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Legal and Constitutional Affairs Legislation Committee
27/03/2015
Estimates
ATTORNEY-GENERAL'S PORTFOLIO

ATTORNEY-GENERAL'S PORTFOLIO

In Attendance

Senator Scullion, Minister for Indigenous Affairs

Executive

Mr Chris Moraitis PSM, Secretary

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

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

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

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

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

Access to Justice Division

Ms Kelly Williams, Acting First Assistant Secretary

Dr Albin Smrdel, Assistant Secretary, Courts Tribunal and Justice

Ms Joan Jardine, Acting Assistant Secretary, Legal Assistance

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

Ms Tamsyn Harvey, Assistant Secretary, Family Law

Civil Law Division

Ms Jane Fitzgerald, Acting First Assistant Secretary

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

Ms Cathy Rainsford, Assistant Secretary, Native Title Unit

Mr Chris Allen, Acting Assistant Secretary, Classification

Ms Petra Gartmann, Assistant Secretary, Legal Services Policy Coordination

Ms Toni Pirani, Assistant Secretary, Commonwealth Representation Royal Commission

Constitutional and Corporate Counsel

Mr James Faulkner SC, First Assistant Secretary

Ms Helen Daniels, Special Advisor

Corporate Division

Mr Stephen Lutze, Chief Financial Officer

Mr Justin Keefe, Assistant Secretary, Service Centre

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

Criminal Justice Division

Mr Iain Anderson, First Assistant Secretary

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

Mr Andrew Warnes, Director, People Smuggling

Mr Michael Pahlow, Assistant Secretary, AusCheck

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

Defence Abuse Response Taskforce

Mr Matt Hall, Executive Director

Emergency Management Australia

Mr Mark Crosweller AFSM, First Assistant Secretary

Ms Aaron Verlin, Assistant Secretary, National Disaster Recovery Programmes

Mr Chris Collett, Assistant Secretary, Crisis Coordination

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

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

Information Division

Ms Joann Corcoran, First Assistant Secretary

Mr Shaun McGuiggan, Assistant Secretary, Innovation Service and Delivery

International Law and Human Rights Division

Mr John Reid, First Assistant Secretary

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

Mr Paul Pfitzner, Assistant Secretary, Human Rights Policy

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

Mr Stephen Bouwhuis, Senior Counsel, International Law

International Crime Cooperation Division

Ms Catherine Hawkins, Acting First Assistant Secretary

Ms Alex Matthews, Assistant Secretary, Transnational Crime and Corruption

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

Ms Elizabeth Brayshaw, Acting Assistant Secretary, International Legal Assistance

National Security Resilience Policy Division

Dr Carolyn Patteson, Acting First Assistant Secretary

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

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

Mr Michael Jerks, Assistant Secretary, Critical Infrastructure Protection

Ms Wendy Kelly, Acting Assistant Secretary, Emergency Management Policy

National Security Law and Policy Division

Ms Jamie Lowe, First Assistant Secretary

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

Ms Anna Harmer, Assistant Secretary, Electronic Surveillance Policy

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

Mr Cameron Gifford, Assistant Secretary, Counter-Terrorism Law

People Strategy

Ms Robyn Black, Acting Assistant Secretary

Royal Commission into Institutional Response to Child Sexual Abuse

Mr Philip Reed, Chief Executive Officer

Royal Commission into Trade Union Governance and Corruption

Ms Jane Fitzgerald, Chief Executive Officer

Mr Mark Ney, Police Taskforces

Ms Sue Innes-Brown, General Manager, Corporate Services

Strategy and Delivery Division

Ms Sarah Chidgey, First Assistant Secretary

Ms Kathleen Denley, Assistant Secretary, Strategy Governance and Deregulation

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

Outcome 2—Participation in, and access to, Australia's arts and culture through developing and supporting cultural expression

Ministry for the Arts

Ms Sally Basser, First Assistant Secretary

Ms Asha Rajah-Clarke, Acting Assistant Secretary, Access and Participation

Ms Lyn Allan, Assistant Secretary, Creative Industries

Ms Rebecca Rush, Acting Assistant Secretary, Collections and Cultural Heritage

Dr Stephen Arnott PSM, Assistant Secretary, Arts Development and Investment

PORTFOLIO AGENCIES

Australian Human Rights Commission

Professor Gillian Triggs, President

Ms Julie O'Brien, Director, Legal

Ms Megan Mitchell, Children's Commissioner

Ms Padma Raman, Executive Director

Committee met at 13:05

CHAIR: I call back—no, I don't. I declare open this session of the Legal and Constitutional Affairs Legislation Committee dealing with the further estimates. This is a separate hearing from the one this morning. We will be dealing with the Australian Human Rights Commission and finishing with the Attorney-General's Department, what we have not dealt with already.

