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Finance and Public Administration Legislation Committee
08/02/2016
Estimates
PRIME MINISTER AND CABINET PORTFOLIO
Department of the Prime Minister and Cabinet

Department of the Prime Minister and Cabinet

CHAIR: We will recommence proceedings for the Senate Finance and Public Administration Legislation Committee additional estimates program. We are now going to commence with the Department of the Prime Minister and Cabinet. I welcome Senator the Hon. James McGrath, who is representing Senator the Hon. George Brandis, who is representing the Prime Minister, and officers of the Department of the Prime Minister and Cabinet. We will be examining additional estimates outcome 1 of the department. I note that outcome 2 of the department, relating to Indigenous affairs, will be examined on Friday. I remind officers that the Senate has resolved there are no areas in connection with the expenditure of public funds where any person has the discretion to withhold details or explanations from the parliament or its committees, unless the parliament has expressly provided otherwise.

The Senate has resolved also that an officer of the department of the Commonwealth should not be asked to give opinions on matters of policy, and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. I particularly draw the attention of witnesses to an order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised.

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 specifically reminded that a statement that information or a document is confidential or consists of advice to government is not a statement that meets requirements in the 2009 order. Instead, witnesses are required to provide some specific indication of the harm to the public interest that could result from the disclosure of the information or the document. The committee has set 1 April 2016 as the date by which answers to questions on notice are to be returned. Minister, do you wish to make an opening statement?

Senator McGrath: No.

CHAIR: Ms Cross, do you wish to make an opening statement?

Ms Cross : Yes thank you, Chair. Since the last hearings Dr Martin Parkinson PSM commenced as secretary of the department on 23 January 2016. The appointment of Dr Parkinson followed the resignation of Mr Michael Thawley AO, which was effective on 22 January 2016. For the record I would like to echo the words of the Prime Minister and record the department's appreciation of Mr Thawley's support as our secretary and his leadership of the Australian Public Service. Another departure from the department was Dr Heather Smith PSM, formerly deputy secretary, who commenced as secretary of the Department of Communications and the Arts on 25 January 2016. I have an updated organisational chart for the committee, which I will table if the committee desires.

CHAIR: Thank you. Ms Kelly, do you wish to make an opening statement?

Ms E Kelly : No, Chair.

Senator WONG: There was a set of questions this afternoon about the reshuffle and the revocation of the commission of those who were not part of the ministry any more. Is it usual practice for ministers who depart the ministry as a result of a reshuffle to submit a letter of resignation to the Prime Minister?

Ms E Kelly : I am informed that recent practice does vary. It can occur that a letter can be submitted to the Prime Minister or to the Governor-General or to both but that does not always occur—

Senator WONG: Leaving aside Mr Turnbull's recent reshuffle and, as has been written about publicly, Mr Crean, what are the other variations to the practice of ministers resigning in such circumstances?

Ms E Kelly : My understanding is that ministers may submit a letter of resignation to the Prime Minister, to the Governor-General or to both, or in other instances ministers can resign and take no further action, and the Prime Minister then advises the Governor-General to revoke the appointment.

Senator WONG: Who can answer questions rather than you just saying what you have been advised?

Ms E Kelly : We have examined recent practice. There are times when letters of resignation are provided. There are times when letters of resignation may be provided to the Prime Minister and not be forwarded to the department—we cannot eliminate that possibility, as well— and there are other times when no letter is provided and the appointment is revoked.

Senator WONG: When you say 'recent practice', what is your definition of 'recent practice?'

Ms E Kelly : We have looked for the periods of the Rudd-Gillard government and the Abbott-Turnbull government.

Senator WONG: Leaving aside the most recent reshuffle—when Mr Turnbull became Prime Minister—on how many occasions do you say over that period that no resignation letter was received by the Prime Minister?

Ms E Kelly : I will have to take that on notice. We have examined it since you have raised the issue this afternoon and that was what our assessment of the practice is, but in terms of the exact numbers—

Senator WONG: If you have examined it this afternoon, then give me the numbers.

Ms E Kelly : Unfortunately I do not have those numbers, but I can take that on notice—

Senator WONG: Ms Kelly, you have just given evidence where you give me the assertion—I would like to know the facts underlying the assertion.

Ms E Kelly : We have looked at a number of instances in relation to the Rudd-Gillard government and have found that there are instances where there are resignations and there are instances where there—

Senator WONG: How many instances did you find in your examination, since I asked this question this afternoon, that there was there no resignation?

Ms E Kelly : I do not want to give evidence that is incorrect.

Senator WONG: You have given evidence in an assertion form, I want to know the factual basis of your evidence.

Ms E Kelly : And you have asked for exact numbers, Senator, and I have said that I am not comfortable giving exact numbers.

Senator WONG: But you are comfortable making the assertion.

Ms E Kelly : On the basis of examining a number of practices, but I am not comfortable giving exact numbers. I am happy to take the question on notice and we can do a complete assessment of every resignation—

Senator WONG: Hang on, that is not particularly cooperative. Your evidence just now—and Chair, I am going to press this—is that you have assessed this since I asked the question of the Office of the Official Secretary of the Governor-General, and for the purposes that that was sufficient for the purposes of you giving that broad assertion. I am now asking how many times was a resignation not received, in terms of what you have done this afternoon, and you want to take the question on notice.

Ms E Kelly : In an effort to assist the committee, we have looked at a number of instances from that period of government and I have made my statement on the basis of that examination. If you want exact numbers then I am not going to risk misleading the committee and I will have to take on notice the question of exact numbers and we will examine every resignation.

CHAIR: That is entirely reasonable.

Senator WONG: Can we just be clear then: when you say 'a number of instances', you have not done a full check of all the ministerial changes over a period of time, you have just picked a few—is that correct?

Ms E Kelly : That is correct. That was what we were able to do in the time available and to assist the committee.

Senator WONG: I am sure it was not your intention but the way you made the assertion did not make it clear that that evidence was based on an incomplete assessment of the history.

Ms E Kelly : If that was the case, I apologise, and I correct that evidence. It was done on the basis of a sample in order to assist the committee.

Senator WONG: Sure, that is fine. If you had said that then I would have said, 'What is the sample' et cetera, but if you want to take it on notice then I would appreciate that.

Senator CONROY: I want to ask you questions about the latest ministerial scandal that is engulfing the Turnbull government, and my questions relate to—

CHAIR: Senator Conroy, earlier today you said that you did not really want to be inflammatory and that you wanted to use very modest language, I would ask you—

Senator CONROY: I do not think I have ever said any such thing—

CHAIR: Maybe I cheated and looked at the Hansard records—

Senator CONROY: I really do not think it was me that you heard saying that.

CHAIR: Okay, I am saying that whoever said that then you should take a leaf out of their book, choose your phraseology carefully, because I do not think we need to cause any disruption as time is of the essence.

Senator CONROY: I appreciate that. Assistant minister McGrath is a combustible character and I have dealt with him before, so I appreciate your sensitivity—

Senator McGRATH: That is a bit of the pot calling the kettle black coming from you, Senator Conroy.

CHAIR: Alright, we have limited time.

Senator CONROY: My questions to relate to the then Assistant Minister for Defence, Stuart Robert, travelling to China to deliver a speech to celebrate a deal struck by Nimrod Resources with Chinese government-owned Minmetals—are you familiar with that? Who should I be asking my questions to?

Ms E Kelly : That would be me.

Senator CONROY: Thank you. Details of a trip were reported in today's Herald Sun. I understand that the Prime Minister has referred it for investigation by, notionally, the secretary of the department, Mr Parkinson—is that correct?

Ms E Kelly : The Prime Minister has requested the secretary's advice under the Statement of Ministerial Standards.

Senator CONROY: So are you doing the investigation or is Mr Parkinson?

Ms E Kelly : We are preparing advice at the Prime Minister's request, as is provided for under the ministerial standards.

Senator CONROY: So you and your section are dealing with it, and then you will pass it on to the secretary, and he will pass it on.

Ms E Kelly : We have only just received the request, so we will respond to the request as soon as we possibly can.

Senator CONROY: But my point is: Mr Parkinson is not personally doing the investigation; it is passed over to someone in the department—yourself perhaps?

Ms E Kelly : Mr Parkinson will sign the advice to the Prime Minister, but we will assist him in preparing that advice.

Senator WONG: When was the request?

Senator CONROY: Recently, she said.

Ms E Kelly : This afternoon, is my understanding.

Senator WONG: Was that made of you or of Dr Parkinson?

Ms E Kelly : The request was made to Dr Parkinson.

Senator WONG: Before or after question time—do you know?

Ms E Kelly : It was before I left to come up here. I am sorry I am not able to give an exact time, but I can check that and come back to you.

Senator CONROY: I know you have indicated that you have been here, so you probably have not had a chance to scan the Herald Sun yet today. Have you had a chance to have a preliminary examination of the newspaper reports?

Ms E Kelly : I have seen some of the newspaper reports, but you can probably understand that I would not be expressing a view or providing advice on the basis of newspaper reports.

Senator CONROY: I am sure. Who will interview Minister Robert?

Ms E Kelly : As I said, we have only just received the request. I have not yet had the opportunity to discuss it with Dr Parkinson, or to form a view of how he will prepare his advice. So those are matters that I will discuss with Dr Parkinson at the conclusion of these proceedings

Senator CONROY: I have had many experiences in government. Fortunately, I have never had to be investigated by the secretary of the department, so I am unfamiliar with what the processes would normally be. I am hoping you could explain what the processes would be. I assume at some point a conversation would have to take place with Minister Robert.

Ms E Kelly : I do not think there is a usual process. The secretary's advice is sought—

Senator CONROY: This is a third in a month—just over a month.

Ms E Kelly : The secretary's advice is sought. The secretary then determines the appropriate way to inform himself in order to provide that advice. Dr Parkinson has been in his role for some two weeks. He has not yet dealt with one of these requests, so I am sure you will understand if I would like to confer with Dr Parkinson about how he will proceed in preparing his advice.

Senator CONROY: How long have you been in your position as deputy secretary, Ms Kelly?

Ms E Kelly : Two years.

Senator CONROY: So you would have been privy to what has gone on recently with ministers Brough and Briggs?

Ms E Kelly : I have provided advice in relation to this area over that period.

Senator CONROY: Did yourself or the outgoing secretary interview the ministers in question at any stage—to seek information?

Ms E Kelly : I could not definitively speak for Mr Thawley. But, as I said, there is not a usual procedure. There is no standard procedure. Each request is different, each request is considered on its own circumstances. The secretary at the time—and, of course, Dr Watt also provided advice under the Statement of Ministerial Standards during his period. On each occasion, the secretary determines the appropriate way to proceed.

Senator CONROY: Would it be unusual to conduct an inquiry without speaking to the minister that was actually the subject of the inquiry? Could you ascertain the facts without contact with the minister involved?

Ms E Kelly : That would depend upon the nature of the inquiry. Again, every instance is judged on its circumstances. There is not one standard approach. It would be very much a case of the secretary making an assessment on the particular circumstances before him.

Senator CONROY: Would you seek information in writing rather than in an interview in person? I am not trying be pejorative; I am actually just trying to understand how this investigation will progress to get to the bottom of the facts.

Ms E Kelly : Again, it will be a matter for the secretary to determine how, in this particular instance, he would like to inform himself.

Senator CONROY: Is Dr Parkinson available for the committee? I am happy to come back in an hour if Dr Parkinson is available?

Ms E Kelly : I am not aware of Dr Parkinson's availability.

CHAIR: Senator Conroy, the reference has only just been passed on to the secretary. I am sure it is under consideration now.

Senator CONROY: I am just seeing if he was available to come and have a discussion with us, given Ms Kelly has deferred each question back to the secretary, and he is not present. So I was just wondering if he was available.

Ms E Kelly : As I said, I do not know Dr Parkinson's availability, but Dr Parkinson is awaiting assistance, which we will do when he gets an opportunity, to consider the request and discuss the request with the relevant officers—as we will do as soon as we are able to. As the chair has pointed out, we have only just received the request.

Senator CONROY: I will go to the article. The Herald Sunreported that, according to Minmetals website, Mr Robert spoke—and I am quoting the website—on behalf of the Department of Defence. Are you aware of that claim?

