders be covered? They are not Commonwealth matters.

Mr Manning : Again it is not so black and white. In relation to Legal Aid Commissions, which is the system we would like to see, we say for intensive legal work you can only use Commonwealth money for Commonwealth law, but we have some exceptions for family law. For example, where there is a child welfare matter or a matter in a state court that is relevant to family law proceedings, at the moment legal aid commissions can use Commonwealth money for that and that would be the same for community legal centres.

Senator WRIGHT: Do you mean generic family law? Do you mean 'related to proceedings taken in the Family Court'? What about if it is a child protection issue that is not related to a family dispute? That would not be covered.

Mr Manning : If it is a child protection issue not related to a family dispute—and if it is intensive work, like representation in that matter—at the moment legal aid commissions would be required to use the money they get from state governments.

Senator WRIGHT: Yes, but we are not talking—

Mr Manning : And the proposal would be the same for community legal centres.

Senator WRIGHT: Okay. My point is that there is a significant number of issues that those community legal centres—and these are in regional areas where there is no ability to go; they are a long way away from Adelaide, from the city—would no longer be funded for, to be able to act on behalf of their clients, under this proposed arrangement.

Mr Manning : That is right. There would be some issues in relation to intensive legal services. I think it is right—because in many cases community legal centres might give people one-off advice; but, in relation to intensive ongoing representation, the Commonwealth is proposing that Commonwealth money be used for Commonwealth purposes. But, as I have said, it is not quite as black and white as saying, 'therefore, it could not be used in any state welfare matter', for example, because the Commonwealth does allow it to be mixed where it is related to a Family Court proceeding.

Senator WRIGHT: But not if it is a family—

Mr Manning : So I suppose the point I am making is: I am agreeing with your point but saying it is probably a much narrower range of cases than is being put forward. But that does not mean state governments cannot fund for the outcome of the application of state laws.

Senator WRIGHT: I am very interested in the fact that you have raised the issue of preliminary work, like community legal education. I am interested in how that overlaps with the gag on advocacy, on not being able to advocate. I do not think many services are actually clear on the line between so-called front-line services and so-called advocacy.

Senator O'SULLIVAN: That might have to be your last question.

Mr Manning : If you think of 'community legal education' as providing basic information so people can understand their legal rights; that is different from 'advocacy', which is the conduct of an ongoing campaign to achieve an aim. That is the difference. There is no restriction at all on the ability of legal aid commissions or community legal centres to engage in educating people about their legal rights. In fact, the Commonwealth's position is 'the more of that, the better', because the better educated people are, the more able they are to defend their rights and the better they are able to help sort out their own problems.

Senator WRIGHT: Can I ask one more clarifying question? I just want to clarify something. People have been grappling and struggling with this idea of: 'What is advocacy and what is not?' and 'When do you cross the line into advocacy?' You have talked about a 'sustained campaign', but what about if there is a meeting of concerned people in a regional area about a particular issue and the legal centre turns up there and makes an argument for law reform because one of the reasons that issue is live is because there is a problem with the law. Is that advocacy? Is that community legal education?

Senator O'SULLIVAN: I would have thought so.

Mr Manning : I am actually interested in asking the department.

CHAIR: Mr Manning, you are aware you do not have to give legal advice or opinions.

Mr Manning : Put it this way: there have been guidelines provided to each of the service providers in relation to advocacy; that said, I think we in the Attorney-General's Department are just applying the ordinary dictionary definition and letting people decide. But, if people are going to a meeting and telling people what their legal rights are, then I do not think that is advocacy. But, if they are going for the point of trying to achieve a political aim, for example, and—

Senator WRIGHT: Law reform, not necessarily a political aim.

CHAIR: Thanks, Senator Wright.

Mr Manning : Sorry, I was just using an example. I was not saying it. Can I add one thing to that? We have made it very clear to providers, for example, that coming to a committee such as this and putting forward a view based on the experience and expertise they have is not anything that has been changed under the guidelines.

Senator WRIGHT: That is very interesting. Thank you for that.

CHAIR: Thank you, Mr Manning. Senator Collins?

Senator JACINTA COLLINS: Mr Manning, could you provide us on notice with a copy of those guidelines. I would be most interested.

Mr Manning : There are different changes for each of the programs, and we can provide those, certainly.

Senator JACINTA COLLINS: Thank you. Going back to my first question—we did not make much progress, did we, in this amount of time? I think I asked what impact assessment had been conducted—based on the question I had asked back in December last year when I was told that none had been done. And I was a bit incredulous when you told me that 'still none had been', given the announcement yesterday. So could you tell me what assessment had been undertaken that informed yesterday's announcement for the adjustment that Senator Scullion referred to?

Mr Manning : As the Attorney said in his press conference yesterday, a number of ministers had received representation from a wide variety of groups. They considered them and came to the conclusion that they would change their approach to certain aspects of the money that was to be cut in MYEFO.

Senator JACINTA COLLINS: Simply representations. The AGD did not do some critique or evaluation of those representations. You indicated a moment ago that you thought—I think to Senator Wright—some of the descriptions were, I do not want to put words in your mouth but I think the gist of what you were saying was, essentially, exaggerating the impact. I am wanting a bit more information than just 'there were representations' to help us understand why such a significant adjustment was made.

Mr Manning : I might go back to something said earlier. There have been studies done recently by the Productivity Commission. We arranged for review of the current National Partnership Agreement. These studies conclude there is large unmet need in relation to legal services generally.

Senator JACINTA COLLINS: I think I have asked you previously about the Productivity Commission.

Mr Manning : That is right; I am just making the point. I do not think there is a need for further assessment to say, 'Is there any unmet need?' but rather the ministers, as they said yesterday, had been receiving representations from people in relation to the impact on the ground and had considered those representations. They changed the decision in relation to certain aspects that remained to be implemented.

Senator JACINTA COLLINS: You are telling me that AGD did no assessment of those representations.

Mr Manning : I am saying we did not need to go and do an additional body of work, because the work we had done over the last couple of years had shown us that there was a large amount of unmet need.

Senator JACINTA COLLINS: What is this work you did over the last couple of years?

Mr Manning : The work we paid for, in terms of the review of the National Partnership Agreement and the work done by the Product Commission and our engagement with the Productivity Commission.

Senator JACINTA COLLINS: There is the Productivity Commission that you have been in denial over for about two years.

Mr Manning : I have, are you saying?

Senator JACINTA COLLINS: No, not you personally, sorry. I should have said the government; I apologise for that. The national partnership review, when did that conclude?

Mr Manning : It was in 2014, but I will have to confirm the exact date.

Senator WRIGHT: Is that the Allen report?

Mr Manning : Yes.

Senator JACINTA COLLINS: Then a number of representations.

Mr Manning : Yes. In addition, we in the department as the program administrators regularly meet with people who are funded, particularly their peak agencies. We hear from them and their judgement about what goes on, on the ground. Of course, it influences our advising of the government. As I said earlier, I do not think I can give any explanation beyond what the ministers gave yesterday, in terms of a number of ministers—including Minister Scullion, the Attorney, Minister Cash and the Prime Minister—acknowledging the representations they had been receiving from a wide range of interest groups.

Senator JACINTA COLLINS: That the AGD conducted no evaluation of.

Senator Scullion: If I could speak from my perspective, I certainly spend time as a minister not only getting representations from people but also visiting organisations, particularly Aboriginal legal aid services, so I am getting direct representations all the time. No doubt, the Attorney was getting representations from a whole range of people. It is reasonable to say it was an assumption, in terms of there having been some room to move in advocacy and law reform. We made those statements at the time around the announcement of those cuts. It is quite clear that the assumptions we made at the time needed some adjustment. That adjustment has, in fact, been a restatement and a returning of the funds. It is quite a simple process. We made another assessment of an assumption that we had made. That reassessment showed that there was going to be a cut from front-line services, which would have been a breach of a fundamental promise that we had made, so we reversed those cuts that were to be made.

Senator JACINTA COLLINS: But, Senator Scullion, you talked about a reassessment. My first question today goes back to a question about what assessment might have occurred, back in December last year. In December I was told: none. Today I have been told: still none—

Mr Manning : By the department.

Senator JACINTA COLLINS: By the department. You are telling me an assessment was done.

Senator Scullion: No, I said a reassessment was made. A reassessment is a decision. A decision has been made in light of information that we have received by being a part of and being connected with these services. Our assumption that it would not have an impact on front-line services was not correct so, consistent with our approach to front-line services, we have ensured that the funding is then continued.

Senator JACINTA COLLINS: My question is one that relates to good government. You said a reassessment has been done.

Senator Scullion: That is right.

Senator JACINTA COLLINS: The department tells me they did not provide that assessment, so I am trying to work out where such an assessment was done and what information is available via that assessment. The reason I ask is that like you, the opposition, the Greens, the crossbenchers—everyone—has had people coming to them saying this is a serious problem. At the moment, I have AGD telling me, it seems, they were not asked to evaluate the nature of that problem.

Senator Scullion: I am assuming that these offices are correct in that particular piece of information—that, no, they have not made an assessment. You are trying to say an assessment has to be a particular review and a particular funding has to be applied to that—

Senator JACINTA COLLINS: No, I am not saying that at all.

Senator Scullion: What I am saying is that from my perspective, with regard to the Aboriginal legal aid services, my submission was that we needed to reassess this. I know from discussions with the Attorney that he felt the same, and a decision was made. The context of that assessment is a reassessment that the leadership, that ministers, must apply over their portfolios that occurs from time to time.

Senator JACINTA COLLINS: Perhaps you can tell me who conducted the reassessment. I do understand a decision has been made. What I am trying to understand is whether the basis of that decision is a good one. At the moment I am getting no information about what process occurred to evaluate the representations that all of us have been receiving.

Senator Scullion: I was involved in discussions with the Attorney. I am not aware of anyone else who was necessarily involved in that. We came to the conclusion that, in the reassessment of the circumstances we had made, we needed to make some adjustments and that adjustment was to return the funding.

Senator JACINTA COLLINS: Apart from via a series of representations, on what advice was that decision made?

Senator Scullion: The advice was made on the basis of all of the information we were receiving from not only the service providers but also ancillary services around that—the normal information, if you are connected with your community, that you receive on an almost daily basis.

Senator JACINTA COLLINS: I am not going to ask the nature of advice to government but I am going to press the question of what advice government sought in making this assessment.

Senator Scullion: I can make it very clear. I do not want to reflect on the nature of advice to government but I certainly have not—we have received circumstances, we have received from services, we have received advice from people, but it has not been advice that we have particularly sought. Most of it has been unsolicited; during conversations with organisations, clearly it has been solicited. The feedback we have received gives us a clear picture of a changed circumstance and we have moved as one should in those circumstances.

Mr Manning : I would like to clarify something I said earlier. The NPA review, the national partnership agreement review, the Allen review, was released in July 2014.

Senator JACINTA COLLINS: Thank you. Let us move to some of the specific examples—the Yarra Ranges region. The Abbott government decided to cancel $200,000 in funding that had been allocated, according to Michael Smith, CEO Eastern Community Legal Centre, that set up the Yarra Ranges legal centre to help people in that region. He said that 'there are women and children who are not injured or dead today because of services like this'. In response to community outrage to the government's policy, the centre was told it would receive funding so that it did not have to close. I understand that this new funding for the Yarra Ranges legal centre was not provided by AGD, which is why it would be useful to have the template we talked about earlier. Is that correct?