The Senate has referred to the committee the particulars of the proposed expenditure for 2014-15, for the portfolios of Attorney-General and Immigration Border Protection and certain other documents. The printing may also examine the annual reports of departments. The committees fixed the close of business as Friday, 1 May as the date for return of answers to questions on notice and fixed 1 April for senators wanting to get in a written question.

The committee proceedings will examine the Attorney-General, which I have already mentioned. I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege and it is unlawful for anyone to threaten or disadvantage a witness on account of the evidence given to the committee. Such action may be treated as a contempt by the Senate. It is also a contempt to give false and misleading evidence to a committee. The Senate has resolved the following test of relevance of questions of estimate hearings: any question going to the operations of financial positions of the department and agencies that are seeking funds and the estimates are relevant questions for the purpose of the estimate.

I remind all 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 to the parliament or its committees unless the parliament has expressly provided. Senators resolve that officers of the department should not be asked to give opinions on matters of policy and they should be given reasonable opportunity to refer questions to superior officers or the minister.

I repeat the discussion we had earlier about the claim for public-interest immunity. The Senate has resolved that witnesses are specifically reminded that a statement that information in a document is confidential or consists of advice to government is not a statement that meets the requirements for 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 information. We have been through that this morning. I think everyone is clear about that now.

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)

I welcome back Senator Scullion, filling in for the Attorney-General, Minister for the Arts, who it has been indicated is at the late Mr Fraser's funeral. I welcome officers back from the Australian Human Rights Commission. Before we start, a request has been made to the committee via the secretariat for the media to film some parts or all of this proceeding. Does anyone have any objection, and do any of the witnesses have any objection?

[13:09]

Senator O'SULLIVAN: Can I ask the genesis of the request, where that has come from?

CHAIR: When the media want to come in here, it is a convention if not a rule of the committee that they are not allowed here unless that committee gives them—

Senator O'SULLIVAN: I understand that, but this is a request by media not by any other party.

CHAIR: Yes, by media.

Senator MOORE: I did not ask for it.

Senator O'SULLIVAN: That is alright; I just wanted to be sure, Senator.

CHAIR: For media, there is an area roped off, which I cannot quite see; it is over there, anyhow. The genesis of this hearing, as senators will recall, is that we were examining the Australian Human Rights Commission at the last estimates. The examination had gone on for many hours, and the committee decided to offer to the commission's president the option of suspending the hearing, and so we adjourned. We did indicate to Professor Triggs that she would have an opportunity to respond to matters that the Attorney and the secretary had raised. I should also mention in passing that we did indicate that the adjourned hearing would be today but, regrettably, two commissioners could not attend today. Professor Triggs could attend this afternoon. Another commissioner has indicated that he has other engagements, although he did not indicate what that engagement was or when it was made. I have indicated that I will question those aspects later on.

Senator JACINTA COLLINS: On that point, I would like to know what happened with Mr Wilson's appearance. I think we made a request for him, and he was not available on the Monday, but I am not sure why he is not appearing today.

CHAIR: I am not sure that we did ask him. By coincidence, I happened to run into him in a corridor last night, and I asked, 'Are we seeing you tomorrow?' He said: 'I'd love to be there, but nobody has asked me.'

Senator JACINTA COLLINS: I think it was the government senators who requested his appearance on the last occasion. I am not sure why he is no longer wanted.

CHAIR: Apparently we did not ask him this time. I am not sure that I wanted him and I am not sure whether either of my colleagues did, but he was in Canberra last night.

Senator O'SULLIVAN: I thought other commissioners were available for this hearing today. Is their unavailability a recent circumstance? Did they notify us shortly after the 27th that they were not available?

CHAIR: I requested Commissioner Soutphommasane to be here. I am not sure whether other senators requested other commissioners. I assume that if any senator wanted a particular commissioner to be here we could have requested it.

Senator WRIGHT: I did. I am keen to know whether I will have 15 minutes with the Children's Commissioner, whom I requested. I think it is the third attempt, and I want to know that I can ask my questions in the time available.

CHAIR: Over to you, Professor.

Prof. Triggs: Thank you, Senator Macdonald. Can I begin by correcting your original statement, and that is that I did not request that the eight hours of questioning be terminated. It was offered as one of several options. In light of the extreme length of that questioning period, I felt it was appropriate for everybody and I accepted that offer, but it was not proposed by me.