Ms E Kelly : I have seen the particular website that you are referring to. Again, I do not know anything of the circumstances or in relation to the creation of that website or the veracity of its claims, but they would obviously be matters that Dr Parkinson will consider.

Senator CONROY: So you have been to the website and looked at it? You have just indicated you have seen the website.

Ms E Kelly : I have seen a printout of a screen shot of the website.

Senator CONROY: The Chinese version or the English version?

Ms E Kelly : The English version.

Senator CONROY: Or are you lucky enough to read Chinese?

Ms E Kelly : Sadly, I am not lucky enough to read Chinese, and it was the English version.

CHAIR: Sorry, Ms Kelly, you are referring to the Minmetals website versus the Herald Sun. I thought you were referring to the—

Senator CONROY: No. Ms Kelly indicated she had looked at the website.

CHAIR: But you mentioned the Herald Sunthat you were reading from—that is all.

Senator CONROY: No, I was—

CHAIR: As long as we are clear about what we are talking about.

Senator CONROY: No, I just said the Herald Sunreported. Any website I was referring to was that of Minmetal, which Ms Kelly indicated she had now—

CHAIR: Right, so Ms Kelly you have seen the Minmetal website?

Ms E Kelly : I have seen both, Chair.

CHAIR: Okay.

Ms E Kelly : I have obviously not had the opportunity to give them full consideration but I have seen both.

Senator CONROY: So you have seen the claim that he spoke on behalf of the Australian Department of Defence from the website?

Ms E Kelly : Yes. But, as I said, I do not know the circumstances of the creation of that website or the veracity of the claims made in it.

Senator CONROY: I am in no position to comment either. The claim on the website also is that he presented a senior Communist Party official a medal bestowed by the Prime Minister—I have never heard of a prime ministerial medal. Have you heard of a prime ministerial medal?

Ms E Kelly : No, Senator Conroy.

Senator CONROY: Would you know, given you have been there for a while?

Ms E Kelly : Yes, I would.

Senator CONROY: Are you familiar with such a thing?

Ms E Kelly : No, I am not familiar with such a thing.

Senator CONROY: He awarded a letter of appointment to a Chinese official. Are you familiar with the concept of a letter of appointment?

Ms E Kelly : I do not know what that reference in the article refers to.

Senator CONROY: Would you be seeking to clarify with Minister Robert what a letter of appointment is?

Ms E Kelly : As I said, Senator Conroy, when we have the opportunity to consider the materials and discuss with Dr Parkinson the way he wishes to proceed, then we will determine what we need to do in order to inform him to provide his advice.

Senator CONROY: But surely you could not possibly conduct an investigation without asking Minister Robert what was the piece of paper that Minmetals purport to be a letter of appointment. Surely you could not actually conduct a serious investigation, if you did not ask that question of the minster, given he is the only person who would be able to answer that question.

Ms E Kelly : I can only repeat my previous answer: when I have the opportunity to discuss with Dr Parkinson how he wishes to proceed to inform himself to prepare his advice to the Prime Minister, then we will consider all of those matters. However, I am not in a position to comment on those until that has taken place.

Senator CONROY: I am simply saying that it would be quite an extraordinary process were you not to seek clarification of what that was.

Ms E Kelly : I am happy to note your view but, as I said, I am not in a position to comment on the way in which Dr Parkinson will inform himself to prepare his advice.

Senator CONROY: Now the ceremony was attended by Mr Paul Marks, the executive chairman of Nimrod Resources, who, as you would have read, Mr Robert describes as a close mate. Are you familiar with that claim?

Ms E Kelly : As I have mentioned, I have looked at the articles that you are referring to.

Senator CONROY: Are you aware that Mr Marks and his associated companies have donated $2.6 million to the Liberal Party in the last two years alone?

Ms E Kelly : That is not something that I am aware of in my role but, as I mentioned, I have seen the newspaper article that you are referring to.

Senator CONROY: I can refer the links to you to verify that number, if you would like, to save you time.

Ms E Kelly : Senator Conroy, as I said, those matters will be considered in the course of preparing the advice. They are not matters that I concerned myself with prior to this event.

Senator CONROY: Mr Robert has reportedly invested in a number of Mr Mark's companies. Are you familiar with that? Have you had a look at Mr Robert's declaration of pecuniary interests?

Ms E Kelly : I think we have previously discussed in this committee that all ministers are subject to the statement of ministerial standards and have provided details of their interests to the Prime Minister, initially Mr Abbott and then Mr Turnbull. So, in the course of that, all of the ministers' interests have been examined.

Senator CONROY: I assume that they are the same as on his public pecuniary declaration.

Ms E Kelly : We provided advice based on the material that is provided to us by the Prime Minister that is submitted to him.

Senator CONROY: So you do not look at the declarations that are done to the House?

Ms E Kelly : The Prime Minister provides material to the secretary and seeks his advice based on that material and we provide that advice.

Senator CONROY: I am presuming you mean the Prime Minister's office and the Prime Minister is sitting there scrolling through the paperwork on Minister Roberts. I am assuming his office provide that for you.

Ms E Kelly : Yes, we certainly work through the Prime Minister's office.

Senator CONROY: Former Prime Minister Mr Tony Abbott previously took his taxpayer funded VIP jet to travel to Mr Marks' birthday party at a Melbourne golf course. Are you familiar with that?

Ms E Kelly : Questions of parliamentary entitlements are matters for the Department of Finance.

Senator CONROY: I was asking whether—

CHAIR: I understand that he was undertaking to represent the Office of the Prime Minister at a particular event. That was not specifically for the—

Senator CONROY: I am just asking whether Ms Kelly is aware of that particular—

CHAIR: But you characterised it as the trip was for a specific purpose, which it was not. It was core prime ministerial.

Senator CONROY: I think the Prime Minister came back to caucus and boasted that he had organised a quick visit to—

CHAIR: We do not have caucuses.

Senator CONROY: A party room meeting.

CHAIR: And it does not leak like some.

Senator CONROY: I think this one is leaked a lot, because I have a verbatim transcript of what was said.

CHAIR: Do not believe all the media reports.

Senator CONROY: The Prime Minister upon arriving late to the party room meeting indicated that he had organised a quick visit to a hospital, I think it was, to cover the fact that he had been to the birthday party.

CHAIR: Move along.

Senator Smith interjecting

Senator CONROY: I think I am accurately reporting what was leaked from the party room.

CHAIR: There is nothing to see here; move along.

Senator McGrath: Don't believe leakers.

Senator CONROY: If I believed leakers you would be out of a job.

Senator McGrath: I have never leaked.

Senator CONROY: Ms Kelly, are you familiar with that incident?

Ms E Kelly : As I explained, matters of parliamentary entitlements are matters for the Department of Finance. There are a great many things that I have become aware of, but they are not my responsibility.

Senator CONROY: I am not asking you to pass judgement on the former Prime Minister's travel; I am asking you if you are aware that the former Prime Minister attended Mr Marks' birthday party.

Ms E Kelly : I have some recollection of something to that effect being in a newspaper report. That is far as I could go with that. I cannot speak further on that.

Senator CONROY: The Minmetals website stated that Minister Robert:

… expressed his full confidence in this cooperation …adding that the good relationship between Nimrod and the Australian government will effectively promote the success of the cooperation.

Are you aware of a relationship between the Australian government and Nimrod?

Ms E Kelly : In my previous answer I said that I do have that screenshot of that website. I do not know about the veracity of the claims in it. I have not yet had the opportunity to examine any of the claims in the article. So I am afraid that is going to my answer in relation to each one of the matters that you might seek to put out of that website or newspaper article.

CHAIR: I do not think it is fair that you ask the officer to confirm or otherwise the veracity of claims made on private website.

Senator CONROY: No, I am asking whether she is aware of any relationship, good or otherwise, between Nimrod and the Australian government.

Ms E Kelly : I am not aware.

Senator CONROY: Does the government enter into—

Ms E Kelly : Nor have I had any opportunity to examine the matter.

Senator CONROY: Are you familiar with the government entering into relationships with private companies to effectively promote the success of an operation?

Ms E Kelly : In general—any private company?

Senator CONROY: I am just asking if there is one you are aware of in general, yes.

Ms E Kelly : I think that question is a very broad question, and it is not within my area of responsibility at the Department of the Prime Minister and Cabinet.

Senator CONROY: Assistant Minister, are you aware of any contracts or relationships that have been entered into between the Australian government and companies, particularly companies that may have an association with one of your ministers.

Senator McGrath: I am not aware of any.

Senator CONROY: You are not aware of any?

Senator McGrath: No.

CHAIR: It stands to reason that any government, of any stripe, would offer all sorts of support for companies that benefit the national interest.

Senator CONROY: But I am asking: is there an official one that the Australian government have entered into?

CHAIR: No, you asked generally about any relationship the government may have entered into, and that could constitute a grant to a particular company. I am not saying it does in this case, but it is a very broad question, as Ms Kelly said.

Senator CONROY: But it sounds to me like the minister is privy to a relationship between the Australian government and the Nimrod company, and I am just seeing if anyone else is privy to it.

CHAIR: Senator Conroy, if you had confined it to the Nimrod company—but your question was about all companies, and—

Senator CONROY: Well, I was asking it in general, because I am not aware that Australian governments enter into relationships to effectively promote the success of other companies. I am just asking if anyone is familiar with any company that—

CHAIR: Well, a corporate grant—

Senator SMITH: I am aware of spying allegations involving some former Labor minister, most definitely. I am just wondering if we are going to get to a compare and contrast between Joel Fitzgibbon and Stuart Robert.

CHAIR: That is even less relevant than the general question about everything else.

Senator CONROY: I was going to say that, if I have been allegedly straying, that one comes right out of left field.

CHAIR: Let's focus: your issue is about this particular thing. If you ask about general Australian government support for private companies, it is a blanket question that is open to any sort of thing. When you were communications minister and you reduced the fees for telecommunications companies, is that an agreement? It is that sort of thing.

Senator CONROY: That was a policy decision taken by cabinet.

CHAIR: Yes, indeed, as are grants and all other manner of support that governments provide.

Senator CONROY: I am just trying to find out if there was a cabinet-level discussion or any other level of discussion about the Australian government promoting the Nimrod company.

CHAIR: That is right, and so it should be confined to that rather than just being in general, because it is too broad a question.

Senator CONROY: So at this stage Ms Kelly is not aware of such a thing? The assistant minister is not. Certainly I do not think anyone at this table is aware of that.

CHAIR: And fair enough. That is the answer.

Senator CONROY: Are you aware that Minister Robert has advised that this trip was not officially sanctioned by the Australian government and that he was attending in a private capacity?

Ms E Kelly : What I am aware of is that Mr Robert was on personal leave from 15 to 22 August 2014.

Senator CONROY: Sorry, he was on leave from—

Ms E Kelly : He was on personal leave approved by the Prime Minister.

Senator CONROY: From what date?

Ms E Kelly : From 15 to 22 August.

Senator WONG: But your obligations as a minister under the standards or the code of conduct, as it was, are not removed by the fact that you are on leave. They are not suspended.

Ms E Kelly : I was not purporting to state that.

Senator WONG: No, I am not suggesting that, but that is correct, isn't it?

Ms E Kelly : That is correct. The information that I do have—

Senator CONROY: Yes, being on leave does not mean you can go around spruiking the government's views on companies. The same standards apply to you when you are on leave.

Ms E Kelly : Senator Conroy, you put an assertion to me of which I did not know the provenance, and I have merely put to you that what I do know is that the minister was on personal leave from 15 to 22 August 2014 inclusive.

Senator CONROY: Do the ministerial standards contain any prohibition on ministers using their ministerial office to promote the commercial interests of Liberal Party donors?

Ms E Kelly : The ministerial standards speak for themselves, Senator Conroy. If you wish to put a particular part of the ministerial standards—but they speak for themselves.

Senator CONROY: Paragraph 2.1—could you take us through that. I think it is titled 'Integrity'. It says:

Although their public lives encroach upon their private lives, it is critical that ministers do not use public office for private purposes.

Have I quoted that accurately?

Ms E Kelly : You have.

Senator CONROY: What are the consequences of breaching this prohibition?