Mr Manning : Could you give us a reference to where you are quoting from? Is it a letter directly from the legal services or is it a media release?

Senator JACINTA COLLINS: I think it is a media one. I will get that for you. It is from the Age of 17 January this year.

Mr Manning : Could I clarify that, as a result of yesterday's announcement, I think things have moved on since the publication of that article.

Senator JACINTA COLLINS: Yes, but I am not solely interested in what is going to happen in the future.

Mr Manning : But you are asking where the money is going to come from.

Senator JACINTA COLLINS: No, I am asking in relation to this case and where the money that was guaranteed was coming from—not where will it come from in the future.

Mr Manning : That was still being resolved and it will now be resolved as part of a much bigger resolution as a result of the announcement yesterday. That will be announced in the budget.

Senator JACINTA COLLINS: So it was not even resolved as to where it would come from—AGD or somewhere else?

Mr Manning : We knew there were a number of options but where it was finally going to come from had not been resolved.

Senator JACINTA COLLINS: This committee would really love to understand what all those options are. If we could get that template of where the potential sources for support for legal aid could come from, that would be really helpful.

Mr Manning : I do not think I can provide that, Senator, because that would be providing consideration of various options as part of a budget process.

Senator JACINTA COLLINS: Yes, potentially, if there is going to be a new pool of money. But let's just concentrate for the moment on the existing pools of money that would have been contemplated in the announcement that was done for the Yarra Ranges region at that time—in January or whenever it was that government decided. So at the moment you cannot tell me where that funding is going to come from?

Mr Manning : It will be part of the wider consideration in relation to all of the funds—which, as I said, is something that will be set out in the next budget.

Senator JACINTA COLLINS: Is that usual?

Mr Manning : That money for expenditure in future years is in the budget? Yes.

Senator O'SULLIVAN: I would have thought that that was self-evident.


Senator JACINTA COLLINS: Do you really think that was the question?

Senator O'SULLIVAN: I did.

Senator JACINTA COLLINS: Is it usual for a decision to reinstate $200,000 in funding to a service not to be known from which allocation it will come?

Mr Manning : No. If money is being reallocated, obviously there will be a final decision which will set out where it has come from. You might give a commitment to spend it and then you have to find the money.

Senator O'SULLIVAN: You would be used to that practice, Senator.

Senator JACINTA COLLINS: Chair, I thought we had decided that we were not going to go down this path today—the commentary.

CHAIR: Senator Collins, you have not been completely innocent of commentary yourself. But, as I said before, we should not have commentary from anyone.

Senator JACINTA COLLINS: Well, I am just asking you to remind Senator O'Sullivan of that.

CHAIR: I am sure I do not need to.

Senator JACINTA COLLINS: I will go back to the question. How usual is it for the government to decide that it will cancel the cut that was to occur to the Yarra Ranges service and not have in mind at that point in time how that was to occur?

Mr Manning : In the 12 or 15 months that I have been in charge of this program, I think it is quite usual for government to move money around as need dictates or as decisions are made and that there is often, as part of doing that, a lag between the decision and the finding of the money and, if you like, doing the paperwork and handing over the money.

Senator JACINTA COLLINS: So based on your experience in this program?

Mr Manning : I am not saying that it does not happen all the time. It is not unusual for money to be moved within programs and transferred according to needs and decisions.

Senator JACINTA COLLINS: Tell me how this particular case came about; why this case was resolved in perhaps January as opposed to the other representations that government has been receiving and has subsequently received and finally now responded to.

Mr Manning : I do not know. I was not involved, so I cannot help you with that. I can take it on notice and made enquiries.

Senator JACINTA COLLINS: Okay. Then, if necessary, if I need to talk to Prime Minister and Cabinet, you will let me know that too?

Senator Scullion: Senator, I am happy to take that question on notice. If there are associated questions with Aboriginal Legal Aid today—I know the announcement was made yesterday, so whilst it is not an estimates sitting of PM&C, with regard to those particular questions I am more than happy to ensure that the Department of Prime Minister and Cabinet answers those on notice, to be of assistance.

Senator JACINTA COLLINS: Thank you.

CHAIR: That is very generous, Minister. Again I say how fortuitous it is that we have you with us.

Senator O'SULLIVAN: Hopefully I can tidy up the little bit of space that I am interested in in just a couple of minutes. It goes with the subject line. Senator Collins just concentrated with respect to these dynamic funding arrangements. Is it too simplistic to indicate that, if you want to create a funding capacity, there is only a finite number of sources it can come from: you can borrow the money or you can reduce frontline services or you can find dynamic efficiencies within the budget itself. Would that be too simplistic for a public administrator like yourself?

Mr Manning : I would not be borrowing money. I would just be spending money that has been appropriated under the budget. But you are right in terms of it being true.

Senator O'SULLIVAN: Correct. Obviously we have had a practice of borrowing money to fund everything without having consideration to the impact. In a dynamic budget arrangement when we are talking about budgets of $1.3 billion, to make adjustments given the circumstances of the day of $20 million—would you agree that that is not a big deal from an economic management perspective?

Mr Manning : Certainly, it is not a large percentage of the funds. But when you are dealing with lots of small agreements it can be a big deal to—

Senator O'SULLIVAN: What would be the value of your contingency arrangements across a $1.3 billion budget? What component of that, in its various iterations across sub-portfolio arrangements, would be contingency?

Mr Manning : It certainly differs. Ms Jardine could say what it is for the Community Legal Services program because she oversees it. It differs between programs, but it would certainly be a few million dollars for a large multi-million dollar program.

Ms Jardine : Yes.

Senator O'SULLIVAN: The supplementary funding you have talked about, and the point I made about—

Mr Manning : Certainly, Senator. It is not unusual to have that amount of money there for certain purposes.

Senator O'SULLIVAN: Coming back to the supplementary budget funding, where we are watching the trend as the second financial quarter in this particular financial year where the demand on the fund has been about $10 million. So on trend, within the two years—and it is a point I want to take up in Senator Wright's questioning—we talk about a cut. It would appear, on trend, that this other $15 million was not in demand.

Mr Manning : It appears they had not been able to spend it as quickly as they thought they would be able to. That is right. It is a different thing from saying there is no demand.

Senator O'SULLIVAN: What would typically happen—let us say that funding were left in situ, it would be returned to consolidated revenue. Is that correct?

Mr Manning : It could be. But already, obviously, because it has gone over financial years those particular legal aid commissions have been able to carry that money over.

Senator O'SULLIVAN: It was a two-year program. But if we got to the end of the second year—funding is allocated for specific purpose within guidelines, and if it is not drawn, it does not just remain there. They do not get to put a pergola on the back of the office. It would go back into consolidated revenue.

Mr Manning : It can either be returned or, as you say, a process would have to be gone through for permission to maintain an underspend.

Senator O'SULLIVAN: Sure. It is not money drawn, so it would not necessarily be returned. But it just does not appear in the budget in the following year.

Mr Manning : Yes.

Senator O'SULLIVAN: I want to clear up this clear object I am having from colleagues about cuts. This is not a cut—this was funding at this stage on projection, not drawn. I know that it has been removed in terms of being available but, on projection, it was not being drawn.

Mr Manning : Certainly, in relation to the announcement the Attorney made yesterday. You are quite right in relation to those services. They have not actually received the cut yet, and they have been given a commitment that they will not.

Unidentified speaker interjecting—

Senator O'SULLIVAN: Chair, I am trying to give these senators a bit of an economic lesson here. They should pay the courtesy of listening to the witnesses.

Senator MOORE: Chair, I am happy with the process, but that was a very inappropriate comment from Senator O'Sullivan.

Senator O'SULLIVAN: I am here trying to take my time and all I got is chatter. I can hardly hear my own question to the witness. You should take interest in their answers, even if they are inconvenient for you.

CHAIR: Order! Senator O'Sullivan, I should apologise. It was me trying to be helpful telling senators when they would get the call, but that generated some discussion which we should not have had. So I apologise to you and the committee apologises to you. Please continue.

Senator O'SULLIVAN: Mr Manning, I want to clear up this suggestion that is left hanging that, somehow, in finding $20 million out of a $1.3 billion budget, there will be some catastrophic collapse of frontline services to baseline services. That is not necessarily so. If you were to spread it across the entire budget—I have not done the maths in my head—for every $1,000 available to some program you would lose, I don't know, $20, $200, $2,000?

Mr Manning : Yes. Certainly it depends on the programs, and the amount of money that is uncommitted differs from program to program. I am hearing the people who we fund. They would be saying that, for an individual like them, it would have a profound impact. But you are right on the figures: $20 million is not a large percentage of $1.3 billion over the four years.

Senator O'SULLIVAN: Given the whole thrust of the questioning by colleagues this morning, this business of cuts and that somehow they are going to play out in people's lives or in these programs' lives—and I am not seeking an opinion; I am asking you now to make an economic consideration—is not going to happen. This will not be felt; this will not be seen; this will not be tasted.

Mr Manning : As I said earlier in the day, as a result of the Attorney's announcement yesterday, no centre is going to receive a funding cut that they would have otherwise commencing in 2015-16, with the exception of environmental defenders offices.

Senator O'SULLIVAN: If I am to understand some of your earlier evidence, this funding cut that is described as a cut was to be absorbed through some contingency funding provisions that may or may not have been taken up in any event?

Mr Manning : I might clarify which one we are talking about. Are we talking about the MYEFO cut or the $15 million—

Senator O'SULLIVAN: Yes, I am talking about the MYEFO cut.

Mr Manning : The MYEFO cut so far, with the exception of the ECCCF, has been dealt with by contingency funds in relation to—

Senator O'SULLIVAN: Not drawn.

Mr Manning : Sorry, in relation to the Indigenous Legal Assistance Program, that is right, but it would have started to impact on service providers next year.

Senator O'SULLIVAN: I do understand. This goes to the heart of the second thrust, about reviews. It is difficult to economically quantify what a contingency fund should be, in some instances. But I imagine you monitor the contingency fund on a monthly or quarterly basis, at the very least, to see what demand is drawn against it.

Mr Manning : We have different reporting requirements against the three programs.

Senator O'SULLIVAN: Sure, but it is something in your mind. You are watching it. If there has been a drag on it, you are thinking about it. I imagine historically, across all governments, not just in your department but in any department, where there has been a serious drag on contingency funds and it appears as though that provision is going to exhaust itself before the term of the budget period, there would be discussions with the relevant ministers and, if important, cabinets can consider topping them up or increasing them to provide the protection you need from a contingency provision.

Mr Manning : As I indicated earlier, that is what happened with the Expensive Commonwealth Criminal Cases Fund. It looked like it was going to be exhausted, so the government reallocated money for the remainder of this financial year.

Senator O'SULLIVAN: So you do not need to have another inquiry of an inquiry to review to see that you have a requirement here, that there is a financial cliff coming in this space. You raise it with government and government can give due consideration to ensuring that your department is properly funded.

Mr Manning : That is right, and that is the point I was trying to make in relation to unmet need in this sector, where, because of two recent major inquiries, we understand there is unmet need, so we do not need to do more work to assess that there is unmet need.