CHAIR: I would like to clarify that. I do not think that I suggested that it was. I thought that I suggested that, as occurred, the committee at a private meeting decided to offer to adjourn the proceedings because of the length of time. I understood that offer was put to you by the secretary and you accepted it.

Prof. Triggs: I think the record needs to be corrected, in that case, because your initial statement was not to that effect.

CHAIR: I will check that. I would be very surprised, but if that is the case then those are not the facts, and I would correct it myself. I think you will find a reading of the Hansard would indicate that the committee decided and offered it to you, which you accepted.

Prof. Triggs: That is the correct statement now—thank you, very much. With regard to an opportunity to respond to the Attorney's comments and the secretary's made towards the end of that testimony, on reviewing the Hansard record and the materials that we have handed to you it is quite clear that many of those statements were flawed and inaccurate, and I don't see a need to repeat what I have already said on numerous occasions. What I would like to do, however, rather than making any further statements, is to hand up the answers to the questions on notice that were asked at the last, eight-hour, session, which are not technically due to you now but we thought it might be helpful for the committee to have those answers before them today.

Senator JACINTA COLLINS: Professor Triggs, can I just clarify, when you talk about the materials handed to us, what you are referring to.

Prof. Triggs: If we go back in history to the first of the Senate hearings, in early February, which, again, lasted for a considerable time—I think about five hours—there were a number of questions that were asked at that time. We produced a considerable volume of materials for this committee to read in anticipation of the second session, which was held just about three weeks or so ago. We have a formal letter from us of 10 December responding to earlier questionings and we had a very considerable body of documentation that explained and provided answers to the questions. We had hoped for the last session that committee members would have read those papers to inform their questions more accurately and to enable the time to be rather more constrained rather than repeating the answers that were already available on the evidence to you. We are hoping for this, third, round that those documents have been read.

Senator JACINTA COLLINS: But, apart from what is just now being circulated and what has previously been before us, there aren't further documents?

Prof. Triggs: No. In other words, we are giving you a little earlier than technically required the answers, just to assist you in asking your questions and to be sure that you have as full a record of events as you possibly can have.

Senator JACINTA COLLINS: Thank you.

CHAIR: That is all you wanted to say?

Prof. Triggs: Yes. I and my colleagues are open to questions.

CHAIR: Thank you, very much, for that. Thank you for this material. I suspect it is not going to be a lot of use to us today as it may take some time to look through and digest, but thank you anyhow. Can I start by asking what your engagement this morning was. Can I indicate that if it was a personal or private commitment, a family commitment, that it is none of my business. But if it was a commitment in the line of your role as president of the commission could you just tell us what it was.

Prof. Triggs: Yes. I, as president, and the commissioners and other members of staff have many, many commitments across a year, usually made many months sometimes a year in advance. My particular commitment that you referred to was accepted by me on 6 February. It was, I believe, to the Law Institute of Victoria to give a presentation. That invitation I had accepted on 6 February, but in light of your request that we appear before this committee I cancelled that speaking engagement. In the meantime, of course, I would very much like to have gone to the funeral of Mr Fraser, but I did not. I have, of course, attended this committee as requested.

CHAIR: So you did not give that address to the Law Institute this morning.

Prof. Triggs: I cancelled it because I was advised that you required my presence. As we are normally on at nine o'clock in the morning we assumed that I had to cancel it, so I did.

CHAIR: I am not sure what has happened here, but we did ask you to appear at nine o'clock this morning. When you indicated you had that commitment we then rearranged the whole schedule so that you could appear this afternoon. In fact, your office, as I understood it, indicate that you could not be there this morning but you would attempt to get here this afternoon. I was just about to indicate my gratitude that you got yourself here after this morning's engagement and are here to speak to the committee today. We were told that you were not available at nine o'clock and, accordingly, we rearranged the whole program.

Prof. Triggs: That was the position. Indeed, had I gone forward with that commitment made some months earlier I would have missed a one o'clock appointment or after-lunch arrangement here, so I had to cancel it. The timing was not sufficient to me to meet the commitment I had in Melbourne and then to fly here in order to be at Senate estimates, so I had to cancel it.

CHAIR: That is fine, but it was indicated to us that you were going to it and that you were then going to catch a late-morning plane to get here so that you could be with us this afternoon. Somewhere along the line obviously the arrangements have become confused. But it is good that you have clarified it, I guess.