Ms E Kelly : I think it goes on to explain:

In particular, Ministers must not use any information that they gain in the course of their official duties, including in the course of Cabinet discussions, for personal gain or the benefit of any other person

Senator CONROY: That is one specific subpart of it, but I was asking what are the consequences of breaching that prohibition—2.1, Integrity? What are the consequences of breaching the code of conduct?

Ms E Kelly : The consequences for a breach are set out within the code itself. It is not specific to particular sections. That is dealt with in section 7, on implementation. It is quite a long section that has five parts. It deals with different ways in which allegations might be made under the code and the consequences that flow from them. For example, clause 7.1 says:

Ministers must accept that it is for the Prime Minister to decide whether and when a Minister should stand aside if that Minister becomes the subject of an official investigation of alleged illegal or improper conduct.

Clause 7.2 deals with if they are charged with a criminal offence, and so on. That particular section is about half a page long.

Senator WONG: Has an independent investigator or examiner been appointed in relation to Mr Robert?

Ms E Kelly : As I mentioned earlier, the matter has only just been referred to the secretary, in the course of the day. I have not yet had the opportunity to discuss it with the secretary, so there has been no progress at all in considering the secretary's advice.

Senator WONG: Sure, but as I understand it from the FOI that was released today in relation to Mr Briggs's investigation you were very efficient, Ms Kelly—the day after Mr Thawley got a request from Mr Drew Clarke, the Prime Minister's chief of staff, on 10 December, you had signed a contract with the investigator. So within 24 hours.

Senator McGrath: We have not hit 24 hours yet.

Ms E Kelly : As I said previously, in each case the secretary will decide how he requires to inform himself in order to provide his advice. Mr Thawley formed the view that he required an independent person to assist him in forming his view and so that was arranged. Dr Parkinson will consider how he best proceeds in the matter that is currently before him.

Senator CONROY: Has the Prime Minister or any member of his staff discussed today's reports with Mr Robert?

Ms E Kelly : I am not aware of that.

Senator WONG: Senator McGrath?

Senator McGrath: I am not aware of that. I will have to take that on notice?

Senator WONG: Where is Senator Brandis, by the way?

CHAIR: Cabinet.

Senator WONG: He has not been here at all.

CHAIR: The only requirement he has had was immediately prior to the dinner break, and cabinet has been operating since then.

Senator CONROY: Can you take on notice when the Prime Minister or any of his staff had discussions during the course of today—with the newspaper story, discussions were probably sought last night, or comments, so I am sure the discussion with the Prime Minister's office started last night, as is normally the case—

Senator McGrath: I am sorry, what is the question?

Senator CONROY: I am asking you to take on notice when did the first discussions take place with Minister Robert about this matter by the Prime Minister or his office, and how did it occur—was it a face-to-face meeting, was it a telephone call, what was the nature of the conversation, depending on what you can say? Are you able to take that on notice?

Senator McGrath: I am more than happy to take it on notice. I should advise that Senator Brandis's office have advised that he should be about 15 minutes.

Senator WONG: Can I just ask this question—it might have been asked in question time; I have been busy or otherwise engaged—when did the Prime Minister first become aware?

Senator McGrath: I will have to take that on notice.

Senator WONG: You do not know that?

Senator McGrath: I do not know it, so I will have to take it on notice.

Senator WONG: PMO must be watching this—I assume.

Senator McGrath: I will take it on notice.

Senator WONG: No-one can tell us when the Prime Minister first became aware of this issue with the minister that is now being referred to the secretary? Was he aware of it when he hung out with him at the Lodge for his—what was it, family day?

Senator McGrath: I will take it on notice.

Senator CONROY: Has Mr Robert been asked to produce records of meetings and records of his remarks made at various meetings and signing ceremonies during the trip?

Ms E Kelly : As I indicated, we have not had the opportunity to consider. The matter has just been referred to the secretary this afternoon, and those matters will all be considered in due course.

Senator CONROY: Will you be seeking a full copy of the transcript of the event that took place, the signing event, from the company or the Chinese company or the Chinese government? I am sure they have an excellent copy of it.

Ms E Kelly : As I indicated, Dr Parkinson will form a view on what he requires in order to prepare his advice, and we will then act on that.

Senator CONROY: Can I suggest that a full copy of the transcript of the event, and a full copy of the video recording of the event, if there was one—and I am sure there is—be sought?

Ms E Kelly : Senator Conroy, I—

Senator CONROY: No, I am suggesting that they be sought and, more particularly, that they be released to the public. So you do not just get them and keep them to yourselves; the public are entitled to view what happened and hear what happened. So audio, transcript and/or video of the event.

Ms E Kelly : Senator Conroy, I will note your assertions. I have no idea whether such things exist or would be available to the department, but I will note your assertions.

Senator CONROY: They were suggestions, not assertions. I am not asserting they exist; I am suggesting if they exist.

Ms E Kelly : I think an assertion—

Senator CONROY: I am sure they do exist.

Ms E Kelly : I think that might be an assertion, Senator Conroy.

CHAIR: We have covered both bases then.

Senator CONROY: Whether there is a formal recording or an informal recording, I am sure one exists!

Senator McGrath: Senator Conroy is just trying to be helpful.

Senator CONROY: Thank you, Minister. Has Mr Robert been asked to provide a copy of the video at this stage?

Ms E Kelly : As I said, I am not sure. I have no idea whether a video exists or is available to us or whether any discussions have taken place. I certainly have not had any discussions with Dr Parkinson, other than just the preliminary discussion where he indicated that he had received this request and we would discuss it tomorrow.

Senator CONROY: Now we are not quite sure when the Prime Minister made the request. I am just saying that is, I think, from your evidence earlier. Is it possible for us to get a rough time—before question time, during question time when he publicly announced that he had? I am assuming it was before he went into question time, given he announced it in question time. But could we find out when the Prime Minister made the request of the secretary?

Ms E Kelly : Yes—we have taken on notice when the Prime Minister first became aware of it and we are also taking on notice the time that the request was made to Dr Parkinson.

Senator CONROY: Can you also take on notice how was the referral transacted? Was it a phone call between the Prime Minister and the secretary, or was it staff of the Prime Minister? Was it a letter? Could you take that on notice?

Ms E Kelly : We can take that on notice, Senator.

Senator Wong interjecting

Senator CONROY: I think we asked when Ms Kelly became aware, and she was not quite sure. She said it was before she left.

Senator WONG: No, aware of the allegations. When were you first aware of the allegations?

Ms E Kelly : In the course of the morning.

Senator WONG: Were you aware before the matter became public?

Ms E Kelly : No.

Senator WONG: And how did you become aware?

Ms E Kelly : It was drawn to my attention in the course of the morning.

Senator WONG: By whom? By a colleague?

Ms E Kelly : Following the examination of the media clippings, which we do, of course, on parliamentary sitting days.

Senator CONROY: If a video and a recording or a transcript are available, will you undertake to release them publicly?

Ms E Kelly : That would be a matter for the Prime Minister, and, of course, we do not know that they exist or, if they do exist, whether they can be made available to the department or anyone else.

Senator CONROY: But, if they do exist, will you commit to release them?

Ms E Kelly : If they do exist, that would be a matter for the Prime Minister.

Senator CONROY: When ministers travel to China, there is very specific advice they are given before they leave. Are you familiar with the advice?

Ms E Kelly : I think that might be a matter where I might call for the assistance of Mr McKinnon, who is more experienced to speak in that area.

Senator WONG: While Mr McKinnon is coming to the table, Ms Kelly—with your leave, Chair—you said Mr Robert was on leave; can I just check who was acting for him?

Ms E Kelly : I am sorry; I do not believe my note details who was acting for him, but I can seek that information and certainly take it on notice. If we have that information available to hand, I can provide it to you earlier.

Senator CONROY: Mr McKinnon, I was asking Ms Kelly, and she kindly offered you up to assist the committee.

Mr McKinnon : I almost wish Ms Kelly had not offered me up! I have got nothing to offer you, but I am getting the colleague that looks after international policy division to come in. She may have something to offer on exactly that question. I am sorry, Senator.

Senator CONROY: I had not actually asked a question yet, so I am unsure how you can be so definitive that you have nothing to offer.

Mr McKinnon : I thought it was about advice that was given before people went to China. There is plenty of advice, but I did not want to narrow in and assume.

Senator WONG: Ms Kelly, do you have a copy of the letter to Prime Minister Abbott from Mr Robert requesting leave?

Ms E Kelly : I do not have that with me, but I can tell you who was acting for Minister Robert. Senator Johnston, the Minister for Defence, was acting for him during the period of leave.

Senator WONG: I would like to know what the letter said about the reason for leave. The letter to the Prime Minister requesting personal leave—I would like to understand what the nature of the request was. Was it personal leave?

Senator CONROY: Did he indicate he was planning to travel to China?

Ms E Kelly : It was certainly a request for personal leave. As to the details of it, I will seek to get some further detail on that.

Senator WONG: If you could, thank you.

Senator CONROY: Could we also clarify if there is a record of any discussions with Mr Robert about what was the purpose? So it is not just 'Was it in the letter?' Were people in the then Prime Minister's office aware of why he was seeking leave?

Ms E Kelly : I will take that on notice.

Senator CONROY: Thank you. Ms Wood, you have been coughed up twice, I am afraid. Obviously you have been designated. You would be familiar with the advice ministers are given prior to travel to China. I do not want to go into the details of it, but there is very specific advice to ministers about undertaking travel in China. That is correct?

Ms Wood : There is not a standard procedure for ministers travelling to China. If you would like a detailed response, we would need to take it on notice so that I do not provide unintentionally misleading information. But generally it is the responsibility of the portfolio which is supporting that minister and, if they seek further information, then of course it is facilitated—for example, through ASD.

CHAIR: What if a minister is travelling in a private capacity? Do they generally avail themselves of advice, or is it incumbent on a department to provide them with advice?

Mr McKinnon : As a result of a quick check, I think we can describe what happens as follows. It does not apply to ministers but it does apply to public servants. When we are travelling to China, we are obliged, if we have certain clearances, to inform our own security area in our own agency. We are then given certain briefings. We would assume that a particular portfolio would offer those same briefings to their minister if they have those sorts of arrangements in place, but I cannot attest to whether that is something that they do or that they have as part of their arrangements. But they would certainly make it available should ministers request it.

CHAIR: But my question stands: what happens in the case of the Public Service, where you are on holiday and you want to go to China on a private trip?

Mr McKinnon : We are still required to inform of certain destinations.

Senator CONROY: Are ministers required to inform of certain destinations if they are going to China?

Mr McKinnon : I would have to take that on notice. I am not sure.

Senator CONROY: Ms Kelly, is there a requirement for ministers if they are travelling to any particular country for any reason? I am trying to be general. If you want me to be really specific, I can be, but I am trying to stay general. If you are a minister, would it be required to advise where you were travelling to and it was considered to be a destination that was sensitive?

Ms E Kelly : As I think Mr McKinnon said, that is Mr McKinnon's area more so than mine.

Senator CONROY: Mr McKinnon, you have been handballed it back, I am afraid.

Ms E Kelly : I think he has indicated that he is not aware of a private relationship—

CHAIR: He has taken it on notice, Senator Conroy.

Mr McKinnon : I will find out what the requirements are in relation to ministers whether they are on duty at that time or on leave and I will answer that question on notice.

Senator CONROY: But you are clear that if public servants were to travel to the Republic of China they would have to advise if they were in particular areas of responsibilities?

Mr McKinnon : Depending on the security clearance.

Senator CONROY: Would Minister Robert, Assistant Minister for Defence, have a security clearance?

Mr McKinnon : I would not be able to speculate about the security clearance.

Senator CONROY: He would have to have a fairly high clearance, wouldn't he? He travels to war zones and he gets briefings from our allies about missions. He would have to have a fairly high security clearance, wouldn't he?

Mr McKinnon : I do not know.

Senator CONROY: What advice would you give to a high-ranking PM&C official who indicated that they were going on holiday in China? What advice would you give to that government official about their personal communications devices?

Mr McKinnon : It is not my role to give that advice. But I am always very careful with my own personal devices.