Senator O'SULLIVAN: Sure. So just tidy up on these points and then I am happy to yield the balance of my time. We have had no cuts to front line services across this space?

Mr Manning : I just have to clarify: with the exception of environmental defenders offices—

Senator O'SULLIVAN: No, that is a given; you have given evidence on that.

Mr Manning : there have not been cuts to other service providers.

Senator O'SULLIVAN: Indeed, there are no anticipated cuts to service providers?

Mr Manning : One more qualification: the legal aid commissions, of course, would say that the second-year $15 million, which they did not get, is a cut to them as well.

Senator O'SULLIVAN: Yes, but unless they are in the office somewhere today furiously filling out the application to qualify for that, on trend that was not going to happen.

Mr Manning : It has been taken back and put into the budget.

Senator O'SULLIVAN: Yes, that is right. Indeed, in each area where challenges have arisen to review—and we talked about the contingency provisions—the government has quite properly and responsibly considered the circumstances and, as of yesterday, rectified what may have been a funding shortfall within the range of the current budget time.

Mr Manning : That is right. They have overturned the impact of cuts that were going to be implemented.

Senator O'SULLIVAN: Yes. I do not need a comment from you on this. Having listened for the last hour, I was just confused they you were saying that this government had not done the responsible thing, but indeed it has.

Senator JACINTA COLLINS: I might move on to some other examples, but I want to stress here that my earlier question was not about unmet need. It was about impact. Senator Scullion has taken on notice the question relating to the Yarra Ranges region and what was foreshadowed as the likely impact there, why the government changed its decision and where the funds are going to come from. Some of that may be budget decisions. I understand that part of it.

As I indicated earlier, we are aware of a number of representations too. But we are not in government. We are not in a position to make a solid impact assessment of various representations. I am a bit concerned to have been told that that process does not seem to have occurred. So I am going to ask you about a number of the ones we are aware of. You can tell me what has occurred with those. I think even today there have been some further reports about the New South Wales Far West Community Legal Service. Are you aware of what is happening with that service?

Mr Manning : I am not aware of any reports today, but the far west legal service is certainly a centre that was receiving supplementary funding for 2015-16 and 2016-17 and, as a result of the government's announcement tomorrow, will still receive that funding—that is right.

Senator JACINTA COLLINS: Let me run through what was on ABC breakfast radio this morning. I appreciate you may not necessarily have heard that.

Mr Manning : No, I have not.

Senator JACINTA COLLINS: Four staff have already resigned. They have not been told any details of how much they will be given by government. Some people have already left and started other jobs. Their principal solicitor has already resigned and accepted another job. They had already turned away clients—80 people. There is damage to staff morale. It has caused distress to vulnerable people. I am paraphrasing a radio report here. They will have to rebuild the far west legal centre from the ground up, and they are still crippled by the defunded advocacy services. Did the department or government receive any representations with respect to the far west legal centre? I think it is in Broken Hill.

Ms Jardine : Yes, I think we received representations.

Senator JACINTA COLLINS: What can you tell me about those?

Ms Jardine : They generally reflected what you have just said. I think what you said is an update, but we understood that staff had left.

Senator JACINTA COLLINS: The initial report I heard about this service was that it was going to close, I think, this week. Had you been advised of that?

Ms Jardine : No.

Senator JACINTA COLLINS: The concerning part of this one was that they are saying—at least on radio this morning—that they had already turned away 80 people. Had you received that information?

Mr Manning : Not that I am aware of.

Ms Jardine : I would have to take that on notice. I cannot recall.

Mr Manning : I have been aware in the media of reports, in a similar vein to what you said, before this morning in relation to that particular centre, and that they were attributing that to uncertainty in relation to the proposed termination of the supplementary funding. As I said earlier, as result of the announcement yesterday, this no longer going forward, so they have that certainty in relation to the two years of funding now.

Senator JACINTA COLLINS: Yes, but, again, we are looking at the impact of the MYEFO decision. The impact of that decision and the uncertainty it created is that a service in far west New South Wales has already had four of its staff resign. They say they will have to try and rebuild the centre from ground up. I am trying to understand how many services have similarly been affected by the uncertainty leading up to yesterday.

Senator Scullion: There is no unique solution to many of the assertions that are put in the media—for example, the fact that X number of people have resigned may not be at all associated with anything the government is or is not doing. It can be associated with a whole range of other issues including maladministration, workplace bullying—you name it. It often gets put to me that we are responsible for things that we are clearly not. It is very difficult for the officers to take detailed questions on an effect on a legal service in western New South Wales that has been asserted in the media when, clearly, the questions that you are asking have no unique solution or no unique answer.

Senator JACINTA COLLINS: I am not pressing for an answer here and now. But I am asking about representations that have been made to probably a range of parties across parliament that relate to this particular service. The department tells me they too have received representations. The press story today is saying that it relates to the uncertainty and that they will now need to rebuild from ground up. I am trying to understand in terms of our responsibility as a committee, with review and the policy brief with respect to legal aid, what the impact has been of this MYEFO decision and the government's reassessment. Simply to say that we have made a reassessment and the funds will be available denies the obvious fact that there has been an impact on a number of services as result of the uncertainty leading up to yesterday. This story on the ABC—there have been others, but this is the most current—highlights specific examples of that front-line service impact which you did concede was the basis for the government making its reassessment.

You and I have debated this issue in the Senate in question time and at other times where, for a long time, the government was refusing to accept that there was going to be any impact on front-line services. I read out an example of very clear front-line impact, which I think you accept has now been accepted by government. But I am trying to understand what evaluation of that impact there has been, rather than simply on a case-by-case or media-reported basis, and ultimately what we might need to do to try and repair that front-line impact.

You now have a service that was on the edge of closing this week. It may now be able to rebuild but will need to do so from the ground up according to this report. It has lost, if I am correct in my understanding, four of its five staff. I can imagine recruitment in Broken Hill is not the easiest thing to do for legal professionals. And it has already had to turn away 80 people. So it is fine that a reassessment has occurred and that ongoing funds will be available, but how do we repair what has occurred to date?

Senator Scullion: Clearly the example—three months before an adjustment to funding would take place—of the particular service that you are mentioning is completely anomalous, because we are not finding that circumstance across the board at all. What I am simply suggesting is: the assertion that four people out of five have left and have resigned as a consequence of some uncertainty around the funding is not a fact. We have no understanding that the circumstances under which four out of five staff have left—and they cannot find anyone else to work for them—is necessarily associated with any uncertainty of funding.

Senator JACINTA COLLINS: I did not say that. Please do not put words in my mouth.

Senator Scullion: No, but it is just very clear. If you are putting questions to the officers around what we have done to assess those things, I just want to make the point that that is clearly anomalous. I am sure that there are other circumstances around that may have led to those things, given the anomalous nature of that particular presentation.

Senator MOORE: Minister, I just want to add something. You talk about that being anomalous. I know that you have not been able to read everything that our committees do, but the Finance and Public Administration References Committee's inquiry into domestic violence heard evidence in Darwin two weeks ago and we had significant evidence from the legal services across the Northern Territory—well before yesterday's announcement, and I make that very clear—about the impact of the financial situation on their legal services. It is all on record. It might be useful for the department and for you to have a look at what they were saying on evidence, because the kinds of situations that Senator Collins has just identified about the Broken Hill service were the kinds of impacts described in that inquiry. So I am really interested to find out from the department and from you whether other services have been contacting the department with their concerns. When you say 'anomalous', it is my understanding, certainly with the Northern Territory services, that the issue is remoteness, linked into the funding allocation, because they have the circumstances—which you would well understand—of having contracted people working in the services who need to be secure about the life changes they make to go and work and live in places in remote areas. I am just putting on record my own experience that this experience seems to be not just peculiar to this one service.

Senator Scullion: I accept what you say and I have shown some interest and I have read many of the examples. As you would acknowledge, much of it was to do with the circumstance before yesterday's specific knowledge.

Senator MOORE: Absolutely.

Senator Scullion: I was simply saying that we have already had four-fifths of the staff leave and what has been asserted to us as a complete inability to replace those staff. That, to me, certainly is anomalous in the context of everything else that I have read. I am simply saying we should proceed with caution about seeing that as something that may be a consequence of any government policy or any decisions or actions that we have made. I was just saying that there should be some caution about there being, in those circumstances, not a unique solution.

Senator MOORE: Absolutely, but I think the staffing impact and the turnover of staff and people already making decisions in line with the knowledge that they had up until yesterday was a reality. Particularly when you have contracted people for one and two years, because of the nature of the service—

Senator Scullion: I appreciate that.

Senator MOORE: when they believe that they are going to have less funding into the future, people are making decisions. I invite you to read that evidence.

Mr Manning : Could I just make one point in relation to the comment that the centre was going to have to close. In 2014-15 my understanding is the centre received $266,515 in base funding, so that funding was never at risk in relation to the MYEFO savings. So it was still going to receive that funding. I just wanted to make sure that we are not making the point that, because the base funding was at risk, the entire centre had to shut down, because it was still receiving more in base funding that it was getting in supplementary funding this year in any event. I am not taking away from the fact that there was uncertainty there, which has now been settled, and that that uncertainty would have been impacting on the staff—and, as the minister said, that will impact on different people in different ways—but it was still receiving that amount of base funding, which I think is important to note.

Senator JACINTA COLLINS: While we are on that point for this centre, let me give you my understanding of the federal funding and you can correct me if I am missing a component of it or misunderstanding what they were uncertain about. They received a one-off payment of $215,000 in May 2013—I cannot tell you what that actually came from—and they received $660,000 over four years, approved in June 2013, as part of a range of additional funding allocations to community legal centres. So across that four-year period it was broken up to $90,000 $190,000, $190,000 and $190,000.

Mr Manning : That is the supplementary funding we have been talking about.

Senator JACINTA COLLINS: Okay. So it was that supplementary funding that they were going to no longer receive?

Mr Manning : That is right—

Senator JACINTA COLLINS: And what was the base funding they would continue to receive?

Mr Manning : The only figure I have got before me is the one I just gave out. In 2014-15, base funding was $266,515.

Senator JACINTA COLLINS: Each year?

Mr Manning : That is right. I have just got this year's figures.

Senator JACINTA COLLINS: So the non-continuation of the supplementary funding element of their funding pool amounts to between 40 and 45 per cent of their total funding?

Mr Manning : It would have.

Senator JACINTA COLLINS: That is a pretty significant component of your funding—

Mr Manning : It is, of course. I just think, in terms of saying, 'Not getting 45 per cent of your funding means you must close'—I do not think that necessarily follows.

Senator JACINTA COLLINS: I had not made that assertion.

Mr Manning : That is what I was clarifying.

Senator JACINTA COLLINS: I also was not making the assertion that staff could not be replaced. The only reflection I made was pretty common knowledge—that it is not easy to recruit new legal professionals in remote places like Broken Hill.

Proc eedings suspended from 10:47 to 11 : 11

CHAIR: We have been trying to see which officials we can let go, but it has been pointed out that, should we finish with the Human Rights Commission this afternoon, we would return to the Attorney-General's Department and the Ministry of Arts. All we can say with any certainty, Mr Moraitis, is that the Ministry of Arts will not be required this morning, but they may be this afternoon.