Senator JACINTA COLLINS: I was just going to ask—and I think the secretariat is looking at this as well—if we might track what record of communication there was after the letter you wrote to us, because when you wrote to us and said that you had a previous commitment in the morning we sought, as the Chair has indicated, to arrange the program so that you could still attend. But it seems that message was not conveyed effectively. We were advised that if you attended the 9.30 event in Melbourne you could still be here by one o'clock.

Prof. Triggs: I will ask the executive director, Padma Raman, to respond to that.

Ms Raman: The only communication we got from the committee was the official program listing us at one o'clock. We did not get anything from the committee apart from that.

Senator JACINTA COLLINS: I apologise for that, but I indicate that it is not the first occasion we have had some communication mishaps. I genuinely think that it is a matter the Senate needs to consider when resourcing our secretariats.

CHAIR: I will add that that is not a reflection on the Senate secretariats, who do a magnificent job. I have not brought it with me, but I thought we had a letter from Professor Triggs indicating that she had the commitment in the morning but that she would be able to make it here for the afternoon session. Does anyone have Professor Triggs's letter?

Senator O'SULLIVAN: May I ask a question, Chair, on that point?

CHAIR: Yes, go ahead.

Senator O'SULLIVAN: Ms Raman, wouldn't it follow that for us to be advised that Professor Triggs was not available it had to be in response to a request from the secretariat for the Human Rights Commission to appear here at nine o'clock?

Ms Raman: I rang the secretariat to check whether a date had been confirmed. Before the date was confirmed, I rang the secretariat to ask, 'What is the possibility that it will be on 27 March?' They said that there was some possibility still that there would be a spillover day. I said, 'Professor Triggs has an appointment that day,' and the secretariat advised that we write formally to the committee and let the committee know of her engagement and ask that you consider it while you were scheduling the hearing today.

Senator O'SULLIVAN: So it is your evidence that never had you or Professor Triggs had to deal with a request from the secretariat for the Human Rights Commission to appear at the commencement of today's hearing?

Ms Raman: No. We did not receive anything to say we had to be here at nine o'clock today.

CHAIR: At the last hearing of the committee when we decided to adjourn the examination of the commission I indicated publicly to the committee that we would be meeting on 27 March, all things being equal. The letter from Professor Triggs dated 11 March, which we now have, was addressed to me. It says, 'I understand that an additional estimates spillover day has been confirmed for 27 March. I have a pre-existing speaking engagement in Melbourne from 9.30 to 10.30 on that day. I request that my pre-existing commitment is taken into consideration when drafting the program for the day.' That is, of course, what we did, expecting that Professor Triggs would be meeting her commitment between 9.30 and 10.30. I did not check the airline schedules myself. I thought it would be some tight timing. But that was the indication. Had we known that Professor Triggs was cancelling that, we certainly would have had this session this morning. That would have saved a number of private meetings we have had to try to accommodate these hearings today.

Senator JACINTA COLLINS: And some gymnastics!

CHAIR: Yes, and some gymnastics! Anyhow, I guess that clarifies that for me.

Senator JACINTA COLLINS: Can I add one thing to that. I think the stage when we were consulting the Attorney on dates for potential spillovers and then went back into session was a point in time when the commission was no longer with us. So they did not necessarily hear what was indicated, if it was indicated on the record at the time.

CHAIR: Perhaps that is correct. Thank you for that explanation. As I say, that has clarified it in my mind. Does the executive director have any idea of the arrangements of Commissioner S—

Prof. Triggs: Dr Soutphommasane?

CHAIR: Yes. Do we know where he is today?

Ms Raman: Yes. He had a consultation with the Channel 7 board over lunch. It was organised many months ago. He did ask that I take questions to him on notice so that he could provide the committee with a full response. But I can certainly say that the date was confirmed on 3 March, before we had confirmation for 27 March.

CHAIR: So he has a consultation with Channel 7?

Ms Raman: The board of Channel 7. It was many months in the making. It is a consultation in relation to his 'Racism. It Stops With Me' campaign.

Senator JACINTA COLLINS: How often does the board of Channel 7 meet?

Ms Raman: I am not sure.

Senator JACINTA COLLINS: Once every month? Once every two months?

CHAIR: Well, anyhow, I can only ask the question. Thank you for providing that answer. You say that that arrangement was made before 3 March?

Ms Raman: It was confirmed on 3 March. We got confirmation for the spillover date on 5 March.

CHAIR: I can take that no further. It was I who asked the commissioner to be here.

Prof. Triggs: I think you are referring to Dr Soutphommasane.