Senator CONROY: Someone is going to have to actually say out loud what the requirements are at some point. We all know what they are, but someone is going to have to put it on the record. You all know what the rules are and you all know what the advice is. Someone is going to have to say it out loud. Assistant Minister, you know the rules. Ms Kelly knows the rules. Mr McKinnon, you know the rules. Ms Wood, you know the rules. So someone is going to have to say it out loud, because the question is germane to the investigation.

Senator McGrath: Perhaps we will take it on notice.

Senator CONROY: No.

CHAIR: I think the officers have said that they know about the protocols in respect of a public servant, but they have taken on notice the protocols with respect to ministers.

Senator CONROY: Would the minister, even on a private trip, be advised to not take his Defence department devices, including his personal phone, his iPad or any other computer? If we are going to sit there and pretend that is not the question, I will put it on the record for you.

CHAIR: The officers have already taken on notice—

Senator CONROY: No, I do not think they did.

CHAIR: They have taken on notice the advice—

Senator CONROY: No; I was asking about his personal devices.

CHAIR: given to ministers in respect to private travel. If you want to ask them—

Senator CONROY: They do not need to take it on notice; they know the answer.

CHAIR: If you want to ask them about advice that may be given to senior public servants, they may be more aware of that.

Senator CONROY: No, they took that on notice.

CHAIR: No, they took on notice advice to ministers.

Senator CONROY: Will the investigation seek to clarify whether Minister Robert took a departmental or personal phone or Commonwealth phone, with him on his private trip to China?

Ms E Kelly : As I have said, in preparing his advice to the Prime Minister, Dr Parkinson will decide the matters on which he must inform himself, and he will consider all of the materials in deciding which matters he needs to inform himself of to prepare his advice.

Senator CONROY: Was Mr Robert provided with any consular assistance during the trip?

Mr McKinnon : I am not aware that he was, but I would not be. This would be something for the Department of Foreign Affairs and Trade as their core business.

Senator CONROY: So I should ask the Department of Foreign Affairs and Trade?

Mr McKinnon : I am saying that that would be cutting closer to the service provider for consular services. I am unaware that the senator had any consular assistant.

CHAIR: This is the second time you have upgraded people to senator status.

Mr McKinnon : I beg your pardon—the minister.

Senator CONROY: So you have been looking into this already, Mr McKinnon?

Mr McKinnon : No.

Senator CONROY: How do you know then, given that you are not in DFAT? How can you be so forthcoming to the committee that you did not?

Mr McKinnon : No, I said I was unaware, but I can be confident that—what I said was that should be addressed to DFAT. They are the service provider of consular services. They would be more likely to know than I would. In fact, I do not know.

Senator CONROY: Ms Kelly, have you seen the pictures of the event that were published in today's papers?

Ms E Kelly : As I indicated, I have seen the article in, I think, the Herald Sun, and I have seen the screenshot of the website that contains some photographs.

Senator CONROY: So you have seen those photographs?

Ms E Kelly : Yes.

Senator CONROY: They are the photographs of Mr Robert and his Chinese counterpart sitting across from one another in matching armchairs—a classic diplomatic pose. Have you seen that photo?

Ms E Kelly : Yes.

Senator CONROY: You have seen the signing ceremony—the flags and—

Ms E Kelly : I have seen the photographs on the website. I cannot recall all of the detail of each of the photographs, but I have certainly seen the photographs on the website. Obviously, when we have a chance to consider the matter further, then we will look at them in more detail.

Senator CONROY: Can I table the photographs that we are talking about?

CHAIR: I am not sure that you need to table them. They are already in the public domain.

Senator CONROY: I just wanted to ensure that they are available. Is there a problem?

CHAIR: Ms Kelly has already said that she has seen the photographs.

Senator CONROY: I can still table them, though. Is there a problem with tabling them?

CHAIR: It is not necessary. That is all I am saying.

Senator CONROY: I would like to table them, if that is okay.

CHAIR: Yes, you may, Senator Conroy, but it is unnecessary.

Senator CONROY: As I said, there is a whole variety in different newspapers and websites—

CHAIR: I would hate to see your collection of photographs, Senator Conroy.

Senator CONROY: I would not want Ms Kelly to miss out on one because she has not had a chance to read all of the different websites.

Unidentified speaker : So it has been deleted, has it?

Senator CONROY: Or if it gets deleted—exactly.

Senator SMITH: Is Helen Liu in any of the pictures?

Senator CONROY: I am unaware of who that is.

Senator SMITH: I bet you do know who that is.

Senator CONROY: No. I bet I do not.

Senator McGrath: Perhaps, Senator Smith, you could expand.

Senator CONROY: I bet I do not.

CHAIR: Perhaps, we could confine our questions to the officers. Rather than cover ground that we have already covered, we can continue.

Senator CONROY: The images which you have seen and are tabled, certainly mimic and Australian government-Chinese flags—a classic diplomatic pose. Is that unfair?

CHAIR: That is a conclusion you are drawing—

Senator SMITH: I think you are trying to draw it out now, Senator Conroy. You must be at the end of the list of questions, are you?

CHAIR: I do not think you can ask the officers for an opinion on—

Senator CONROY: I accept your admonishment, Mr Chair.

Senator SMITH: This is the end.

Senator CONROY: I just wanted to follow through on what the process is. Exactly what has the department been requested to do, Ms Kelly?

Ms E Kelly : The Prime Minister has requested Dr Parkinson's advice about whether there has been any breach of the Statement of Ministerial Standards.

Senator CONROY: When will the department report its findings? Is there a time line? Good Friday? The Thursday before Good Friday, perhaps?

Ms E Kelly : There has been no time line, but I am sure that Dr Parkinson will want to deal with the matter as expeditiously as possible, but there was no time line specified.

Senator CONROY: Will the department's findings be made public?

Ms E Kelly : As I have dedicated previously, that would be a matter for the Prime Minister. Dr Parkinson will provide his advice to the Prime Minister.

Senator CONROY: Are you aware if the matter was to be considered by the government's committee of cabinet?

Ms E Kelly : That, again, would be a matter for the Prime Minister.

Senator CONROY: Are you able at this stage to ascertain whether or not Mr Robert did speak on behalf of the Australian Department of Defence?

Ms E Kelly : As I indicated, we have not yet examined the matters that you are referring to. In the course of examining that, all of the relevant matters would be considered.

CHAIR: For the purpose of the Hansard, I thank Senator McGrath for his cooperation and welcome Senator the Hon. George Brandis to the table.

Senator WONG: Ms Kelly, I understand a letter from Mr Robert to Mr Turnbull has been distributed to the media and made public, in which Mr Robert writes to ask that the Prime Minister seek advice from the Secretary of the Department of the Prime Minister and Cabinet on these matters. Are you aware of this letter?

Ms E Kelly : No, I have not seen that letter.

Senator WONG: Can I also confirm this: as Minister Assisting the Prime Minister for the Centenary of ANZAC, Mr Robert is a minister within the Prime Minister's portfolio as well as a minister within the Defence portfolio—correct?

Ms E Kelly : I will just need to get some advice on that. I think that is quite a complex question. I just need to get some advice and let you know.

Senator WONG: And perhaps to inquire about this letter, which I have just been provided with.

Ms E Kelly : I am not aware that he is sworn to the Prime Minister's portfolio. In fact, I do not believe he is sworn to the Prime Minister's portfolio.

Senator WONG: Okay. You are not aware of this letter?

Ms E Kelly : I have not seen that letter. I am not aware of it.

Senator WONG: Is anyone in the department aware of this, the letter from Mr Robert to the Prime Minister ostensibly asking him to seek advice from the secretary of the department?

Ms E Kelly : The relevant people are assisting with estimates, and so they have not been in the department today. I can take that on notice and come back to you.

Senator WONG: Okay. I also have a question for the honours branch. Could they, at some point in the course of the next hour and a half or so, tell me this: has the department granted permission for Mr Robert to use the Commonwealth Coat of Arms on privately produced lapel pins?

Ms E Kelly : I can seek to find that information for you in the course of the next hour and a half. I have the relevant officers, and if they have that information then they will give it to you.

Senator WONG: Thank you. Chair, can I keep going on another matter. I think there are a couple of matters Ms Kelly may be able to come back on. She may or may not.

CHAIR: Okay. Proceed, please, Senator Wong.

Senator WONG: Can I go to, first, the coalition agreement, about which I have asked some question. Ms Kelly, you may recall that Mr Truss, on 15 September last year, announced that the coalition agreement had been renegotiated. In his press conference, he went to a broad range of policy matters and what I would broadly term some machinery-of-government matters. I asked the department whether or not you had a copy of the agreement—sorry, whether or not you had seen the agreement. This is question on notice 108, and the answer was, 'Yes, on 15 September.' Who saw the agreement?

Ms E Kelly : I was not in the country on 15 September. I believe the First Assistant Secretary of the Government Division was the person who saw that letter.

Senator WONG: Have you seen a copy of the agreement?

Ms E Kelly : Not on 15 September.

Senator WONG: No, subsequently.

Ms E Kelly : I am not sure what you are referring to in terms of 'agreement'. I have not seen an agreement.

Senator WONG: Okay. Well, you answered a question saying yes, so perhaps we can dispense, given the time, with a nomenclature dispute. In question on notice 108, I asked: 'Has PM&C seen the coalition agreement? If so, on what date?' The answer was, 'Yes, on 15 September.' So tell me: have you seen a document which sets out the agreement between the coalition partners and which formed the basis of the advice to the Governor-General that the Prime Minister had the confidence of the House of Representatives and the Deputy Prime Minister's public statements in the press conference of 15 September?

Ms E Kelly : I have seen a letter that may contain some of those matters. I do not know if it is as you describe.

Senator WONG: When PM&C answered 'yes' to my question 108—when I asked, 'Has PM&C seen the coalition agreement? If so, on what date?' Can someone please tell me what document they were referencing—or they understood to be referencing—when they answered?

Ms E Kelly : My understanding is that is the letter, but I will confirm that, Senator Wong because, as I said, I was not in the country at that time.

Senator WONG: Okay. Why was it shown to the first assistant secretary?

Ms E Kelly : Again, as I was not in the country, I do not think I can speak to the motivation.

Senator WONG: Who is the FAS to whom it was shown?

Ms E Kelly : It was the First Assistant Secretary of the Government Division, but the person acting in my role whilst I was out of the country was Ms Spence, and she is no longer with the department.

Senator WONG: Right. And the FAS?

Ms E Kelly : Is with the department, and I will seek to confirm that it was that letter, Senator Wong.

Senator WONG: Thank you. I just want to know—if it is Ms Lynch—who showed it to her and what were the circumstances and why was she appraising herself off the document?

Ms E Kelly : I can get that information for you over the break, Senator Wong.

Senator WONG: The break. Which break are we having?

CHAIR: We may not have a break. But what I would like to do, if we could, is perhaps suspend for two minutes just to have a brief, private meeting, because there are some things we need to resolve very shortly.

Senator WONG: Okay.

CHAIR: Are we happy with that, Senator Conroy?

Senator CONROY: I am just seeking some information which I think will be taken on notice. Will you provide to the committee the letter that Minister Robert wrote to former Prime Minister Abbott seeking leave?

Senator WONG: I have asked for that.

Senator CONROY: We have asked for that? And any other documentation between him and the PMO on why he wanted to leave.

Ms E Kelly : I have taken that on notice, Senator Conroy.

Senator CONROY: You won't commit to give it to us though?

Ms E Kelly : I have taken it on notice, Senator Conroy.

CHAIR: Minister Brandis, you are here. Are you able to provide us with the highly nationally, secretive letter of leave between Minister Robert and former Prime Minister Abbott?

Senator BRANDIS: The deputy secretary has taken the question on notice.

CHAIR: It has been taken on notice, Senator Conroy.

Senator CONROY: The minister can override it at any stage.

Senator BRANDIS: I can but I yield to Ms Kelly.

CHAIR: With that, I am just going to seek a brief suspension. I will only take a minute or two. Excuse us. We will just go outside for a chat.

Proceedings suspended from 21 : 02 to 21 : 05

CHAIR: We will resume. We are just seeking some further advice before we make an announcement on behalf of the committee, but we have some further questions from Senator Conroy.

Senator CONROY: I would say he is seeking further information himself, it appears.

CHAIR: Senator Conroy, you may address any questions you like to the minister, and the minister is perfectly entitled to answer.