Senator JACINTA COLLINS: On that point, I would like to be more helpful than that. I would like to put my questions to the Ministry of Arts on notice and I am more than happy to indicate the other areas of questioning I have so that other people may leave. I do not know other senators feel about that.

CHAIR: That is very useful and appreciated, Senator Collins, but it is of little use, if other senators cannot do the same.

Senator JACINTA COLLINS: Can other senators identify the areas for questioning?

Senator O'SULLIVAN: I can, after you have identified yours.

Senator JACINTA COLLINS: They include: legal services cuts, the replacement of Family Court judges, the trade union royal commission, site-blocking legislation—the Copyright Amendment (Online Infringement) Bill 2015—and the violent extremism program. Then there are questions to the Human Rights Commission and on the arts—

Mr Moraitis : If I may, Senator: these are not questions on notice. You will be asking questions.

Senator JACINTA COLLINS: Yes. I am putting on notice my questions in relation to the Ministry of Arts, but these are the areas I am aspiring to get to. Given the amount of progress I have made, however, I suspect I will not get anywhere near that far.

CHAIR: What we are trying to say is: if people are not mentioned, they may go. Senator Moore, do you have any?

Senator MOORE: I am checking.

CHAIR: Senator Wright?

Senator WRIGHT: Yes, I have questions on legal aid cuts; the Human Rights Commission; anti-terror; I suppose under what I understand to be outcome 1 group 3, program 1.6; justice targets; Indigenous legal issues; and outcome 1 group 2, program 1.1 international law and human rights division.

CHAIR: Senator Reynolds?

Senator REYNOLDS: Just the arts, if they come back.

CHAIR: Senator O'Sullivan?

Senator O'SULLIVAN: I am in your hands, Chair, except for Australian government's disaster financial support.

CHAIR: That is the one I have questions for as well. Anyone else who was not named, Mr Moraitis, it is your department, but if—

Mr Moraitis : Senator Reynolds, did you say you will ask about the arts?

Senator REYNOLDS: Only if they come back, otherwise I will put mine on notice.

Senator MOORE: Does that let anyone go, Mr Moraitis?

Mr Moraitis : It is gasp and go between now and—

Senator JACINTA COLLINS: Yes, I thought so.

Mr Fredericks : Just to be clear: my understanding is the arts have been excused, because both senators have indicated they were happy to ask their questions on notice.


Senator REYNOLDS: That was vigilant; thank you.

Mr Fredericks : Yes, so they are excused for the day.

CHAIR: That is not quite what Senator Reynolds said, but I think the reality is we are not going to get anywhere near them, so they can go and do something productive.

Mr Fredericks : Thank you.

CHAIR: Senator O'Sullivan, are you next?

Senator O'SULLIVAN: No, I am at the end of my time; thank you.

CHAIR: Senator—

Senator JACINTA COLLINS: I always have questions.

CHAIR: No, you have had two goes, haven't you?

Senator JACINTA COLLINS: I have.

Senator O'SULLIVAN: Noting that we have yielded time.

Senator WRIGHT: I just want to clarify a couple of things first of all. The Productivity Commission report into access to justice—has the government provided a formal response to that report?

Mr Manning : Not yet, no.

Senator WRIGHT: Can we ask when that is going to come?

Mr Manning : I do not know, Senator; it is a decision for the government.

Senator WRIGHT: Minister, as the minister representing the minister, do you have any idea when that response to the Productivity Commission report is going to be forthcoming?

Senator Scullion: That is a matter for government. Making an announcement of the time will be a decision of government.

Senator WRIGHT: Thank you. The Allens report into legal services: similarly, has the government made a formal response to that report?

Mr Manning : No, though it was never intended to formally respond to it is my understanding. It has always just been informing the renewal of legal assistance arrangements.

Senator WRIGHT: Thank you for that. I want to ask questions about the advocacy issue again. I think these—I will ask you, Mr Manning, or whoever is appropriate, but obviously if you feel that it is more appropriate to ask if it is a matter of policy or opinion, then you will refer it to the Minister representing the Attorney-General.

Mr Manning : Yes, Senator.

Senator WRIGHT: What I want to ask questions around is recommendation 21.1 of the Productivity Commission report, which states:

The Australian, State and Territory Governments should provide funding for strategic advocacy and law reform activities that seek to identify and remedy systemic issues and so reduce demand for frontline services.

We do not know what the government's attitude is to that recommendation, or to any of them, because there has been no formal government report yet and we do not know when that is coming. Notwithstanding that, the Attorney-General is clearly on the record, in answer to a question in the Senate, saying that he does not see that advocacy actually helps people in need, as opposed to frontline services. Perhaps I need to ask you, Minister Scullion: why is the government so determined not to fund advocacy work when there is a recommendation in the Productivity Commission report that it actually does assist people and reduces demand for frontline services? What is the rationale?

Senator Scullion: I can possibly answer part of that. Certainly anecdotally it used to be the case where legal services had a separate line item and used to deal separately with both law reform and advocacy. I have been informed, certainly in conversation with NAAJA and other organisations of a similar ilk, that the practice of dealing with that separately is no longer the case. I think that it may be the case—I am not able to answer that; I would have to seek their advice again—that they may have thought of using some of those advocacy and law reform funds for frontline legal services, so that that just became part of their entire funding package. People thought that they would not see advocacy and law reform as a separate item, to be only used for that. I think that was certainly an assumption that I had made—that they were separate items. They now tell me that, for some time, they have not been considered separate; they have been part of a budget that says: 'We can deal with frontline services. We are able to deal with law reform. We are able to deal with advocacy,' rather than them actually quarantining a particular part of their budget for either law reform or advocacy.

Senator WRIGHT: Thank you, Minister; I do not mean to be rude, but we just have very limited time, as you might be aware.

Senator Scullion: My apologies.

Senator WRIGHT: No, no; that is all right. You were making a genuine attempt to answer the question; thank you for that. But, Mr Manning, can I come back to you, because the Attorney-General is clearly on the record constantly referring to what I consider to be a spurious distinction between frontline services and advocacy. Indeed, I understand that there is a clause in funding agreements that actually restricts the use of the funding for advocacy purposes. Is that not right?

Mr Manning : The way that decision was implemented was to remove advocacy as permissible use of Commonwealth funds from guidelines. But perhaps it might assist you if I read the amendment that went into the national partnership agreement in relation to legal aid commissions, as an indication of the government's position on it, because it is a good articulation of the issue, I think, we are discussing—it will not take long—if that is all right. It says—

Senator WRIGHT: Is it right that there are currently clauses in agreements with or in allocation of funds to community legal centres that restrict the use of the funds for advocacy?

Ms Jardine : No. The agreements and guidelines were amended to remove law reform and legal policy work as a funded activity.

Senator WRIGHT: As a funded activity?

Ms Jardine : Yes.

Senator WRIGHT: So legal services are justifiably concerned about using funding from the Commonwealth for activities that have not been funded, according to the agreement.

Mr Manning : They are only meant to use it for purposes that have been funded. But, as I think the Attorney might have said at previous estimates, that does not restrict them from using other resources; for example, community legal—

Senator WRIGHT: No, but they are not to use Commonwealth resources, so they would have to be at pains to be able to establish that they have not used Commonwealth resources for those activities if they are continuing to do them, wouldn't they? They would be concerned.

Mr Manning : Yes. They are not able to use Commonwealth resources for it, which is, I suppose, different from having to establish that they have not done it.

Senator WRIGHT: That is different from the response that the minister gave, which is that he thought there was not any longer going to be a distinction and that perhaps it was a misunderstanding among the CLCs. The CLCs are really concerned about not doing the wrong thing here—certainly, I am aware of that. So the question is: why is it—given the Productivity Commission report that acknowledges that it actually helps people in need by reducing the people coming through the door with these systemic legal issues; so it helps people in need—that the policy is that advocacy will not be allowed to be done?

Mr Manning : Can I come back to—

Senator O'SULLIVAN: Chair, a point of order: you are seeking an opinion, Senator.

Senator WRIGHT: I am asking the minister assisting the minister, because he did not—

Senator O'SULLIVAN: Well, it was directed at Mr Manning, and it was seeking his opinion. And you know clearly—

Senator WRIGHT: Perhaps I can ask Minister Scullion—

CHAIR: I will just rule on the point of order, Senator Wright, if I may. If it is a question of the opinion of an officer, then the officer is not obliged to answer it.

Mr Manning : Sorry; is the question directed to me? I just think that if I set out what the amendment to the NPA has been, it might clear up some misconceptions, because it says there—

Senator JACINTA COLLINS: Sorry, Mr Manning; the amendment to the—

Mr Manning : To the national partnership agreement on legal assistance, which governs what legal aid commissions do. It says: 'Commonwealth funding must not be used for the purposes of lobbying government or elected representatives or engaging in public campaigns. This does not include a situation where a legal assistance provider makes a submission to a government or parliamentary body to provide factual information and/or advice with a focus on systemic issues affecting access to justice.'

Senator WRIGHT: Perhaps I can clarify further. If we have an organisation that receives funding from the Commonwealth providing its experience in relation to a particular law, in a forum—so it is not sitting with a client across the desk giving legal advice; it is maybe 10 or 50 clients in a forum—showing how, for example, the law has gone too far and demonstrating how the law could be changed, is that advocacy?

Mr Manning : It would depend on the circumstances, I think.

Senator WRIGHT: That is the trouble, isn't it? It is really unclear. And the CLCs are really concerned. If their main source of funding is Commonwealth funding, they are really concerned about whether what they would see as a legitimate activity to help people in need is actually characterised as advocacy.

Mr Manning : I am not aware of any situation where the government has gone to a recipient of Commonwealth funding and said, 'you are engaging in advocacy'—for example, by telling a group of people what their legal rights are. That clearly is not. As I said earlier, in relation to advice to government or parliamentary bodies about systemic issues that is not—

Senator WRIGHT: That is the question I asked previously. I am glad that—

Mr Manning : Getting into a situation where you go to a group of people and say, 'Here is what we see as the problem with the law and here is what you could be doing to change it'—obviously, that is a grey area and it would be getting close to it. But I cannot comment without knowing specifics of motivations et cetera

Senator WRIGHT: No, but it is—

Senator O'SULLIVAN: That is legal advice.

Senator WRIGHT: It is not asking for legal advice. It is asking for information for people who are receiving funding so they do not do the wrong thing with their funding. Clearly, if the guidelines were really clear there would not be a need for these questions. It would be very clear whether something was in or out basically. It is interesting that you give the example of an organisation attending a forum like that because—

Mr Manning : I just used that because that was your example.

Senator WRIGHT: That is right—but in fact you said you are not aware of any issue where that has occurred. In fact, that was one of the examples that was given before the decision was made to cut the funding of the Australian Network of Environmental Defenders Offices. That was actually something that they did. I think you indicated that sometimes that is going to be a grey area

CHAIR: Do you have a question, Senator?

Senator WRIGHT: I am just asking.

Mr Manning : Just to clarify: what I said was, 'I am not aware of any situation where the government has raised a concern with people since the guidelines were changed in relation to their behaviour'.

Senator WRIGHT: No, and I guess I would ask you to comment on this then: do you understand that, when we have had the to and fro of funding and so on and people have been needing to put people off—so it is a fraught environment—it is perhaps cold comfort that at this stage the government has not gone to a particular organisation and said, 'We know that you have been doing advocacy'. They want to get that right.