CHAIR: That commissioner, yes. I will leave it until the next estimates to ask my question. It is not the sort of question I can really put on notice, although I think I have written to him. The question is related to a request that a constituent had made of the commissioner that he had not received an answer to. But I shall follow that up with him next time.

I think I indicated to the commission that I would be raising the question of Mr Basikbasik. I wonder if the commission could give some further explanation of that recommendation of compensation of $350,000 for this man's incarceration following his conviction, as I understand, for manslaughter for killing his wife and child. Could someone give me the parameters of that and tell me what it was about and what the recommendation was.

Prof. Triggs: Before I answer that question I would like to correct the record of Hansard again. Senator O'Sullivan does seem to be rather confused; I am not the Human Rights Commissioner, I am the president of the Human Rights Commission. With regard to the Basikbasik case, my job as president is to make findings and recommendations which are discussed with the government and a report is finally made to parliament, along with scores of other such reports. The government has the option of appealing against my findings and recommendations, and has chosen not to do so. In fact, it very rarely does so. With regard to the Basikbasik case, can I also make the point that that case is before you in parliament, and has been for many months. I would very sincerely hope that you read my reports on these extremely serious cases.

It is not usual for a president of the Australian Human Rights Commission to repeat the legal analysis and application of facts to that legal analysis in the public arena. Normally it would be for members of parliament to read my reports, to question them if they chose to and, if appropriate, through the Attorney, to appeal against them. That has not been done, and unfortunately the choice has been made to do so in the pages of a particular newspaper, where the facts and legal reasoning were grossly misstated. I do not intend to engage in a public discussion about the case, the details and analysis of which are before parliament and have been before parliament for a very long time.

However, as you may be well aware, I have done an opinion piece because I felt that, while it is very unusual for the president to speak in public about findings and recommendations that are appealable and are before parliament to read, perhaps times are changing. It has not been done by predecessors of mine, but I think times are changing and that the public does want some answers to the questions that you have quite properly put. In that opinion piece I did explain what the facts were, what the legal reasoning was, the reason in my view that the Australian government was in breach of our international obligations and what the consequences should be. If I may say so, perhaps in parenthesis, that opinion piece did seem to answer the questions of many members of the public. It may be that, in appropriate cases, I will be willing to speak a little bit more openly in the public arena about the reasoning behind these cases.

To return to the Basikbasik case itself, I would ask you to read the report before parliament. I think that explains very adequately why I made the findings. Perhaps I will again repeat what I have said now in the public arena and before parliament—that is, that Mr Basikbasik had been convicted of manslaughter. He is a refugee and cannot properly be returned to Indonesia without breaching Australia's non-refoulement obligations. He served virtually the entire period of his sentence for manslaughter; it was a case in which the court had given him two-and-a-half years of non-parole period, but he did in fact serve the entire term. On completion of that term he was then detained again by the department of immigration and held for what is now close to eight years without charge and without trial. The legal reasoning behind that, and my findings that this was a breach of article 9 of the International Covenant on Civil and Political Rights is that, while the government has an executive power to detain someone if they believe—or whatever the grounds might be—that executive power must be exercised in a way which is necessary and proportionate to achieve a legitimate aim. So far as the law—the jurisprudence—in relation to arbitrary detention is concerned, it is at least required that the minister consider whether proper management plans have been developed and whether some proper and independent consideration has been given to whether or not he should have or could be considered for an alternative method of detention or supervision. In other words, we of course accept the executive power of the government to hold somebody if the government believes that there are adequate reasons for doing so. Our concern from an international human rights perspective, which of course is our job, is that that decision should be subject to consistent and fair and impartial review at appropriate periods of time. I think most fair-minded Australians would say that to hold a man for eight years after he has served his full prison sentence is something that does require at least the regular consideration of his case and regular consideration of whether or not alternative forms of detention supervision might appropriately be used.

Senator Macdonald, you have asked a question that the public have asked, and it is a fair question—that is, why was a compensation recommendation made of $350,000? That was based on the then period of about seven years during which Mr Basikbasik was held. We make our compensation proposals consistently with the law of course and we do it on the same principles as the Federal Court—in other words, wherever there is a case of wrongful imprisonment before the Federal Court they will, broadly speaking, assess it according to certain principles of compensation payments and we use exactly the same principles. I appreciate that the public want to know how the sums are computed, but I think again a fair-minded person would say that for being held now for eight years without a charge, without a trial and without consideration as to whether alternatives could be considered for this man, especially in the eyes of the psychiatrist's evidence that a management plan had not been developed for him, the compensation proposed was reasonable.