Senator CONROY: Minister, will you undertake as part of the inquiry to determine whether our security services will ensure that Minister Robert's personal devices have not been to China?

Senator Brandis: I will have to take that on notice. I have not been here, as you know, during the course of questioning, nor have I been watching the broadcast.

Senator CONROY: No, we understand you have been in cabinet, so it is no issue.

Senator Brandis: So I am not really aware of the context of these questions. So I think I will take that question on notice.

Senator CONROY: But you would agree that it would be a serious misjudgement if the personal devices of any cabinet minister, or any minister, took a trip to China?

Senator Brandis: It is not something that I would repine about without being fully acquainted with all of the relevant facts.

CHAIR: Whilst there is a lull in proceedings, the committee has had some deliberations and, given the nature of time and the desire specifically for some people to speak with the Inspector-General of Intelligence and Security, it has been agreed that the ANAO, the Inspector-General of Intelligence and Security and the Digital Transformation Office will be heard on a spillover day, to be agreed at some point in the future. There may be a requirement for PM&C to appear at that spillover day as well, but if we can facilitate things effectively tonight we may avoid that. So, in essence, ANAO, the Inspector-General of Intelligence and Security and the Digital Transformation Office are all excused. My apologies for any delays they have had today.

Ms E Kelly : I can assist on a couple of the matters that you raised, Senator Wong. The secretary received the email from the Prime Minister's office at 1.58 pm this afternoon.

Senator WONG: Sorry, which topic are we on right now? This is about Mr Robert?

Ms E Kelly : Sorry, this was the email requesting the secretary's advice in relation to Minister Robert.

Senator WONG: All right, so an email from PMO to Dr Parkinson at 1.58 pm.

Ms E Kelly : At 1.58. In relation to the letter from Mr Truss to Mr Turnbull, a number of officers in the department saw that letter. We found at least half a dozen just in going and making that quick inquiry. I cannot say definitively how many officers saw it. A number of the officers saw it because they were up in Prime Minister Turnbull's temporary office—he was, of course, still in his Minister for Communications office, and they were up assisting with transition and saw it in that process. So I cannot say how many people saw the letter.

Senator WONG: Why was Ms Lynch shown a copy?

Ms E Kelly : She was one of the people that were up in the Prime Minister's office assisting with transition, as were a number.

Senator WONG: So you are describing it as a letter—I do not mind.

Ms E Kelly : The document that I saw was a letter.

Senator WONG: When you answered, you plural, the question 108—

Ms E Kelly : We were referring to a letter.

Senator WONG: Is the letter dated 15 September or another date? This is just for the purposes of identifying it.

Ms Cross : I believe it was that date.

Senator WONG: So it was a letter from Mr Truss to Mr Turnbull dated 15th of September, yes?

Ms E Kelly : That is correct. As I said, I am taking it that it was written that day.

Ms Cross : The first morning of the prime ministership. That was the 15th, was it?

Senator WONG: The day on which the letter was, Mr Truss also wrote a letter on which the Governor-General relied for the purposes of enabling the government to get to.

Ms Cross : I just cannot remember the first day of the current prime minister's prime ministership, but that was the day we were—

Senator WONG: I am happy to call it the letter from Mr Truss and Mr Turnbull, dated 15th of September, setting out arrangements—I have not actually asked a question, so I will wait.

Ms E Kelly : I am sorry, was that a question?

Senator WONG: No, you were talking, so I stopped. Shall I start again? You are just catching up; that is fine.

Senator Brandis: Indeed, I have not heard the evidence today.

Senator WONG: I am asking about the coalition agreement, which we are now calling a letter.

Senator Brandis: I understand that. I have not heard the evidence today, and perhaps this has been said, but is it an accepted fact that a letter was given to the Governor-General?

Senator WONG: Yes, that is not controversial. But that is not the same letter. There is another letter which was sent from Mr Truss to Mr Turnbull on 15 September, which I have referred to as the coalition agreement—Ms Kelly would like to use the word 'letter'; I do not particularly care—which sets out a range of arrangements as between the coalition partners about which Mr Truss has made public statements.

Senator Brandis: Yes, I am aware of that.

Senator WONG: Now I am asking about the department's knowledge of the letter. A number of departmental officials have seen it in various capacities. I am now asking: does the department retain a copy?

Ms E Kelly : The letter was one that the officers concerned considered was political in nature, and so not a departmental communication. I will have to take on notice whether we retained a copy. It may have come on one of our systems, in which case we would have a copy. But it was not a letter that we considered a departmental letter.

Senator WONG: I am not suggesting you created it, but do you retain a copy of the letter?

Ms E Kelly : I will have to take it on notice. As I said, it was a political letter. It was the way that it was seen by the officers in question, and so it was not one that was part of the department's business.

Senator WONG: My question simply is whether or not any officer of the department retains a copy of the letter.

Ms Cross : And we have taken that on notice.

Senator WONG: Thank you. In relation to the 'not official' business, the letter—if the Deputy Prime Minister is telling the truth and he is an honourable man—goes to machinery-of-government issues; water being transferred into portfolios; and public policy issues around climate change, marriage equality and others. So whatever its genesis, the implications of the letter for the public service are real. The letter caused a change in the admin orders, so it cannot—

Senator Brandis: Strictly speaking, the letter may or may not form part of the records of the Commonwealth. To the extent to which the administrative of arrangements were changed—and, of course, we know they were—then it would be the publication of the amended administrative arrangements that is the public record of the Commonwealth. Now they may, and I dare say do, reflect a political agreement between coalition parties, but that does not of itself make a document embodying that political agreement part of the public records of the Commonwealth.

Senator WONG: No, but, as I said, there was a change in the admin orders—for example, just in one specific regard, which is water—leaving aside any cabinet reshuffle or ministerial reshuffle. My point is: whatever the argument—I do not accept it—about the genesis of the letter and whether or not it is a political document, the content of the letter has clear implications and consequences for public administration.

Senator Brandis: That is so, obviously, but many decisions made within or between political parties which are of a purely domestic character have implications subsequently for the public administration of the Commonwealth. That does not make the record of the domestic affairs of the political party part of the records of the Commonwealth; it merely gives it a historical importance.

Senator WONG: It is a very different proposition: whatever is in your platform or policy versus a deal between the coalition partners which goes to where water would be administered, what policy will be and how many cabinet ministers there will be. They are very different things. I will ask you this: are you prepared to provide a copy of the agreement?

Senator Brandis: I would have to take that one notice.

Proceedings suspended from 21:16 to 21:30

Senator WONG: I will move on to questions about Mr Briggs and the role PM&C played in those matters. I would like to get some sense of the time line. In that regard, we have been assisted by the FOI documents received today from PM&C. As I understand it, the Prime Minister sought advice from Mr Thawley on 8 December in relation to Mr Briggs's alleged conduct. Is that correct?

Ms E Kelly : The Prime Minister formally requested Mr Thawley's advice on Thursday, 10 December, under sections 7.3 and 7.4 of the Statement of ministerial standards.

Senator WONG: Can you assist me with the time line? The first date you have here—and you have not actually given me anything; you have exempted everything, which is pretty impressive—is 8 December. It says: '8 December: Email between PM&C officers on options available under the Statement of ministerial standards'. What prompted that communication?

Ms E Kelly : The formal request for that advice came on Thursday, 10 December. There were discussions with Mr Thawley prior to that date.

Senator WONG: Let us talk about informal communications or discussions. I want to know when the department first became aware of the allegations. Can you tell me when and how, please?

Ms E Kelly : The communication was directly with Mr Thawley. I am not able to say definitively, but my recollection of when Mr Thawley first told me that he was aware of the matter was earlier in the week.

Senator WONG: Which week is that?

Ms E Kelly : The week of Thursday, 10 December, was when the formal request came. It was earlier that week.

Senator WONG: Could it have been the previous week?

Ms E Kelly : That is not my recollection, but I cannot speak for Mr Thawley.

Senator WONG: I will ask you. It is obviously reasonably serious. Your evidence is that, at some point prior to 10 December, when there was a formal request for advice, which I assume is the document in the FOI material—do you have the FOI request here, the table at the front?

Ms E Kelly : I have the documents. I do not have the table. I might get officers to provide that to me.

Senator WONG: I will be working off that, so that might be of assistance. You have told me—although you have exempted the document—that on 10 December there was an email from PMO to PM&C requesting advice. That is what you referred to as 'the formal advice'. Is that right, Ms Kelly?

Ms E Kelly : That is right.

Senator WONG: Your recollection is Mr Thawley told you of his knowledge of these issues at some point in the week prior to that Thursday?

Ms E Kelly : Yes.

Senator WONG: What was disclosed to you?

Ms E Kelly : Mr Thawley indicated that the Prime Minister's chief of staff—is my recollection, but I could not preclude whether it was directly the Prime Minister's discussion as well, because Mr Thawley obviously spoke regularly to both, but he indicated that he may have to seek the secretary's advice in relation to the matter.

Senator WONG: When it said 'the matter', to your knowledge when was PM&C aware of the allegation that there had been a complaint in relation to Mr Briggs's conduct whilst overseas?

Ms E Kelly : As I said I cannot state definitively. My recollection is that it was sometime in the week prior to the 3rd and the 10th.

Senator WONG: Sorry, I wasn't trying to trick you Ms Kelly; I am actually trying to discern whether or not the discussion with Mr Thawley is the first time that you became aware of there being—do you see what I am saying?

Ms E Kelly : Yes, that is definitely the case. It is my clear understanding, yes.

Senator WONG: So is it rumour or something previously that Mr Thawley says the PM has raised it with him, or is this the first time that Mr Thawley, you and others become aware of the allegations?

Ms E Kelly : The latter.

Senator WONG: The latter. Okay, thank you. There is then an email: the formal request for advice that you have described on 10 December at 10.38 pm.

Ms E Kelly : Yes.

Senator WONG: I am sorry, actually that is not right: it was 10.23 pm, and then Mr Thawley forwards it to you at 10.38 pm.

Ms E Kelly : Yes.

Senator WONG: You were aware this request was coming?

Ms E Kelly : Mr Thawley had discussed the matter, but I was not aware specifically that the request was coming or that it was coming at that particular time.

Senator WONG: Mr Clarke, the chief of staff to the Prime Minister says, 'This email is to confirm our discussions over the last two days regarding a particular minister'. Were you involved in any of those discussions Ms Kelly?

Ms E Kelly : No, I was not. It was only as reported to me by Mr Thawley.

Senator WONG: Was there any other officer at the department other than Mr Thawley involved in those discussions?

Ms E Kelly : No, not my knowledge.

Senator WONG: Obviously, this is second-hand, but these are discussions which occurred between Mr Thawley and Mr Clarke—is that right?

Ms E Kelly : Mr Thawley and Mr Clarke—and I cannot exclude that there may have been direct discussions with the Prime Minister as well.

Senator WONG: Sure, but no other public servant that you are aware of?

Ms E Kelly : No, that is correct.

Senator WONG: On 10 December at 10.38 pm you were advised of the request for advice under the Statement of Ministerial Standards. You then, the very next day, wrote to Ms Lynelle Briggs—no relation—the former Public Service Commissioner, I think, is right?

Ms E Kelly : That is correct.

Senator WONG: With a contract setting out a request for professional advice in relation to this investigation.

Ms E Kelly : That is correct.

Senator WONG: Was that letter prepared prior to the email on 10.38 pm the night before?

Ms E Kelly : My recollection is that letter was prepared on 11 December—the day that it is dated.

Senator WONG: And if the contract, which was also attached?

Ms E Kelly : Yes.

Senator WONG: Had you spoken to Ms Briggs prior to this?

Ms E Kelly : Yes, I had spoken to Ms Briggs either on the Wednesday or on the Tuesday. Just the day before is my recollection—

Senator WONG: Sorry, was the Thursday the 11th?

Ms E Kelly : The Thursday was the 10th.

Senator WONG: So earlier that week after your discussion with Mr Thawley—

Ms E Kelly : Yes.

Senator WONG: you had scoped with her the possibility that she might be asked to do some work?

Ms E Kelly : Mr Thawley had indicated that he had anticipated that the Prime Minister was going to request advice and he was considering how he would provide the advice. It was his view that he would prefer to hire an independent person to assist him in forming his view.