CHAIR: The question is: 'Do you understand it is cold comfort?'

Senator WRIGHT: I do not think that—

Senator O'SULLIVAN: It is an expression of an opinion—

CHAIR: This is for questions not for long speeches to promote a view you have about an issue.

Senator WRIGHT: I am asking—

CHAIR: What is the question?

Senator WRIGHT: I am asking Mr Manning the question, Chair.

CHAIR: What is the question?

Senator WRIGHT: I have asked him the question. Do you understand the question that I am asking, Mr Manning?

Senator O'SULLIVAN: Point of order, Chair.

Senator WRIGHT: Do you understand the question I am asking?

Senator O'SULLIVAN: I am asking to make a point of order.

CHAIR: Yes, Senator O'Sullivan?

Senator O'SULLIVAN: Again, the question is seeking the opinion of this witness, and the senator should direct her questions, if she needs to, to the minister.

CHAIR: Thank you.

Senator JACINTA COLLINS: Point of order, Chair.

CHAIR: Senator Collins?

Senator JACINTA COLLINS: On the point of order, if Senator O'Sullivan would refrain from making interjections and suggesting that Senator Wright needs to justify her questions, perhaps her questions would be more succinct.

CHAIR: My ruling on the point of order is that we are here to ask questions, not to editorialise, not to have a debate with officers, no matter how pleasant that might be.

Senator JACINTA COLLINS: Or with Senator O'Sullivan.

CHAIR: The question as I understood it was: does Mr Manning understand that it is cold comfort to someone. If that is the question, whether Mr Manning thinks it is cold comfort or not is a matter of opinion and is not allowable and I will not allow the question. So do you have another question?

Senator WRIGHT: Mr Manning, can I ask a question again, then. I am putting to you that the circumstances in which recipients of Commonwealth funding for community legal centres are too vague and that the fact that none has been told that they have been told that they have acted inappropriately at this stage does not help predict for the future what their behaviour needs to be. Is it possible for the department to provide very, very clear definitions and guidelines about what is and what is not advocacy?

Senator O'SULLIVAN: He just read one out.

Mr Manning : Certainly, we are aware; the issue has been raised—

Senator JACINTA COLLINS: Chair, can you please ask Senator O'Sullivan to refrain?

Mr Manning : The issue has been raised with us, and we have been working—particularly through, for example, peak bodies—in order to provide some clarification. We are happy to keep doing that; however, I think there is a point where you question why the ordinary dictionary definition of some of the terms is not good enough in the sense of 'what are people asking for permission to do'. I would say there has been quite a bit of comfort provided to providers in terms of that, and I think those words I read out earlier do provide a degree of comfort in relation to addressing systemic issues. But we are certainly happy to keep working with providers in relation to providing greater clarity.

Senator WRIGHT: Mr Manning, the clarification regarding law reform work came after a series of questions that I asked in estimates of the Attorney-General, whereby at that point he opined that law reform work, providing information to committees and so on, would be within advocacy and would not be allowed, and he suggested the community legal centres would do that in their own time. So the dictionary definition of advocacy was not obviously reliable—

CHAIR: What is your question?

Senator WRIGHT: I am just making the point that—

CHAIR: You are not here to make points. You are here to ask questions.

Senator WRIGHT: I am asking you, Mr Manning, I am responding to the view that Mr Manning expressed that we should be able to rely on the dictionary definition of advocacy. The difficulty is that previously we have not been able to do so. Do you agree with that?

Mr Manning : All I could say is that I think the wording I read out before as an indication of what is permitted and not permitted is quite clear. If there are people who think it is not clear in certain circumstances, then they can call the relevant program area and we can engage with them in terms of providing that clarity. We do not want to get into a situation where—quite rightly, and I think you might agree, based on what you are saying—people are ringing up all the time saying, 'Is this in or is it out?' We want to have a situation where people can do it. But I note the point that, I think, the Attorney-General might have made in perhaps that estimates or another estimates, which is that this is only in relation to use of Commonwealth funding. Many volunteer hours go into community legal centres. Some of them get state funding; some of them get funding from other sources. There is no restriction from the Commonwealth perspective as to how they use those particular resources.

Senator WRIGHT: I come back to the minister—obviously it would be very helpful to have the Attorney-General; here this is one of his particular views. So I will come back to—

CHAIR: Do you have a question?

Senator WRIGHT: I am making the point that we do not have the Attorney-General—

CHAIR: You are not here to make points; you are here to ask questions of ministers and officials about the estimates.

Senator WRIGHT: I am expressing regret that we do not have the Attorney-General here, and I will ask the Attorney-General when he comes back.

Senator O'SULLIVAN: You are showing great inexperience in estimates.

Senator WRIGHT: Thank you, Senator O'Sullivan. I am very happy—

Senator O'SULLIVAN: Well, you are. You are taking up my time—

Senator WRIGHT: to take advice at the knee of the master. Minister Scullion, given what we have been discussing and given that the argument is made, 'Well, this is only in relation to Commonwealth funding', I come back to the question: what is the rationale? If it is about helping people in need, what is the rationale to not allow Commonwealth funding for advocacy, which the Productivity Commission has clearly said helps people in need and prevents the need for front-line services?

Senator Scullion: There are two things: first of all I would like to restate what I know the Attorney-General would wish to say, which is that attending the funeral of Malcolm Fraser, someone that was known well to him, was something that he felt was really important and he regrets deeply that he is not able to attend today.

I do not accept the premise of the second part of your question, which is that the guidelines that I have just listened to for the first time prevent advocacy. That is what the premise of your question indicates. It actually says there are certain types of advocacy. For example, there is advocacy that is providing advice. That gets provided to me from NAAJA, and I am very grateful for that at very frequent intervals. That advice is bout the nature of the system and how we can make it more efficient and those sorts of things.

It also talks about advocacy to parliamentary committees and those sorts of processes. But it limits that advocacy—no doubt because, like everything, we have to prioritise our funding. As you know, we are very keen on ensuring we provide the very best front-line legal service for those people in legal need.

I think those guidelines—certainly to me, as a matter of opinion—seem to be very balanced and well considered. But it certainly does not prevent advocacy; it just indicates a sort of advocacy. And, as the officers at the table have indicated, because of the spectrum of the nature of advocacy, there is the opportunity to speak to the department and get some clarification on that sort of advocacy.

CHAIR: Thanks, Senator Scullion. I will now go to Senator Moore.

Senator MOORE: I will pass to Senator Collins.

Senator JACINTA COLLINS: Thank you, Chair. I would like to return to Senator Scullion's assertions that these cases I am addressing are an anomaly.

Senator Scullion: There was only one, and I suggested it was an anomaly because you have lost four-fifths of the staff; they have already resigned. So I was quite specific about that particular case.

Senator JACINTA COLLINS: I am happy to take your suggestion that the anomaly was that one particular example of four of five. But there are a number of services which I still want to understand—the circumstances around what is happening to them to the best that we are able. You have taken on notice also the Yarra Ranges legal centre. The next one I want to ask about is the closure of the Nhulunbuy service. What can you tell me about that one?

Mr Manning : That is the centre run by NAAJA in the Northern Territory, is that the one you are referring to?


Mr Manning : That body made a decision to close that centre. I do not have the details with me; I think it was last year that they announced that.

Senator JACINTA COLLINS: You do not have the details?

Mr Manning : I do not have the details of the date they made the announcement.

Senator JACINTA COLLINS: No, I am after the details of the—

Senator Scullion: I have some background knowledge, because I have had discussions with NAAJA about this. Again, there is no really unique assumption I can make from this, but I have yet to hear from NAAJA, in consideration of yesterday's announcement, about whether or not their decision to close Nhulunbuy was in fact a rationalisation in front of what they thought might be able to happen. You also have to take into consideration that about the time they made that announcement there was also an announcement that the fundamental economy of Nhulunbuy—that is, the bauxite mine—indicated it would close its alumina production, and it has since has. Again, I am not sure, and I do not wish to verbal them, but it is something that is a matter for NAAJA. A number of things happened around that time that certainly would have had an impact on what they considered the provision of those services. It could have been an anticipation of the budget and it could also have been associated with the closure of the mine.

Senator JACINTA COLLINS: Can I understand what representations they made to either the department or the government as to the circumstances that would lead to the closure.

Mr Manning : We can take the question in relation to details on notice, but at that time there was uncertainty in relation to the proposed budget cuts and about the quantum that each of the ATSILSs would receive. My recollection is that, at the time, NAAJA attributed the decision, at least in part, to that uncertainty. My recollection is also that it did not mean a cessation of services in that area but rather that they would provide them from one of their other offices on a circuit basis, if you like, rather than having a permanent presence. The decision of yesterday will mean that they will not receive the impact of the funding reduction, because of the cuts that were proposed up until yesterday.

Senator JACINTA COLLINS: I understand the impact of yesterday's decision, but what I am attempting to understand is—

Mr Manning : Sorry, I have just been handed the date. It was on 24 June 2014 that the decision was made.

Senator JACINTA COLLINS: To close at the end of—

Mr Manning : That is when the board made its decision, I am advised.

Senator JACINTA COLLINS: To close as at mid-2015, wasn't it?

Mr Manning : No. The office closed mid-December 2014.

Senator JACINTA COLLINS: It closed? I thought it was foreshadowing closure.

Mr Manning : I am told that it has closed.

Senator JACINTA COLLINS: So we do have a service that has closed, when we heard in the Senate even this week that no services had closed.

Mr Manning : In relation to the Indigenous Legal Assistance Program, we do not require services to be provided in particular locations. That is left to the providers. Obviously, there would be a limit to that. They have made a decision more than 12 months before receiving a funding reduction to close a particular office. As I said earlier, in their public statements they attributed some of that to some funding uncertainty, but whether or not that its entirety of the factors that were taken into account in their decision-making process, as I think the minister indicated, is a matter for the NAAJA board. As I said earlier, they are servicing from the Darwin office on a circuit arrangement, as they do in a number of other locations.

Senator JACINTA COLLINS: Do you know what impact there is of moving to a circuit type delivery? In similar terms to what we were just talking about with respect to the far west legal service, which says that it has turned away 80 people, do we know what the impact is of a service such as the Nhulunbuy one moving to being operated on a circuit basis?

Mr Manning : I would have to take that on notice. I do not have that information here.

Senator JACINTA COLLINS: You will correct the evidence if you are wrong about exactly when the service closed, too, I am sure.

Mr Manning : I think there is a difference, potentially, between when that service closed and when the leasing et cetera terminates. As I said, I am advised that it has already occurred, but they are probably still—

Senator JACINTA COLLINS: Perhaps if you could just take on notice—

Mr Manning : but I will clarify.

Senator JACINTA COLLINS: when it did close.

Mr Manning : Certainly, Senator.

Senator JACINTA COLLINS: Thank you. Now, what can you tell me about Redfern?

Mr Manning : Are we talking about Redfern community legal centre? It was one of the centres which are impacted by the government's decision yesterday, in the sense that its additional funding that would have ceased two years early no longer will.

Senator JACINTA COLLINS: Yes, but what has happened to its operations to date; and what representations has the department or government received with respect to the Redfern service?

Mr Manning : I do not have that information. I am not sure if Ms Jardine has personal knowledge of it.

Ms Jardine : No. We have received a number of representations, and we are happy to take on notice which organisations we received representations from.