May I finish by saying that not only does the government choose not to appeal my findings and recommendations but the compensation sum has not been paid and indeed they are almost never paid by the government. We think it is disappointing but nonetheless I think the key point that any lawyer would make, most particularly perhaps one concerned with the International Covenant on Civil and Political Rights, is that nobody may be detained at the discretion of the government without a proper process to review that detention. If the person is judged to be a danger to the public, that may be a judgement that is an entirely appropriate one but it is one that must be subject to proper supervision.

CHAIR: Thank you, Professor Triggs. After indicating that you were not going to talk about this and this was not your normal case and you urged us to read the report, I am glad you took up my offer for you to actually explain it, which you have now done in spite of your earlier protestations. Can you confirm for me the nature of the offence with which Mr Basikbasik was charged?

Prof. Triggs: I will ask the director of legal office within the commission to give you those details. They are of course in the parliamentary report that has been submitted to you.

Ms O'Brien: I am sorry, Senator, I did not hear the question.

CHAIR: Let me be more specific. Was he charged with murder for bashing his 28-year-old pregnant wife to death with a child's bicycle? Is that an accurate report?

Ms O'Brien: That was not the subject of the commission's inquiry. The commission's inquiry—

CHAIR: That is not my question. You are saying you do not know what the charge was. So you have done an investigation into this man but you have taken no interest in what the original charge was, what his predisposition was?

Ms O'Brien: That is not an accurate statement.

CHAIR: Sorry?

Ms O'Brien: Your statement was not an accurate one.

CHAIR: I am asking you: what was his offence?

Ms O'Brien: If the offence is set out in the report, we can take it on notice. I can just check it for you now. It was not the subject of the commission's inquiry but, if it is set out in the report, I will let you know.

CHAIR: So you have made this recommendation and no-one from the commission knows what he was originally charged with and which, no doubt, figured prominently in the minds of those who have decided to keep him incarcerated?

Prof. Triggs: I have already in quite a lengthy—sorry, Senator Collins.

Senator JACINTA COLLINS: I was just saying to the chair I am not sure that that is what had been indicated.

Ms O'Brien: I can answer your question, Senator. In May 2000 Mr Basikbasik was charged with the manslaughter of his de facto spouse. He was convicted of the offence and was sentenced to seven years imprisonment with a non-parole period of 2½ years. He served that sentence of imprisonment.

Senator JACINTA COLLINS: So it was not murder; it was manslaughter.

Ms O'Brien: Manslaughter.

CHAIR: Do you have any details of what seems to me, according to media reports, to be quite a horrific offence? The wife I understand was pregnant and she was bashed with a child's bicycle, according to media reports. I am simply asking you whether that is correct or not.

Ms O'Brien: It is not appropriate for me to go into the details of the criminal proceedings. It was not a matter that was before the commission.

CHAIR: The nature of the offence did not figure at all in the commission's consideration of its report?

Ms O'Brien: The nature of the offence is recorded—yes, it is—in the commission's report. But the details of the criminal prosecution are something separate. You would have to go to the remarks of the sentencing judge.

CHAIR: This is why I am raising it with you. You say I can read your report. We might as well cancel estimates if that is the answer we are going to receive. The answer to every question we ask here is, 'You can read it in the budget papers,' if you have years to bother reading that particular budget paper. That is why we have these hearings—so we can investigate matters and get some further explanation.

Ms O'Brien: With respect, this is something different. These are—

CHAIR: Oh, is it? Okay.

Ms O'Brien: decisions that are subject to judicial review. For that reason, the commission does not think it is appropriate to paraphrase a decision, or put into different words. The commission, in those circumstances, could open itself up to a judicial review claim. That is why the commission puts the document up on its website after it is tabled in parliament; it releases a short, accurate media statement; and it usually makes no further comments.

CHAIR: Ms O'Brien, in these committees we try and look after the taxpayers' money. A recommendation has been made by your commission that this man receive $350,000 of taxpayers' money and perhaps even more, from what the president said, when it seems to the ordinary Australian—and to me, I might say—that that is an outrageous suggestion. I am trying to give you the opportunity to allay my suspicions and fears, and that is why I am asking you about the man. I was going to ask: what were the 40 infractions that, it is reported in the media, this man allegedly was involved in? Are you going to tell me you have not investigated those either?

Ms O'Brien: In responding to the first part of your question, the commission has the power to make recommendations in relation to compensation. These are neither binding nor enforceable, nor have they been paid. So the concerns in relation to the taxpayer are somewhat allayed in that respect.