Senator WONG: I want to ask this general question: I want to know when and how did the department become aware there had been an incident at a bar in Hong Kong involving a minister, a ministerial staffer and a consulate official?

Ms E Kelly : I can only repeat my previous answer that Mr Thawley informed me—earlier in that week, is my recollection—and I cannot say when Mr Thawley first became aware of it.

Senator WONG: Senator Brandis, when and how did the Prime Minister become aware that there had been incidents in a bar in Hong Kong involving a minister, a ministerial staffer and a consular official?

Senator Brandis: I will obviously have to take that question on notice.

Senator WONG: Are you able to assist, Ms Kelly?

Ms E Kelly : No.

Senator WONG: The investigation—shall I call it that? Is that what this is? What would you like me to call it, Ms Kelly?

Ms E Kelly : Advice was requested from Ms Briggs, and advice was provided, and that was used by Mr Thawley to inform his advice.

Senator WONG: Okay. So did Ms Briggs—you do not want it called an investigation; you want to call it advice—in the course of preparing her advice take statements from Mr Briggs and his chief of staff?

Ms E Kelly : I think the letter actually says that the secretary of the department is seeing your professional advice, under paragraph 7.4.

Senator WONG: I am not going to have an argument about what to call it; I just want to know what happened. I am happy to call it advice if that makes you more comfortable.

Ms E Kelly : In the course of preparing her advice, my understanding—and I certainly assisted Ms Briggs in making the arrangements—Ms Briggs did speak to the former minister.

Senator WONG: And his chief of staff?

Ms E Kelly : Yes.

Senator WONG: Now I want to make it clear. I do not seek anything, obviously, that identifies the complainant. But anyone else?

Ms E Kelly : Ms Briggs spoke to the DFAT employee involved.

Senator WONG: Did Ms Briggs examine text messages exchanged between Mr Briggs's chief of staff and the consular official or the DFAT official?

Ms E Kelly : I will need to check that. I am not aware of any specifics. Not that I provided to her.

Senator WONG: Can you tell me what the cost of Ms Briggs's advice is? Sorry, let us just finish the time frame. So the contract is sent on 11 December. The report is provided to Mr Thawley on 21 December. Is that correct?

Ms E Kelly : The contract was actually hand-delivered. I hand-delivered it to her home on 11 December.

Senator WONG: So contracted on 11 December. Report submitted to Mr Thawley on the 21st. Is that correct?

Ms E Kelly : Yes. As you can imagine, Ms Briggs agreed to provide her advice on very short notice. She had a number of other commitments. She had to take on this additional advice and accommodate it within her other commitments.

Senator WONG: Sure. All I asked for was the dates. So the 11th to the 21st.

Ms E Kelly : Yes, that is right.

Senator WONG: The rate that is set out in the contract, $3,850 per day—how was that set?

Ms E Kelly : That was Ms Briggs's usual rate.

Senator WONG: The report, which has also been exempted, was four pages long. Would that be right?

Ms E Kelly : I believe that is the case.

Senator WONG: Can you tell me how many days Ms Briggs did and what her final payment was?

Ms E Kelly : I will be able to tell you that. I do not have it to hand. I have everything else. I will get that for you and tell you directly.

Senator WONG: Thank you. Do you want me to pause or should I go on?

Ms E Kelly : It should not take long. Just a few minutes.

Senator WONG: Did PM&C meet any costs other than the daily rate cost?

Ms E Kelly : No.

Senator WONG: Can you tell me when and how were the findings of the investigations reported to the government—or the advice?

Ms E Kelly : Ms Briggs provided her advice to Mr Thawley on 21 December. Mr Thawley provided advice to the Prime Minister.

Senator WONG: Has there been any deed of settlement in relation to this matter or any compensation paid?

Ms E Kelly : No.

Senator WONG: That you are aware of?

Ms E Kelly : That I am aware of, and I do not believe there has been.

Senator WONG: Was there any consideration of whether or not Mr Briggs's chief of staff's conduct was in breach of the ministerial staff code, or whatever it is called now—that standards for ministerial staff?

Ms E Kelly : That issue was not examined by the department.

Senator WONG: No-one in PM&C has been asked to provide advice on that?

Ms E Kelly : That issue was not examined by the department, and the department was not asked to examine it.

Senator WONG: Is that a no to my question?

Ms E Kelly : Yes.

Senator WONG: You said Ms Briggs provided her advice to Mr Thawley and then Mr Thawley provided advice to the government. Can you tell me when and how Mr Thawley provided advice to the government?

Ms E Kelly : Mr Thawley provided advice to the Prime Minister. I believe it was on the afternoon of Monday the 21st.

Senator WONG: Did he provide that advice in writing?

Ms E Kelly : Certainly written advice was prepared and provided. I do not know whether there were conversations in addition to the written advice.

Senator WONG: I think you have answered this, but to whom did he provide the advice—only to the Prime Minister?

Ms E Kelly : He provided the advice to the Prime Minister.

Senator WONG: Did any officer of the department—

Ms E Kelly : If I could just clarify, the Prime Minister had indicated that the advice would be provided to the governance committee of cabinet, so the advice was prepared to go to the governance committee of cabinet but was provided to the Prime Minister for the purpose of going to the governance committee of cabinet.

Senator WONG: So when did the cabinet committee meet to consider it?

Ms E Kelly : The following day.

Senator WONG: On 22 December?

Ms E Kelly : Yes.

Senator WONG: That would be that email. Did any officer of the department receive copies of photographs of Mr Briggs and the consular official taken on the night, either before or after the formal complaint was made?

Ms E Kelly : Not that I am aware of, although the newspaper reports were obviously seen by many.

Senator WONG: Apart from seeing it on the front page? I am asking if any—

Ms E Kelly : No.

Senator WONG: Did any staff member of the Prime Minister's office receive copies of the photographs of Mr Briggs and the consular official taken on the night, either before or after a complaint about the behaviour was made?

Ms E Kelly : I have no knowledge of that, but not to my knowledge. But I would have no knowledge of that.

Senator WONG: Senator Brandis?

Senator Brandis: Not that I am aware.

Senator WONG: Can it be taken on notice?

Senator Brandis: Yes.

Senator WONG: Thank you. Ms Kelly, I think you said you 'made arrangements'—I think that was the phrase you used—to assist Ms Briggs in 'interviewing' Mr Briggs, the former minister? Was that the phrase you used?

Ms E Kelly : I do not believe I used that phrase, but she certainly spoke to three people in the course of preparing her advice.

Senator WONG: How would you like me to refer to it, then? If you do not want it to be an interview, what do you want it to be?

Ms E Kelly : Ms Briggs spoke to three people in the course of preparing her advice.

Senator WONG: Okay, and you were involved in helping establish the meeting with Mr Briggs for the purposes of that conversation?

Ms E Kelly : I assisted Ms Briggs in setting up the meetings for all of the three people that she spoke to.

Senator WONG: Was anyone else present in those meetings?

Ms E Kelly : No, just Ms Briggs and individuals.

Senator WONG: Does that report include any attachments involving transcripts or anything of the like of the meetings?

Ms E Kelly : I need to take that on notice. Obviously, a report was submitted. It was prepared for the purpose of and submitted to the Governance Committee of cabinet.

Senator Brandis: I can help you, Senator Wong: the document I saw was the document that was tabled in the Governance Committee of cabinet. I do not believe it had any annexures to it.

Senator WONG: Did it outline what Mr Briggs and his chief of staff said?

Senator Brandis: Obviously, it is a cabinet paper, so I am not at liberty to talk about its content. I was just trying to be helpful to avoid you going down a dark alley, as it were. There were no annexures.

Senator WONG: I will come back to this when you get the answer to my other question. Can I move onto Mr Brough. Why has Mr Brough stood aside as Special Minister of State and Minister for Defence Materiel and Science?

Ms E Kelly : I think the Prime Minister has made a statement about those circumstances. The Prime Minister has said:

As far as Mr Brough is concerned, he- his lawyers advised him and he came to the view, based on what his lawyers had told him, that the investigations or the inquiries were not likely to be completed any—before Parliament came back in February, in other words. They were not going to be completed as quickly as perhaps he might have—as he hoped earlier. In the circumstances, I think his decision—I agreed with him that his decision to step aside was the right one.

Senator WONG: Pending what?

Senator Brandis: I think, Senator Wong, that it is really not for the officer or indeed for me to interpret for you or to put a gloss on the Prime Minister's words. The Prime Minister—

Senator WONG: I am just trying to understand what the position is. I do not particularly want to gloss Mr Turnbull's words or not gloss them. You are his representative.

Senator Brandis: I am.

Senator WONG: I am trying to understand: is it standing aside until these investigations have been concluded? I am just trying to understand the parameters of the standing aside.

Senator Brandis: Indeed. Senator Wong, as Ms Kelly has said, Mr Turnbull has made a statement which may be taken to be the definitive expression of his view on the matter, and neither Ms Kelly nor I really are in a position to be commentators or interpreters of that statement or indeed to add to it.

Senator WONG: We are not asking you to be a commentator; we are asking you to represent the Prime Minister at Senate estimates.

Senator Brandis: I have got nothing to add to the Prime Minister's—

Senator WONG: Could it be indefinite?

Senator Brandis: I have nothing to add to the Prime Minister's statement.

Senator WONG: So it could be indefinite or not?

Senator Brandis: I have nothing to add to the Prime Minister's statement.

Senator WONG: Can I ask about the NSC document, which was leaked to the media, and about which, I think, in Senate estimates today it has been suggested that the AFP will be looking at the leak of the draft submission.

Ms E Kelly : Yes, Senator Wong.

Senator WONG: What involvement has PM&C had in this decision to refer the matter to the AFP and when did you become aware of that?

Ms E Kelly : No involvement that I am aware of in the secretary of immigration's decision.

Senator WONG: Because my recollection is that PM&C via cabinet secretariat is responsible for the maintenance of cabinet confidentiality. So why have you had no involvement and this is being announced by the secretary of immigration?

Ms E Kelly : The discussion was a decision of the secretary of immigration. Obviously, in the course of discovering that potential cabinet material had been released in an unauthorised manner, all departments who had access to the material were making inquiries within their own departments about what was happening in relation to it. In the course of that day, the secretary for the Department of Immigration and Border Protection formed that view.

Senator WONG: So when you were advised—has the matter actually been referred to the AFP?

Ms E Kelly : My understanding is that in fact we were provided with a copy of the secretary for immigration's referral to the Australian Federal Police.

Senator WONG: When?

Ms E Kelly : I might get Mr Fox to assist me with this as he was dealing with the matter.

Mr Fox : We were advised by Immigration on Friday afternoon that they would be referring the matter to the Australian Federal Police.

Senator WONG: Was that the first time that possibility had been raised with PM&C?

Mr Fox : As far as I am aware, yes.

Senator WONG: Was there any discussion with Dr Parkinson?

Mr Fox : Not by me, no.

Senator WONG: No, by the AFP. Was there any head of agency to head of agency contact about this?

Mr Fox : Not that I am aware of.

Ms E Kelly : Not that I am aware of either.

Senator WONG: Would it be usual for a leak of cabinet material to be referred to the AFP without that decision ahead of time being discussed with PM&C?

Mr Fox : I think, as the secretary of the immigration department said to the Legal and Constitutional Affairs Committee this morning, the document was described as a pre-exposure draft. It was prepared by officials for an interdepartmental committee. So it might in fact have been lodged as a cabinet document at that time. That is what it appeared from the document that was reported in the media.

Senator WONG: Did you investigate any disclosure from your end at all?

Ms E Kelly : Yes.

Mr Fox : Yes.

Ms E Kelly : As is our practice, we commenced an investigation of who in the department and how the material was received, and we did searches of our own internal systems about how the document was disseminated. Those investigations continue today.

Senator WONG: They have not been concluded?

Ms E Kelly : No.

Senator WONG: But the AFP referral would be in relation to any possible leak from the Department of Immigration and Border Protection—is that correct?

Mr Fox : That would be a matter for the Australian Federal Police.