Senator JACINTA COLLINS: Yes, I think that would be a useful question for you to take on notice: the full number of organisations for which representations have been made with respect to the impact of the foreshadowed reductions in funding that have now been reversed. I think that would be a helpful one. Are you aware of the statements by Liana Buchanan reported in The Agetoday? She is theChief Executive of the Federation of Community Legal Centres in Victoria. She said:

… many centres had already reduced their lawyers and wound back services in preparation for the planned funding cuts.

Mr Manning : I am not aware of those comments, no.

Senator JACINTA COLLINS: Okay. Can you inform the committee of any assessment that has been undertaken of the likely impact of the reductions in service provision that have already occurred in anticipation of the cuts that were foreshadowed but subsequently reversed?

Mr Manning : Just to clarify, because I am aware of the earlier conversation around work, are you asking: has the department done a body of work to assess, overall, the impact on individual centres?

Senator JACINTA COLLINS: I am asking about your understanding of the level of winding-down that has occurred in anticipation of the funding cuts that have now been reassessed. Would you say it was 20 per cent? Would you say it was 40 per cent? Senator Scullion says four out of five lawyers was an anomaly. So I am asking: what is your understanding, then, if that is an anomaly?

Mr Manning : I do not have an understanding of that, beyond knowing what the cuts were, because they would impact on each centre differently according to everything from the personal circumstances of the staff to the availability of other funding resources through to their total quantum. So I think that it would be difficult to do an overall impact assessment to say, for example, 20 per cent of centres from those 57 have lost staff. I do not think we would have that information. But I am not sure we could do it anyway, for the reasons I have just mentioned.

Senator Scullion: As you would be aware, Senator, much of the evidence—or the lobbying, if you like—that has been put forward has appraised it in the context of what will happen when the cuts take place. The cuts are no longer taking place, so I think it is very difficult to take from the lobbying what was potentially cut in anticipation of those cuts, and the cuts that might have taken place when the actual funding was to be cut, when that funding is now not being cut. I think it is a fairly confusing space in terms of those people making submissions, in the sense that they could be part of a spectrum. Some were saying, 'This is what will happen if those cuts take place.' They are now not taking place. As part of this lobbying process, the circumstances might have been, 'We are having to consider staff cuts,' or, 'People are leaving because they do not have enough time; they need some security in their own jobs.' They are possible elements. But it is very hard to differentiate and come up with an answer around that. I think that will be simply too difficult to answer.

Senator JACINTA COLLINS: What I am trying to understand is: what is the lasting damage? Certainly, there are some representations reported in the media saying 'Too little, too late', 'Damage already done', 'Valuable infrastructure—'

Senator Scullion: There is always going to be commentary in the media about those matters—

Senator JACINTA COLLINS: Well, that is why I am here, in front of the department.

Senator Scullion: It does not matter what the activities of government; when we do something it is always prefaced by some acrobatic act, like a backflip. If you want to get to the nub of issues and material, we should focus our questions on things that the officers can actually answer.

Senator JACINTA COLLINS: And, indeed, why I am asking the officers to respond to these questions rather than just accepting what is reported in the media. The difficulty is, the officers tell me, that the department has done no such evaluation. I can accept that some things are difficult to evaluate, but that the evaluation itself has not been attempted is my concern.

Senator Scullion: These decisions are matters for the various legal services. These decisions are also a matter for individuals within those services. There has been some information provided to us from lobbying about what will happen when these services are cut. They are no longer going to be cut, so that is not appropriate. As I have said, the spectrum of submission anecdotally is quite wide. I am not really sure how that can benefit us. It is certainly not something that the government could have conducted a cogent review about.

Senator JACINTA COLLINS: Some understanding of the lasting damage to our community legal services and legal aid should not be beyond the department to comprehend.

Senator Scullion: Certainly, from government's perspective, there are now not going to be any funding cuts in this area. Yes, there is a period of time between now and three months—we are not cutting them completely. There were going to be some cuts to these areas. There will be an appreciation of those, but that will be very different across a very different spectrum of service delivery—the size of the organisations, the spread of the organisations, the remoteness of the organisations. But, no, as the officers have said, we have not done an appreciation of that. Certainly the feedback that I have had over the last day from the sector is very positive. I do not believe there is going to be an impact on front line services.

Senator JACINTA COLLINS: That is not what the media report suggests.

Senator Scullion: Then I would certainly disagree with that report.

Senator JACINTA COLLINS: We have been talking about a quantum of roughly $25 million. I would like to move on to another quantum of roughly $25 million, if we can, Chair. I would like to go to the trade union royal commission legal costs matter, if we can.


CHAIR: That is fine. I was going to remind all senators that, whilst we are dealing with legal aid, that was done in cross-portfolio and recent happenings, and there are still many other things on the program. So, yes, the royal commission is fine.

Senator JACINTA COLLINS: Thank you. I have located contract notices on Austender which indicate the government has spent almost $23 million on lawyers for this commission. That $23 million figure includes $17 million for solicitors at Minter Ellison, almost $3.4 million for senior counsel assisting, Jeremy Stoljar SC; almost $1.4 million for counsel assisting, Michael Elliott; over $866,000 for counsel assisting, Sarah McNaughton; over $860,000 for counsel assisting, Fiona Roughley; over $130,000 for counsel assisting, Thomas Prince; and over $100,000 for the AGS. Is this accurate and is it the total amount the Commonwealth intends to spend on lawyers for the trade union royal commission, or is this figure expected to skyrocket even further?

Ms Fitzgerald : The amounts that are on Austender are the maximum allowable contract amounts that can be paid to any of the counsel that you have mentioned or the solicitors that you have mentioned. They do not represent what has been paid. They are a maximum amount that can be spent without going back and changing the details that are on Austender.

Senator JACINTA COLLINS: What can you tell us about what amounts have been paid to date?

Ms Fitzgerald : I might hand over to Sue Innes-Brown in terms of costs to date.

Ms Innes-Brown : The amounts paid to legal counsel are commercial-in-confidence and accord with what the services on a commercial basis are paid. If you are referring to how much we have paid for salaries and supplies as of 2013-14 and also year to date to 28 February, I can certainly supply that information but, if you require specific information about what is paid to individuals, those amounts are commercial-in-confidence.

Ms Fitzgerald : I might also be able to add to that if it is helpful. I certainly have data here today that is the total expenditure to date of the royal commission in 2013-14 and to date in 2014-15 but I do not have—and I do not know whether Ms Innes-Brown would have it either—that broken down into, say, the line item of legal expenditure for the reason that you have just alluded to yourself actually: that some of the legal costs are in relation to contractors—that is, counsel assisting—and some of the legal costs have been paid to AGS and of course some of the costs may well be represented in salary line items in the budget and the expenditure and I would not want to give you an incomplete picture. If you want that figure, I suggest the best thing to do is to take it on notice for the global figure.

Senator JACINTA COLLINS: I think we will explore that in a bit more detail, but I think there is one issue here in terms of the comments around some of this information being commercial-in-confidence. Senator Scullion, if what is being sought here is a public interest immunity argument then I think the department should deal with that, not assert commercial-in-confidence as the factor for why this information should not be available to the committee.

Ms Fitzgerald : Minister, if you would like me to take that.

Senator Scullion: Certainly.

Ms Fitzgerald : My understanding is that the general practice has been under all governments that data in relation to the rates paid to counsel assisting and royal commissioners in royal commissions is treated as commercial-in-confidence.

Senator JACINTA COLLINS: But that is not the relevant issue for this committee. The relevant issue for this committee is that there are public interest grounds for why immunity should apply and so I will give you the time before you come back to me to consider precisely what public interest immunity argument you might want to put forward—

Ms Fitzgerald : Certainly.

Senator JACINTA COLLINS: because commercial in confidence is not sufficient.

Senator Scullion: Are you asserting that the commercial-in-confidence answer is not a part of the public interest?

Senator JACINTA COLLINS: No, I am not asserting that. I am just saying that a response that solely relies on commercial-in-confidence is not sufficient for a Senate committee.

Senator Scullion: We will seek some advice on that and perhaps take that question on notice. We will seek further advice—

Ms Fitzgerald : Certainly. We are happy to do that.

Senator JACINTA COLLINS: I do not want you to take it on notice. I want you to deal with that during the course of today.

Senator Scullion: Indeed, we will, Senator.

Senator JACINTA COLLINS: Thank you.

CHAIR: Thanks, Senator Collins. Just before I pass to Senator O'Sullivan, Ms Fitzgerald, I assume that, in accordance with normal practice from governments since time immemorial, the arrangement with legal counsel is that there will be no disclosure of fees.

Ms Fitzgerald : Yes, that is precisely the case. The reason is obvious when one thinks about it. The government needs to be in a position to negotiate the best rate possible for the best possible legal advice in relation to the matter at hand. Obviously it is important that there not be, if you like, a benchmark or a particular standard, so this gives the government the opportunity to freely negotiate in relation to those things.

CHAIR: Are these usually written contracts that you have engaging lawyers or is it just verbal?

Ms Fitzgerald : No, in relation to the trade union royal commission, it is certainly the case that there were letters of offer in relation to each of the counsel assisting and indeed in relation to the royal commissioner himself. The solicitor assisting I am sure you know, Senator, is Minter Ellison. There was a contract with Minter Ellison. That has been extended given the extension of the royal commission.

CHAIR: But what I am really asking is: in the contract is there a clause that says, 'We will not disclose your fees'?

Ms Fitzgerald : My reaction to that is that I think there is something in the contract with the solicitors. I am not 100 per cent certain that there is something in the letter of offer with the counsel assisting, so I would like to take that on notice and check, if that is okay.

CHAIR: Yes. But, if it is a written contract, a convention or a verbal contract and you disclose those fees—I am perhaps asking here for a legal opinion, which I should not—I would assume that those legal people could then sue the Commonwealth for breach of their contract of nondisclosure.

Ms Fitzgerald : I certainly would not want to comment on that. What you have described is potentially a legal issue. But, as I said, my answer stems from the fact that this has been the convention and the practice of government after government.

CHAIR: It might be in the public interest that the Commonwealth does not get sued by legal counsel for disclosing a fee arrangement which the Commonwealth agreed it would not disclose.

Ms Fitzgerald : Certainly.

CHAIR: That would perhaps be one element of the public interest. The other, of course, is that it is important for the Commonwealth to get the best deal, as I understood you to say.

Ms Fitzgerald : Yes.

CHAIR: That means that you cannot go around broadcasting what the hourly rate is so that people might be seen to be undercutting it or otherwise. I guess that is the public interest in that.

Ms Fitzgerald : Exactly, and that is why this is an exception in relation to the Commonwealth procurement rules.

Senator JACINTA COLLINS: Chair, on that, for the benefit of the department can I ask you to have a look at procedural order 10—indeed, it would have been in the chair's opening statement as well—where witnesses are specifically reminded about statements that information or a document is confidential or consists of advice to government or is a statement that meets the requirements of the 2009 order. Witnesses are required to provide some specific indication of the harm to the public interest that could result from the disclosure of the information or document. So just making a claim of commercial-in-confidence is not sufficient. We want to be able to evaluate what harm might result from the provision of that information, and that is what I am suggesting you go away and address, please.