CHAIR: Are you saying to us—

Ms O'Brien: The report is also subject to judicial review. In terms of the second part of your question, which I think is about how the recommendations for compensation are somehow tied to Mr Basikbasik's prior criminal history, there is not a relationship. The recommendations for compensation are in relation to the seven years for which, we made a finding, he was arbitrarily detained, not in relation to a prior criminal history. So he served his sentence of imprisonment—

CHAIR: Well, I have asked you what the 40 infractions reported were.

Ms O'Brien: They bear no connection whatsoever to the sum that was recommended for compensation.

CHAIR: So neither his original offence—

Senator O'SULLIVAN: That was not the question.

Ms O'Brien: I am sorry. Please ask the question again.

Senator O'SULLIVAN: What were the 40 infractions?

CHAIR: What were the 40 infractions?

Senator WRIGHT: Chair, on a point of order: just so that it is very clear what you are asking, you are referring to an alleged 40 infractions from a media report?

CHAIR: Yes.

Senator WRIGHT: So how can you expect the director to be answering with any certainty, even if it were relevant, if you are only relying on a media report that we have not seen here? What is the basis of that?

Ms O'Brien: [inaudible]

CHAIR: Let me just—

Senator O'SULLIVAN: Senator Wright, you have done it yourself.

CHAIR: Well, the fact that the Greens do it all the time is irrelevant! That is not the—

Senator WRIGHT: Previously—

Senator O'SULLIVAN: You have done it yourself.

Senator WRIGHT: Previously—

CHAIR: Hang on. You have raised the point of order, and I will respond. I am simply indicating to these witnesses that this is what has been reported. I am giving them the opportunity to say, 'That's wrong; don't believe the media reports,' or, if it is accurate, what were those infractions?

Senator WRIGHT: How do they know what is reported in the media?

CHAIR: They have spent quite a considerable amount of time, obviously, looking into this person and recommending that he should be given $350,000 of taxpayers' money.

Senator WRIGHT: Perhaps you could refer to the newspaper or the article so that they can be clear, in any event, what that is.

Senator O'SULLIVAN: Point of order, Chair.

CHAIR: It is not a point of order.

Senator O'SULLIVAN: No, I have—

CHAIR: No, I mean Senator Wright's is not a point of order.

Senator O'SULLIVAN: I have a point of order.

CHAIR: Yes?

Senator O'SULLIVAN: In earlier proceedings today, Senator Collins cited, most appropriately, the relevant provisions of the standing orders with respect to the obligations of witnesses to answer questions as provided. We are receiving advice that the commission will choose what they might answer and otherwise not, when the only position to be declared is the public interest position, which can only be declared by the minister at the table. This will go on for a long time if there are questions and we are dancing around wanting what I think are very valid questions; they are very estimates related. I think the witnesses should be instructed to answer the questions unless—

Senator Wright interjecting

Senator O'SULLIVAN: hold on; I am not finished, Senator Wright—unless they are able to satisfy the minister that there is some public immunity consideration.

CHAIR: Without ruling in precision on your point of order, generally what you are saying is correct, Senator O'Sullivan, and that is why I am putting this to the witnesses. Do you have any idea of the infractions that Mr Basikbasik is alleged to have committed when he was in detention?

Ms O'Brien: When he was in detention?

CHAIR: Yes.

Ms O'Brien: Sorry, I thought you were talking about his prior criminal history.

CHAIR: Well, you have already told me that. I am after the 40 infractions.

Senator JACINTA COLLINS: That occurred during which period?

Ms O'Brien: When? Could you refer me—

CHAIR: You have spent simply weeks and months investigating this.

Ms O'Brien: Sorry, I just do not know the time frame or what 40 infractions you are referring to, Senator.

CHAIR: Well, tell me: have you heard of any 40 infractions that Mr Basikbasik has committed?

Ms O'Brien: At what point in time?

CHAIR: At any time.

Senator O'SULLIVAN: Oh, dear. This is starting to become farcical.

Ms O'Brien: I am sorry; you would have to make the question more specific so I could answer it, Senator.

CHAIR: You have never read a newspaper report or heard from anyone that there have been 40 infractions?

Ms O'Brien: Not that I can recall.

CHAIR: How long did you spend investigating Mr Basikbasik?

Ms O'Brien: The report was sent to the Attorney-General in June 2014.

CHAIR: That is not what I asked. How long did—

Ms O'Brien: I would have to take on notice the period of the inquiry.

CHAIR: Was it months, days, hours, minutes, years?