Senator WONG: That is what I am trying to get clear here. You are undertaking your normal—although cabinet leaks are not normal—usual approach in terms of investigating a cabinet leak. In addition, because of the fact that this was a document that was in a number of agencies, various agencies are replicating or doing something similar about who had the document et cetera. The secretary of the department of immigration has referred it to the AFP. Is that referral considering whether the immigration department is the source of the leak, or does that investigation extend to the whole of the Public Service?

Mr Fox : I am not really able to answer the question definitively, but my assumption would be that it would be covering the way in which the document was provided in an unauthorised way to the media.

Senator WONG: However it happened.

Mr Fox : However described.

Senator WONG: Wouldn't that usually be something that PM&C would do? That is why I am a little confused about it. A referral to the AFP of a cabinet document leak, regardless of where people think it might have come from—wouldn't that usually come from you?

Ms E Kelly : I think Mr Fox has explained that describing the document as a cabinet document is perhaps an oversimplification, because the document was slightly different in nature to a document that, for example, had been lodged for cabinet's consideration or considered by cabinet.

Mr Fox : Exactly.

Senator WONG: It was a drafting draft document?

Mr Fox : As I said, the term of art—and it was indeed the one that Mr Pezzullo used this morning—was that it was a pre-exposure draft.

Senator WONG: Pre-exposure draft, okay. Also on NSC, the obligation to maintain confidentiality about deliberations of the NSC continues, upon any of us who have been members of NSC, beyond holding those positions—correct?

Mr Fox : Yes. The oath that ministers of office take is not limited by time.

Senator WONG: Correct. So as a general rule a former minister could not disclose NSC deliberations after leaving the ministry—correct?

Mr Fox : Correct.

Senator WONG: Were you aware of former Minister Andrews's tweet on 3 October 2015 in relation to the Hawkei decision:

I was pleased to take the #Hawkei submission to the NSC some months back, at which point it was approved #auspol.

Were you aware of that?

Ms E Kelly : I did see that material.

Senator WONG: On Twitter or via some other means?

Ms E Kelly : I cannot recall how it was drawn to my attention.

Senator WONG: Are you an avid Twitter watcher?

Ms E Kelly : I do not follow Mr Andrews.

Senator Brandis: And, Senator Wong, there are, of course, occasions when decisions that may be made by the NSC—I am not saying that to which you refer was one of them; I do not know—are announced and become a matter of the public record.

Senator WONG: So, therefore, it is okay to say what was previously discussed?

Senator Brandis: No, I am merely saying that that which is subject of a decision at the NSC or cabinet is quite commonly then the subject of public announcement and, therefore, public record.

Senator WONG: I presume you will be happy to provide to us the NSC submission and the minutes recording the decision, if his disclosure of it is somehow fine, because the decision has been announced.

Senator Brandis: No, there is a series of assumptions in your question—

Senator WONG: True.

Senator Brandis: which have not been established.

Senator WONG: Can you explain to me whether you consider it, as the minister representing the Prime Minister, appropriate for a former defence minister to issue a tweet about a consideration by the NSC in which he was a part?

Senator Brandis: I have not seen the tweet. I have not verified the tweet. I know nothing about it.

Senator WONG: I am happy to find it.

Senator Brandis: I am merely making the broader observation that for a current or former member of the NSC to say something about a decision by the NSC—or, indeed, cabinet—may or may not be an unauthorised disclosure, because the decision might, in the meantime, have been routinely announced and made a matter of the public record.

Senator WONG: Kevin Andrews MP:

I was pleased to take the—

It even has a picture—

#Hawkei submission to the NSC some months back, at which point it was approved #auspol.

I would like to table this and I would like the minister to respond.

Senator Brandis: What is your question?

Senator WONG: Do you think it is acceptable for a former minister of defence to be tweeting about discussions in the NSC?

Senator Brandis: For a start, I am not aware of whether or not the subject matter of that document refers to a decision of the NSC which, in the meantime, had been put into the public domain. I do not know.

Senator WONG: Does anyone in government actually care whether or not someone starts talking about a NSC decision? Was anyone aware of this until it was raised? I am sorry, Ms Kelly. I got distracted by Senator Brandis. You said you were aware but you cannot recall how, is that right?

Ms E Kelly : That is correct.

Senator WONG: Mr Fox?

Mr Fox : I recall coverage of the story, but I cannot recall where I saw it.

Senator WONG: Okay, then I will ask on notice. Was any departmental officer aware of Mr Andrews' tweet referencing a NSC discussion? Was any investigation of that undertaken? Was there any communication with Mr Andrews in relation to that matter? Does the obligation upon the former minister of defence as to confidentiality of NSC discussions subsist?

Ms E Kelly : That is a matter that I would need to take on notice.

Senator WONG: I want all of those taken on notice, please.

Ms E Kelly : Yes.

Senator WONG: I appreciate that. I assume you have taken no action in relation to the unauthorised disclosure. Is that correct?

Senator Brandis: You keep using the word 'disclosure'. Disclosure, to me, means 'something that is disclosed'.

Senator WONG: He says, 'I took it to the NSC.'

CHAIR: The minister was responding, and I think he was going to make a very valid point.

Senator Brandis: I am actually one of those people who believe that words have meanings. If the matter which is the subject of this document had been publicly announced before the document was released by tweet, then it would not be a disclosure.

Senator WONG: It is a disclosure of when he took it to the NSC and the fact that it was approved at the NSC at that time. If your evidence is that a subsequent announcement of a defence procurement—

CHAIR: I do not think you should—

Senator WONG: I am responding to the minister—then table the NSC decision.

CHAIR: You should not be characterising what Senator Brandis has said. He has given the evidence and it is up to you now. You can respond to it, but you should not—

Senator WONG: Okay.

Senator Brandis: Let me illustrate what I mean.

Senator WONG: Can we move on?

Senator Brandis: Let me illustrate what I mean.

Senator WONG: We are just going to have more on the spillover.

Senator Brandis: You raised the issue, so be prepared for the response.

Senator WONG: We were going on very well until you arrived, George, as is usually the case.

Senator Brandis: This tweet was issued on 4 October 2015. Now, if—and I do not know whether this is the case or not—by hypothesis, prior to 4 October 2015, Mr Andrews in his previous capacity as defence minister had made a public announcement of the decision there described, this would not be a disclosure.

Senator WONG: The defence minister did not disclose the information disclosed by—

Senator Brandis: Do you know that?

Senator WONG: Let me finish. The defence minister announces a procurement decision. The defence minister does not disclose that this submission went to NSC some months back, at which point it was approved, nor that Mr Andrews, the then minister, took it.

Senator Brandis: I think we are at cross-purposes. The point I am making to you is that it may well be—I do not know and evidently neither do you—that every piece of information in this tweet had been announced in the routine fashion prior to the issue of the tweet.

Senator WONG: Ms Kelly, are you aware of an article that the former Prime Minister's adviser Mr Shearer published in The National Interest?

Ms E Kelly : I am not.

Senator WONG: Mr McKinnon, are you?

Mr McKinnon : I am aware of recent articles that he has published. I am not exactly sure where they appeared or the nature of the publications.

Senator WONG: The report of the article is that Mr Shearer published an article in The National Interest. I am quoting from The Australian report of 23 January:

… Mr Shearer claims Washington believes Japanese submarines would offer a superior capability for the Australian navy and long-term strategic benefits across the region.

He then goes on to write, and this is a direct quote:

“But senior US officials and military officers are in no doubt as to the superior capability of the Japanese Soryu-class and to the long-term strategic benefits to the US and the region of an interoperable fleet of Australian and Japanese conventional submarines equipped with US combat systems.”

It, on the face of it, is a former staffer making assertions about the undisclosed views of US officials and military officers about the suitability of Japanese submarines.

Senator Brandis: I do not think that is a fair—or certainly an inevitable—characterisation of what Mr Shearer said. Mr Shearer is expressing an opinion.

Senator WONG: No, he is not: 'Senior officials in military officers are in no doubt'. He is expressing a view about what US officials and military—

Senator Brandis: I think—

Senator WONG: Could you stop running interference and let the officials answer questions, seriously.

Senator Brandis: He is expressing a view about the state of a current debate in which a variety of views are held in a variety of quarters.

Senator WONG: Are you aware of this article, Mr McKinnon?

Mr McKinnon : Yes, I read it at the time.

Senator WONG: I put to you that Mr Shearer is expressing a view about what senior US officials and military officers' opinions are.

Mr McKinnon : He is entitled to express a view. I did not pay particular attention to it.

Senator WONG: He is entitled to express a view as a former national security adviser to the Prime Minister—or as a defence adviser; I cannot recall what he ended up being—about what our most important ally's military officers think, which they have not been public. Let's be clear about that: at no point has the US made public this view, correct?

Mr McKinnon : They still have not, as far as I am concerned.

Senator WONG: Correct.

Senator Brandis: But that is not what Mr Shearer said.

Senator WONG: Chair, I have not—

Senator Brandis: Senator Wong—

Senator WONG: I was not asking him that.

Senator Brandis: That is not what Mr Shearer said.

Senator WONG: I am not asking him that question.

Senator Brandis: What you are now attributing to Mr Shearer is not what Mr Shearer said—as you must know, Senator Wong, because you just read, verbatim, the quote.

Senator WONG: Mr McKinnon, I will ask the question again. I do not think I mentioned Mr Shearer in this question, but the Attorney-General appears to think I did. US military and senior officials have not made public their view about whether or not Australia should get the Japanese submarines—is that correct?

Mr McKinnon : The only view they have publicly expressed is that it is a decision for Australia.

Senator WONG: That is correct. So why is he formed prime ministerial adviser writing:

US officials and military officers are in no doubt both as to the superior capability of the Japanese Soryu-class (submarines) and to the long-term strategic benefits to the US and the region of an inter-operable fleet of Australian and Japanese conventional submarines equipped with US combat systems.

Why is Mr Shearer asserting a view about what the US thinks?

Mr McKinnon : You would have to ask him.

Senator WONG: Do you think there is any possibility—

Senator Brandis: Presumably, Senator Wong, it is because that is Mr Shearer's opinion. Mr Shearer is a private citizen. He is knowledgeable person about—

Senator WONG: He was certainly knowledgeable in the Prime Minister's office.

Senator Brandis: He is a knowledgeable person—

Senator WONG: Can you assure us that he is not writing on the basis of classified information that he received while working for the former Prime Minister?

Senator Brandis: He is a knowledgeable person and—

Senator WONG: Did he receive this information while working for the former Prime Minister?

CHAIR: It is not helpful if you interrupt each other. Senator Brandis, please conclude.

Senator Brandis: Mr Shearer is a private citizen. He is a knowledgeable person. He is an expert in this field. He has opinions about the matter. Those opinions plainly include opinions about the state of the debate. He is expressing those opinions as a private citizen. There is absolutely no basis for you to draw the inference which you are putting to the witness.

Senator WONG: I am asking you to rule out that Mr Shearer is relying on information he gleaned about the views of the United States—

Senator Brandis: I know—

Senator WONG: I have not finished my question!

Senator Brandis: Please do not raise your voice at me.

Senator WONG: I tire of not being able to finish my questions when you are here, Senator Brandis. I know you love the sound of your own voice, but please let me ask the question.

CHAIR: That is not necessary. Senator Wong, ask your question. I ask the minister to allow that to take place.

Senator WONG: Thank you, Chair. Senator Brandis, I am asking you to rule out the possibility that Mr Shearer is relying on information he received whilst working for the former Prime Minister.

Senator Brandis: Knowing Mr Shearer as I do, and knowing him to be a person of conspicuous integrity, I am sure Mr Shearer would have done nothing inappropriate.

Senator WONG: He had access to highly classified information in the position he held, did he not?

Senator Brandis: He had access to cabinet material relevant to the area in which he was the adviser.

Senator WONG: He has been out of government service for what—a matter of weeks?

Senator Brandis: About 4 ½ months.

Senator WONG: Is it your suggestion that these sorts of disclosures remain entirely appropriate?

Senator Brandis: You are again saying that this is a disclosure. I thought you agreed a moment ago that Mr Shearer was merely expressing an opinion.

Senator WONG: I do not agree with that at all. That was your view. I would like to go back to your interesting legal sophistry that says: 'If the defence minister said what former Minister Andrews said, then it is not a disclosure. I have the joint media release of 5 October—'Army's Hawkei to be built in Australia'—which does not disclose when this went to the National Security Committee nor that the minister Andrews took it there. I again ask: is it appropriate for a former Minister of Defence to, ex post, disclose deliberations of the National Security Committee?