CHAIR: Thanks, Senator Collins, but I assume Ms Fitzgerald just did that when she said, in answer to my questions, there were two elements of harm. One was that the Commonwealth might be sued if they disclosed it and the second was that nondisclosure allows the Commonwealth to get a better fee. They are two things that have already been put on record which I think would satisfy this standing order, but—

Senator JACINTA COLLINS: They may have further.

CHAIR: Ms Fitzgerald may have further.

Senator Scullion: In regard to that question, we are saying that that is in the public interest and that is the reason that we are not providing that particular information. Whilst it has been well discussed, the two points again are, first of all, about the potential liability of the Commonwealth and, second, that it is in the public interest not to disclose the commercial-in-confidence information in this regard. That is our position.

Senator JACINTA COLLINS: I am sorry, Senator Scullion, but no senator would accept that an answer to procedural order 10 is simply that, because it has been labelled commercial-in-confidence, it is in the public interest not to disclose.

Senator Scullion: That is not my answer. There are two parts to that. One is the potential liability to the Commonwealth. The second is commercial-in-confidence.

Senator JACINTA COLLINS: No, commercial-in-confidence is not an answer in itself.

Senator Scullion: It says nowhere in the standing orders that that is not a part of the consideration. You are asserting—and I have yet to be quoted precedents in that area—that that has over time not been selected. We are saying there are two particular areas. That is why the officer is not going to answer the question.

Senator JACINTA COLLINS: Senator Scullion, you have been in the Senate long enough to understand that the public interest immunity order was established to deal with straightforward commercial-in-confidence claims. The Senate has determined that that response in itself is not sufficient—

Senator Scullion: And we have provided—

Senator JACINTA COLLINS: so continuing to assert it does not help the argument.

Senator Scullion: I am simply—

Senator JACINTA COLLINS: I am prepared to address other concerns around harm, and you have raised one.

Senator Scullion: That is correct.

Senator JACINTA COLLINS: As far as I am aware, you have taken on notice to address others, if any, further to Senator Macdonald's questions.

Senator Scullion: Just in terms of clarification, we are not taking that on notice. We have said that the area of potential harm to the Commonwealth in terms of potential exposure with litigation is sufficient, according to your own definitions. And we will not be providing the information, on that basis.

Senator JACINTA COLLINS: Well, that is a bit more helpful than just reasserting commercial-in-confidence.

CHAIR: Thank you, Senator Collins; and it was a nice debate. But I am satisfied from the answers you have given, Ms Fitzgerald, that you have indicated the nature of the public interest immunity that you have claimed—to me—and I am satisfied that that is an appropriate claim. In the limited time that I have left—because it has been taken by other matters—I would like to ask about the Royal Commission into the Home Insulation Program. What is the status of that? Has it been finalised?

Ms Fitzgerald : Senator, yes. The royal commission itself has been wound up, and my understanding is that the matters arising as a consequence of the royal commission are now being progressed, primarily by the Department of Industry. So they might be best placed in order to answer any specific questions that you might have about the redress issues that arose.

CHAIR: So I is it the case that I cannot ask the department whether there are criminal prosecutions flowing, or whether the AFP is doing them, or who is?

Ms Fitzgerald : I do not have that information, Senator. Obviously, as the department has administrative responsibility for royal commissions, when the royal commission was on foot it was certainly something that we were ultimately responsible for, despite the independence of the royal commission. We obviously stand ready to provide whatever assistance, to industry or to any other bodies who may well want it, now that the royal commission has been wound up.

CHAIR: Yes. I accept that. My question is wider, and perhaps to Mr Moraitis; either as to the department's role or as to the role of the Australian Federal Police and the DPP—although I suspect we do not have the right people here. Mr Moraitis, do you from your own knowledge know if anything is happening in that regard?

Mr Moraitis : Senator, no. As Ms Fitzgerald said, the industry department is taking over the implementation of the outcomes of the commission, and I have not had any discussions with either the AFP or the DPP with respect to any that.

CHAIR: Okay.

Mr Moraitis : It has been outside the remit of my consideration.

CHAIR: Okay, thank you. But, from your department's point of view, Ms Fitzgerald, the matter has finished—all the bills are paid, and so on?

Ms Fitzgerald : As far as I am aware, yes. The royal commission has been wound up. Apart from—as I mentioned—we will of course provide whatever advice or assistance we are requested to in the period from here on in. As far as I am aware, there are no outstanding matters. But I will confirm that and, if in fact there are any outstanding matters from our department's point of view, I will let you know.

CHAIR: Okay. You have just told me about the situation with any prosecutions arising from the Home Insulation Program. Does the same answer apply to some of the quite horrendous and very frightening evidence that has been given in the Royal Commission into Trade Union Governance and Corruption? Will it be again for some other department to consider prosecutions?

Ms Fitzgerald : Yes. Senator, I might defer to Mr Ney, who is at the end of the table, who is the commander of the police task force in this matter. Obviously, the department would not be in a position to comment on matters that are currently before the trade union royal commission. I am not entirely sure whether Mr Ney could either, quite frankly, but I would defer to him in that regard.

Senator O'SULLIVAN: Except that published in the interim—

Ms Fitzgerald : Yes, of course.

CHAIR: Mr Ney, are you able to help us with what happens now with some of the evidence? I am conscious from other inquiries this committee has done that the evidence given to the royal commission ipso facto cannot be used to mount prosecutions: you have to go and do your own investigation again, but with an understanding of what has been said at the royal commission. Is that the case?

Mr Ney : That is correct, Senator. The matters that have been identified in the interim report of the royal commission have, in various ways, been forwarded; either to DPPs around the country—so to public prosecutions departments or directors of public prosecution or offices of public prosecution—or, where appropriate, to the appropriate agency that might investigate the criminal matters arising out of the report. For instance, state-based crime would go off to the variety of state police services across the country or to the fair work building commission, or to other agencies that have primacy for the investigation of those matters.

CHAIR: Are there any instances where federal police or the federal Director of Public Prosecutions might be involved?

Mr Ney : There is one particular matter arising out of the interim report which relates to alleged perjuries before the commissioner. That is being dealt with by—

Senator JACINTA COLLINS: Sorry, I did not quite hear that. Alleged perjuries?

Mr Ney : Alleged perjuries that are being dealt with by the AFP and, in turn, the DPP.

CHAIR: Obviously, I will not ask you anything further on that. When is the projected finish date of this commission?

Ms Fitzgerald : The letters patent, as they currently stand, run till 31 December this year. That means that, in order to meet those letters patent, Commissioner Heydon will need to deliver a report by that date—as he did last year. He delivered his interim report on 15 December.

CHAIR: I have not caught up with it, but can you tell me whether either the commissioner or the Attorney or anyone else has made any public statement about when they expect it might be?

Ms Fitzgerald : Not as far as I am aware. The letters patent run until the end of the year so, unless they were somewhat extended after that—and there has been no request that I am aware of, nor any public statements to that effect—there is nothing I am aware of to suggest at this stage that the royal commission would go beyond that date.

CHAIR: But no statement has been made?

Ms Fitzgerald : No, I am not aware of any statement made by the government.

CHAIR: Right. I am sorry, Senator O'Sullivan—I will come back to you after I go to Senator Collins, next. Just briefly, the royal commission into institutional responses for the child sex thing: where is that at?

Ms Fitzgerald : The child abuse royal commission, if I can use that shorthand, has also been extended. At the moment they are holding hearings in Sydney. I would perhaps be best to hand over to the CEO of the royal commission if you wanted detail about that. Sorry, I am not entirely sure what information you—

CHAIR: I am just wondering if there is any indication of when it might conclude. On notice can you give me, unless you have it with you, indications of the cost of that commission to date.

Mr Reed : The letters patent indicate that the final report is to be provided to the government by 15 December 2017. Currently the overall budget for the royal commission to the end of the royal commission is $372 million.

CHAIR: That is the estimate; can you tell me how much has actually been spent in cash money to date?

Mr Reed : Actual expenditure to 28 February 2015 is $137.5 million.

CHAIR: I hear the letters patent run through to the end of 2017, but is there any other indication of whether it will be finished before then?

Mr Reed : At this stage, no. We are working to that date.

CHAIR: Can you give me on notice some detail about the $137.5 million spent to date. I do not mean fine detail but just broad details about how much was for legal fees and how much was for travel expenses and rent.

Senator JACINTA COLLINS: I will go back to the issues around the costs for the trade union royal commission. I will first indicate, though, that I reserve my rights under the procedural orders of continuing effect with relation to public interest immunity. That is No. 10 that I referred you to. The department originally took a question on notice. Senator Macdonald asked some subsequent questions. He indicated that he was satisfied with your response to those questions. The minister then said, 'No, we are not taking that on notice.' I should make it very clear to you that the standing order was in fact drafted by Senator Cormann in a way which means that the Chair's satisfaction is not determinative and I would reserve my rights to that effect. But let's move on and see how much information you can actually provide around the commercial-in-confidence aspect.

Senator Scullion: On the reason for not taking a question, to say that this is a public interest issue is only available to me and not to the officers, which is why I provided some clarity around that.

Senator JACINTA COLLINS: Are you saying that the officers incorrectly said that they would take it on notice—

Senator Scullion: No. They are not able, under the standing orders, to have any discretion in that regard. It is only available to a minister.

Senator JACINTA COLLINS: As I have indicated to you, I have reserved my rights. I will evaluate the response and follow the standing order, as drafted by Senator Cormann, accordingly.

CHAIR: I am not sure—

Senator JACINTA COLLINS: And, in fact, it was voted for by you, Senator Macdonald.

CHAIR: Was Senator Cormann noted as a lawyer? I thought he had spent most of his time in the service of the people of Australia. That is no reflection on Senator Cormann's legal knowledge, but I just do not know that saying that it is his takes the matter any further.

Senator JACINTA COLLINS: Let's just say that the government might want to consider the quality of their response to a public interest immunity claim and not simply turn up to estimates with a commercial-in-confidence assertion.

CHAIR: I have more regard for Senator Cormann's economic and financial ability.

Senator JACINTA COLLINS: Anyway, we digress.

CHAIR: We do.

Senator Scullion: Just to correct the record, I made it clear that the claim of public interest immunity is not available to the officers. So you cannot ask them questions—

Senator JACINTA COLLINS: I have not.

Senator Scullion: I am saying that the public interest immunity claim is available to the minister. I want to clarify for the record that it is available in two areas. One is the commercial-in-confidence area. There is an element of that that exposes the Commonwealth to financial difficulty. That is the commercial-in-confidence element. The other is that it exposes it potentially to litigation. That is the second thing I was bringing forward. I have made a public interest immunity claim, and they are the two reasons for that.

Senator JACINTA COLLINS: And I have reserved my rights as to the degree to which I am satisfied with that claim.

Senator Scullion: That is usually a matter for the Clerk of the Senate.

Senator JACINTA COLLINS: It is not usually a matter for the Clerk of the Senate; it is a matter for a senator, Senator Scullion.

Senator Scullion: It usually is in these matters. As you indicated earlier, I have been here for a while. For those matters of standing orders—

Senator JACINTA COLLINS: Yes, and it is good to see you have now taken some advice.

Senator Scullion: it seems to me that, if there are some issues around that, what you normally do is seek clarification from the Clerk of the Senate. So it is not a matter for a senator. This is a matter where I have claimed public interest immunity. If you think that public interest immunity claim is insufficient you should check with the Clerk of the Senate. That is the advice I am providing you.