Senator Brandis: Again I do not accept that this is a disclosure. I do not know enough about the history of this decision, but you are asserting that this is a disclosure and that has not been established.

Senator WONG: No, it is just a tweet to everybody. Your capacity to dismiss things that are in front of you is truly amazing.

Senator Brandis: I am sorry that you find my insistence that you ask your questions with precision irritating.

Senator WONG: I do find your pomposity irritating; that is true.

CHAIR: Order! Come on—it is unhelpful.

Senator WONG: Perhaps I should ask this question. Mr McKinnon, would a current or former official be able to disclose precisely the same information as is contained in the tweet from Mr Andrews without sanction?

Mr McKinnon : I am not sure what information was—

Senator WONG: Can you be provided with a copy of the tweet, please. I tabled it. Please look at it and tell me, if one of your officials tweeted that or made that public, whether or not that would be acceptable.

CHAIR: I hope you will apply the same standards to the ABC.

Senator WONG: It is not the NSC. They are not former ministers.

Mr McKinnon : I cannot speak for the minister.

Senator WONG: I did not ask you to speak for the minister. I said: would you be allowed? If you issued a tweet in exactly the same terms, would that be permissible?

CHAIR: I think, to put it into context—

Senator WONG: You do not want to let them answer that, do you?

CHAIR: you have got to ask the officer if a former employee of the department—

Senator WONG: I was going to do that next. I was doing current, then former.

CHAIR: They are quite significant differences.

Senator Brandis: I think context is everything here. You have not established that this is a disclosure. That is the problem. The logical fallacy in your line of questioning is you have not established that this was not already a matter of public record.

Senator WONG: That is not a logical fallacy. Mr McKinnon, you have now seen the tweet. Would it be acceptable for a current employee of Prime Minister and Cabinet to issue that information?

Mr McKinnon : Officials do not release information about what happens in cabinet. It is not up to us to make announcements, so it is a hypothetical one that does not really apply to officials.

Senator WONG: An official could not do that, could they?

Mr McKinnon : We do not make announcements about NSC—

Senator WONG: Well, he is not making an announcement, is he? He is not a minister.

Ms Cross : This is comes up in estimates from time to time. If a minister has previously announced something, then we are able to refer to that in answering questions—

Senator WONG: Refer to it?

Ms Cross : but if a minister has not announced something then we would not.

Senator WONG: Did the minister announce that Minister Andrews had taken this to NSC or the date or the time frame in which NSC considered it? Was that ever made public by the current minister?

Senator Brandis: I do not know. I will take that on notice.

Senator WONG: The answer is no.

CHAIR: You do not know the answers.

Senator WONG: I am asking the officials.

CHAIR: And the minister has taken it on notice.

Senator Brandis: The question has been taken on notice.

Senator WONG: The answer, officials?

CHAIR: The question has been taken on notice.

Senator Brandis: The question has been taken on notice.

Senator WONG: I am asking if the officials—

Senator Brandis: I will take the question.

CHAIR: Order! Senator Wong, you do understand that the minister is perfectly entitled to take answers on behalf of senior officials.

Senator WONG: Sure.

CHAIR: He has taken it on notice. There is no point pursuing it.

Senator Brandis: I honestly do not know the answer to your question—whether this had been preannounced or not.

Senator WONG: Ms Kelly—

CHAIR: Order! The question has been taken on notice. Move along.

Senator WONG: Ms Kelly, as we discussed previously in the context of the NSC 'pre-exposure leak', the draft leak—is that the phrase you used, Mr Fox?

Mr Fox : Pre-exposure draft.

Senator WONG: Pre-exposure draft leak. PM&C protects cabinet confidentiality, not the F&PA committee, obviously. So I am asking you: will you undertake to investigate whether this tweet constitutes an unauthorised disclosure?

Ms E Kelly : I will take that on notice.

Senator WONG: Ms Kelly, if we are finishing at 10.30, there is an FOI on the handling of it I will want to go to, but that will be a longer set of questions than the next 12 minutes. I think my colleague has some questions.

Senator McALLISTER: I would like to ask some questions about the arrangements for managing any conflicts of interest held by the minister. At the last round of estimates—

Senator Brandis: Managing what, sorry?

Senator McALLISTER: Conflicts of interest in relation to the Prime Minister.

Senator Brandis: I am not aware there are any.

Senator McALLISTER: I said 'any'. I did not assert that there were any; I said any that might exist. At the last round of estimates, Ms Kelly advised Senator Collins that Mr Turnbull had sought advice from the department about whether his private interests had the potential to conflict with the official responsibilities attaching to his new role as the Prime Minister. I think that you advised that that advice had been requested the day after Mr Turnbull became the Prime Minister but at the date of the last hearing, which was 19 October, that advice had not yet been provided. Has that advice now been provided?

Ms E Kelly : The advice was provided and the advice is dated 12 October.

Senator WONG: So why did you tell us it had not been? Sorry to jump in.

Ms E Kelly : I need to clarify that date on my briefing materials.

Senator McALLISTER: The transcript of your testimony, Ms Kelly, says:

The advice was sought the day after Mr Turnbull became the Prime Minister, and there has been a series of ongoing discussions between the Prime Minister and the secretary since that time. Some written advice has been provided; that advice was not final advice, and required some further work to be done. Those discussions are ongoing.

Ms E Kelly : That may well be why the advice is dated 12 October, as that was the initial written advice. What I can advise you is that advice was provided, and it was considered by the Governance Committee of cabinet on 9 November.

Senator McALLISTER: So there was advice provided on the 12th. Was there any subsequent advice provided?

Ms E Kelly : Written advice was provided for the purposes of the Governance Committee of cabinet.

Senator McALLISTER: On what date was that provided?

Ms E Kelly : It was considered by the Governance Committee of cabinet on 9 November.

Senator McALLISTER: Has the Prime Minister acted on that advice?

Ms E Kelly : I think the Prime Minister has indicated that his arrangements are in compliance with the statement on ministerial standards.

Senator McALLISTER: Has he restructured his interests in reliance on that advice?

Ms E Kelly : The content of the advice was considered by the Governance Committee of cabinet. It is not for me to speak about the content of matters considered by cabinet.

Senator WONG: No, she did not ask you about the content. We are asking whether, as a consequence of the advice, which we are not seeking—obviously we cannot—was any action taken by the Prime Minister in relation to his holdings? Any restructuring? Any dispossession? That is the question.

CHAIR: That goes to the advice itself—

Senator WONG: No, it does not.

CHAIR: which has been through cabinet. It should be protected by the cabinet.

Senator WONG: No.

Senator Brandis: I think we may say, Senator Wong, that the Prime Minister, having received the advice, observed it.

Senator WONG: Did that or did that not include any change to his arrangements?

Senator Brandis: I will take that on notice.

Senator WONG: Because I think what you are leaving open—and you may be deliberately doing it, Senator Brandis—and the department are leaving open is that there was no change to the Prime Minister's—

Senator Brandis: I do not know. That is why I have taken the answer to the question on notice.

Senator WONG: If I could finish. No change as a result of the advice. If you are deliberately doing that because there was no change, perhaps we should just be told that.

Senator Brandis: I have taken the question on notice because I do not know the answer.

Senator WONG: You are on the Governance Committee of cabinet, though.

Senator Brandis: Yes, that is right.

Senator WONG: It is a hardworking committee. Mr Robert's going there, too.

Senator Brandis: That is right. An advice was received, as Ms Kelly has said. It was presented to the Governance Committee, as you have been told. It was provided to the Prime Minister, as you know. I am sure the Prime Minister would have been observant of that advice. What steps he may or may not have taken consequent upon that advice I do not know, which is why I have taken the question on notice.

Senator McALLISTER: Senator Brandis, you will know that I am relatively new to this place, and other senators may already know the answer to this question, so forgive me if I am asking something that everybody else understands. What is the relationship between the Governance Committee of cabinet and the decisions of an individual member of cabinet in a question such as conflicts of interest? What does the Governance Committee rule on when it receives this advice? Does it provide direction?

Senator Brandis: I think, with respect, Senator McAllister, the word 'rule' is probably not the right characterisation. The Governance Committee of cabinet is a subcommittee of cabinet. The nature of the matters which it considers include, among other things, ministerial conduct, ministerial standards, observance by ministers, avoidance of conflict of the kind you have raised. So the Governance Committee of cabinet considered such matters and on occasions will receive advice.

Senator McALLISTER: I suppose I am just wondering when it receives that advice and it relates to a member of the cabinet what it then deliberates upon. Does it simply note the advice?

Senator Brandis: I was just going to say, strictly speaking, I would expect that ordinarily, when advice is received, the minute would say that the Governance Committee notes the advice or words to that effect.

Senator McALLISTER: Would that advice include an assessment as to whether or not the interests as disclosed of the current structuring of an individual's interest led them to be in compliance with or not in compliance with the code of conduct or the renamed code of conduct?

Senator Brandis: Not in my experience, Senator.

Senator McALLISTER: No?

Senator Brandis: Not in my experience. I do not exclude the possibility that, in a particular case, it could but I have been a member of the Governance Committee since the time of the 2013 election and, without revealing the deliberations of a cabinet subcommittee, the mode of procedure I am used is for the committee to receive advice.

Senator McALLISTER: Will the Prime Minister make this advice public?

Senator Brandis: That is a matter for him. I will take it on notice. I would not expect so. That is not the ordinary practice, but I will take the question on notice.

Senator McALLISTER: Ms Kelly, has the Prime Minister requested any updated advice from the department since the initial request on 15 September?

Ms E Kelly : In relation to?

Senator McALLISTER: Any conflict of interests that may arise for him associated with his duties and his interests?

Ms E Kelly : I am not aware of a request following the consideration of the matter by the Governance Committee on 9 November.

Senator McALLISTER: Did the Prime Minister receive any specific advice about his investments in managed funds which have significant holdings in 7-Eleven?

Ms E Kelly : Senator McAllister, I cannot speak to the content of advice provided to the Governance Committee of cabinet.

CHAIR: If it may help, I noted this the other day myself: this is simply an indexed fund that has no discretion—

Senator WONG: No-one is asking you a question, Senator. I respect your chairing, Senator Bernardi, but you are now answering questions.

CHAIR: Because it is a matter of public record. It is simply an indexed fund and to try to characterise it is as some sort of actively managed fund is completely erroneous.

Senator McALLISTER: Indeed, but it is a very—

Senator Brandis: I think we must say—I hope this is helpful, Senator McAllister—that it is hardly a secret that the Prime Minister is a relatively wealthy man. He has a lot of assets, including financial assets, and he was very conscious to ensure that there wasn't the possibility of a conflict of interest, which is why he sought the advice.

Senator McALLISTER: Given the significance of the policy issues associated with the 7-Eleven stores, has the Prime Minister sought advice in relationship to those holdings specifically though?

Senator Brandis: I think, Senator, you inquire into content of material that may or not have been before the Governance Committee of cabinet.

Senator McALLISTER: I do not suppose you will tell me whether the Prime Minister has been advised to divest himself of those holdings then?

Senator Brandis: Again, you are asking about the content of material that may or may not have been before the Governance Committee of cabinet. I cannot tell you that it has or that it has not, because that goes to deliberation.

Senator McALLISTER: Speaking, as you do, as a representative of the Prime Minister: is it the Prime Minister's intention to divest himself of those shares now that this issue has been brought to light?

Senator Brandis: It is the Prime Minister's intention—and this is why he sought the advice of which we have been speaking, shortly after being sworn as Prime Minister—to ensure that he avoided any conflict of interest.

Senator McALLISTER: So he does not intend to divest himself of the shares associated with 7-Eleven?

Senator Brandis: I cannot go beyond the answer I have just given you: the Prime Minister is very conscious of the importance of avoiding any conflict of interest, and that is why he sought advice in relation to that matter.

Senator McALLISTER: Thank you, Senator Brandis.

CHAIR: There being no time left, we will now adjourn the proceedings and resume tomorrow morning at 9 am with the Department of Finance.

Committee adjourned at 22:29