Senator JACINTA COLLINS: I can seek advice from the Clerk of the Senate, but it is the Senate that determines these things. Anyway, we digress. Let's move on to the issues of substance here. Were the contracts that I referred to previously that you have indicated maximum allowable amounts—is that an acceptable phrase?—published on AusTender within 42 days as required by the Commonwealth procurement rules?

Ms Fitzgerald : I would need to confirm that.

Senator JACINTA COLLINS: If the answer is not, could you also please indicate why not?

Ms Fitzgerald : Certainly.

Senator JACINTA COLLINS: What services will Minter Ellison be providing in respect of their $17 million maximum potential fees?

Ms Fitzgerald : Minter Ellison are the solicitors assisting the trade union royal commission. I am happy to go into detail about what that role entails if you would like me to.

Senator JACINTA COLLINS: Yes, please.

Ms Fitzgerald : They are providing the solicitor support to the counsel assisting and to the royal commissioner in the meeting of the requirements of the terms of reference in relation to the royal commission. They were engaged at the beginning of the royal commission and worked with counsel assisting and the royal commissioner, and indeed, from my own experience, the office of the royal commission very successfully throughout the course of 2014. Their contract was extended with the extension of the trade union royal commission.

Senator JACINTA COLLINS: Did the extension of that contract involve a recalibration of the maximum amount?

Ms Fitzgerald : I am not entirely sure what your question is. Sorry.

Senator JACINTA COLLINS: What has been put on AusTender here refers to the $17 million. Was there a different amount that was then adjusted because of the extension of the contract?

Ms Fitzgerald : To my knowledge, there have been three different adjustments to the figure. The first figure that was there was only in relation to the 2013-14 financial year. The figure was subsequently adjusted to take into account the 2014-15 financial year. Obviously, with the extension of the trade union royal commission and thereby the extension of the contract in relation to Minter Ellison, another extension of that AusTender contract documentation was required.

Senator JACINTA COLLINS: And this is the final one, from what you were saying earlier?

Ms Fitzgerald : Unless, of course, the figures need to be adjusted.

Senator JACINTA COLLINS: What were the earlier figures?

Ms Fitzgerald : I do not have those figures at my fingertips. I would be able to get them. They are publicly available on the AusTender website too. From my recollection—and it is only my recollection—the initial figure was around $2 million. The subsequent figure was around $7 million. And I think the third figure is around $16 million. I am happy to confirm those figures if you would like me to.

Senator JACINTA COLLINS: What we are curious about is whether the adjustments were solely with respect to the extensions or with a change in the nature of the contract as well?

Ms Fitzgerald : Obviously I would not want to speak to the specific terms of the contract, for the same reasons.

Senator JACINTA COLLINS: In terms of the nature of the services.

Ms Fitzgerald : No. The nature of the services being provided by Minter Ellison is the same in 2015 as it was in 2014.

Senator JACINTA COLLINS: So in 2013-14 it was $2 million.

Ms Fitzgerald : The maximum allowable amount that originally went onto AusTender was approximately $2 million. As I said, I am rounding. These are the figures in my head.

Senator JACINTA COLLINS: I understand. It then grew to $7 million.

Ms Fitzgerald : That was taking into account the 2014-15 financial year and the projected finish date of the royal commission being 31 December 2014.

Senator JACINTA COLLINS: And then it grew to $16-something million.

Ms Fitzgerald : Which takes into account the entire 2015 calendar year.

Senator JACINTA COLLINS: If you go back to the original $2 million, with some adjustment in terms of inflation or whatever other CPI indicator you want to use, how does $2 million grow to $16 million?

Ms Fitzgerald : I am happy to go through it again. The original estimate only related to the 2013-14 financial year.

Senator JACINTA COLLINS: Okay. So we say $2 million. We add another $2 million for the next financial year, or inflate it to $3 million if you like, and then we add another $2 million, and inflate it to $4 million if you like. It still brings you nowhere near $16 million.

Ms Fitzgerald : The royal commission started in March, so it started in the final quarter of the 2013-14 financial year. Obviously, there was a preliminary set-up phase, if I might describe it as that. You might recall that a ceremonial hearing today was held in April, if I might describe it as that. So the original estimate that I have just mentioned was for the period primarily from April to June plus maybe a week or so, 2013-14. The second figure, the $7 million figure, rounded, was for a nine-month period. So the $16 million figure is for a 21-month period.

Senator JACINTA COLLINS: So we are talking about, roughly, $2 million per quarter?

Ms Fitzgerald : As I said in relation to your initial question, these are maximum allowable amounts that can be paid under the contract. I want to be clear that I am not saying that that is what Minter Ellison has been paid, for the reasons that I set out earlier.

Senator JACINTA COLLINS: When will we potentially know what proportion of that potential maximum figure is utilised?

Ms Fitzgerald : I certainly undertook earlier to provide you some figures around legal expenditure to date. Is that what you are getting at?

Senator JACINTA COLLINS: The point I am getting at is this: can you see how the average Australian might think spending $17 million on solicitors' fees in this matter is obscene?

Ms Fitzgerald : I could not comment on that. It would not be appropriate for me to do that.

Senator JACINTA COLLINS: What I am trying to get to is what public accountability is there in the first place? I do not want to revisit a public interest immunity aspect to this. At the moment, I am just trying to ascertain how much information will ever be publicly available and when we might have that information. On the face of it, almost $17 million for solicitors in this case, and at this point in time you are saying it is a maximum but you cannot tell me when we will ever understand what proportion of that maximum is spent.

Ms Fitzgerald : I can only go back to my earlier answer that, in this instance, in relation to this royal commission, the Commonwealth followed the usual rules that it follows in relation to the procurement of legal services and that includes obviously getting the best value for money in relation to the particular matter at hand. I am not entirely sure that I could go beyond that at this point.

CHAIR: But you will be able to, as someone has just given me in relation to the child abuse, give me what has been spent and the broad titles of amounts on legal fees.

Ms Fitzgerald : Precisely. Yes and I think I undertook to do that earlier in relation to the broad category of legal expenditure.

Senator JACINTA COLLINS: The question that we have not quite pinned down is: when?

Ms Fitzgerald : I am happy to take on notice the expenditure to date in relation to legal expenditure.

Senator JACINTA COLLINS: Okay, so during the period of notice for these considerations?

Ms Fitzgerald : Yes.

Senator JACINTA COLLINS: At the moment, the maximum forecast, in respect of Minter Ellison's contribution, is $2 million for roughly two to three months work. Let's go to the costs in relation to—

Senator O'SULLIVAN: Can I seek a point of clarification?

CHAIR: A point of order?

Senator O'SULLIVAN: No, a point of clarification from the witness.

Senator JACINTA COLLINS: You will have your opportunity for questions IN just a moment.

Senator O'SULLIVAN: You are taking a line of questioning that is in conflict, in my view, with an answer you have been given previously and have left it hanging.

Senator JACINTA COLLINS: You will have your opportunity to make that point when we get to your time.

CHAIR: In one minute 50, you will have your chance, Senator, so keep the thought in mind.

Senator JACINTA COLLINS: What services will senior counsel assisting Jeremy Stoljer provide in exchange for his $3.4 million maximum fees?

Ms Fitzgerald : Noting of course my earlier answer, I would say that the role of senior counsel assisting is obviously a critical role in any royal commission. Senior counsel assisting's job is to lead the evidence-gathering process to make submissions to the royal commission at the conclusion of a phase, a period of time or a bracket of hearings, depending on how the royal commission chooses to run his or her royal commission. So that includes, obviously, looking at investigative material; working with commandant A, as the commander of the police task force;, interviewing witnesses; gathering information; being the person in the hearing who primarily examines witnesses; and then preparing written submissions for the royal commissioner, as I said, at the conclusion of a particular block of hearings or at the conclusion of the royal commission. It is, from my experience and observation, an incredibly demanding task that requires a high level of skill and acumen. Mr Stoljar was, to my recollection, on his feet in the royal commission every day that it had hearings last year, which is a very demanding and taxing role, as I mentioned.

Senator JACINTA COLLINS: Can you take me to a comparable cost.

Ms Fitzgerald : I am not sure what that means, sorry.

Senator JACINTA COLLINS: A task that the Commonwealth has paid similar fees for that was comparatively as onerous as you are just describing.

Ms Fitzgerald : I do not know if I could. I am not entirely sure where you want me to go with an answer to that. You asked me to describe the task at hand in this particular instance.

Senator JACINTA COLLINS: Can you can describe to me a case where the Commonwealth has paid funds, adjusted accordingly for the CPI or whatever you think is relevant, for a similar task with respect to senior counsel assisting.

Ms Fitzgerald : The only thing I think I could helpfully say at this point would be that the Commonwealth appoints, via the Attorney-General, senior counsel assisting in all royal commissions that it establishes.

Senator JACINTA COLLINS: If you could give us comparable costs for the senior counsel assisting in other matters, then we can make our own judgement of whether we think they were as onerous or less onerous.

Ms Fitzgerald : I think I would have to come back to you.

CHAIR: I think the question would be: could you tell us what is paid to senior counsel in the other two royal commissions.

Ms Fitzgerald : I think that is the same point as the earlier one I made in response to Senator Collins—that is, that the rates of pay to counsel are not generally disclosed.

CHAIR: You could give us a broader figure for legal fees. Senator O'Sullivan?

Senator O'SULLIVAN: The point I was hoping to make a moment ago was in relation to this assertion that Minter Ellison are paid $2 million. I know it is not as simple as that. I imagine this has an oscillating effect. s it fair to describe it then that they have received a head contract to do certain things? Let us accept Senator Collins's reference to $2 million a quarter, I think it was. They would be sourcing services beyond themselves to provide to this royal commission that might not be necessarily an employee or a contractor of Minter Ellison. Is that correct?

Ms Fitzgerald : I would not want to go to the specific terms of the contract with Minter Ellison, for similar reasons. I can say to you that, generally speaking, the office of the royal commission established separate contracts with separate contractors rather than working through Minter Ellison in relation to the provisions of say non-legal services.

Senator O'SULLIVAN: My question is specifically about legal services. Other than Minter Ellison, would there be a direct payment relationship between the Commonwealth and a legal adviser that did not come through the arrangements with Minter Ellison?

Ms Fitzgerald : The royal commission had cause during the course of last year to engage AGS in relation to matters that were tied work. Apart from that—no. Essentially, Minter Ellison provided solicitors for the royal commission, and other contractors such as forensic accountants were sourced via separate contracts with separate contractors.

Senator O'SULLIVAN: The answers to some of the very specific questions of Senator Collins might not be within the capacity of the Commonwealth to be able to answer them.

Ms Fitzgerald : Perhaps not.

Senator O'SULLIVAN: Thank you for that. Commander Ney, I have some questions for you.

CHAIR: Senator O'Sullivan, I regret to interrupt you again after a couple of minutes.

Senator O'SULLIVAN: You will never offend me in calling the lunch break.

CHAIR: We are scheduled to go to lunch now. We will adjourn, and when we come back to Attorney-General's, if we do this afternoon after the Human Rights Commission, you will be in continuation. You have twelve minutes left.

Committee adjourned at 12:30