Ms O'Brien: Complaints are investigated through the investigation and conciliation section. When they cannot be resolved by conciliation and they think they may result in a breach of human rights they are then transferred through to the legal section.

CHAIR: Professor Triggs has issued the report. Perhaps she could help us with how long the assessment, the report, into this gentleman continued.

Prof. Triggs: Cases of this kind take many months, in part because we have to get the facts right and in part because we attempt to negotiate with the government.

CHAIR: Professor Triggs, that is an interesting comment. My question—you answer whatever question you like in your own time; in my time, please answer mine—is: what period of time did your investigation proceed over?

Prof. Triggs: I would have to take that on notice.

CHAIR: Well, can you give me a hint?

Prof. Triggs: I have just explained to you, Senator Macdonald—

CHAIR: Was it years?

Prof. Triggs: it would take months. I do not think it took years; it would take months. I have answered that question twice now. That is quite clear. The exact dates we will be very happy to give you. When we get back to the office, we can tell you when we received the complaint—

CHAIR: So you have spent months doing this, but you still cannot tell me what the infractions were—whether there were 40, 39, 41, or what they were about?

Ms O'Brien: That is just not an accurate statement, Senator. The detail is set out in the report for you to read in terms of the criminal offences that Mr Basikbasik—

CHAIR: So is all the budget set out for me to read, but I am afraid I do not have that time.

Ms O'Brien: Well, I am sorry, if you are referring to documents that were in a media report presumably earlier this year, after months—

CHAIR: Well, you have never heard of 40?

Ms O'Brien: Not that I can recall, Senator.

CHAIR: All right. Thank you. Senator Collins?

Senator JACINTA COLLINS: I have only two questions related to the Basikbasik case, but Senator Moore has some other questions in another area that I will defer to after that if there is sufficient time. Professor, you make the distinction between your position as being president as opposed to being Human Rights Commissioner, I understand, for a point, and that point relates to your statutory obligations that would apply in a case such as Mr Basikbasik's. Would you care to outline those?

Prof. Triggs: The crucial point is: if I were Human Rights Commissioner, which I am not, I would not have the power to deal with these complaints. The entire complaints process is at least a third of the work of the commission—we receive about 21,000 inquiries and about 2½ thousand complaints a year. The findings and recommendations are ultimately and exclusively for me as President, and that is why the point of distinction is important to understand.

Senator JACINTA COLLINS: You used the word 'power', but is it not the more than that—is it not a responsibility?

Prof. Triggs: Certainly.

Senator JACINTA COLLINS: Is it a requirement in the provisions of the act?

Prof. Triggs: Indeed.

Senator JACINTA COLLINS: You indicated that compensation is calculated consistent with Federal Court criteria—I do not want to verbal you—but on several occasions in the past they have not been met. It seems to a number of senators that it is unheard of that compensation would be recommended. From what you seem to be saying, there have been several occasions when former presidents have recommended compensation but it has not been met by whichever government was in power. Could you elaborate on that point?

Prof. Triggs: First of all we have a power to make to make compensation recommendations, once I have made a final finding—

Senator JACINTA COLLINS: Is it a power or is it a requirement?

Prof. Triggs: It is a power. As you will appreciate, any matter that concerns a legal judgement, you usually exercise that power to recommend the compensation payment. That would be normal procedure, and it has been the procedure of the commission for 30 years. As far as I am aware, it has never been questioned. Your precise question is: is usual for us to make compensation recommendations? The answer is 'Yes.' Every time we find a breach of Australia's human rights obligations, we invariably make a recommendation. It may be that sometimes financial compensation is not appropriate. We do in a number of matters actually recommend an apology or some written statement—sometimes it is in the private sector and it is worked out within the business that is involved or with the government. That is absolutely normal procedure.

Senator JACINTA COLLINS: Could you take on notice the details of compensation recommendations that have been made? Can you tell me how onerous the length of time might be for compensation of a financial nature?

Prof. Triggs: We can give you a complete list of every one of our decisions in which compensation payment has been recommended.

Senator JACINTA COLLINS: And quantum of that?

Prof. Triggs: Indeed, with the precise amounts that I have recommended. I am very happy to do that.

Senator MOORE: You complete your investigation; it goes to a legal process if there is no agreement; once it has gone to the legal process, you have the power to finalise the determination and make a recommendation. Who has the power to approve or deny that recommendation? How do you find out about that? Does it go into a void after you have finished with it?

Prof. Triggs: As President, I make the final findings and I make the final recommendations, and they go to the government. They are reported to the government in a formal printed report.

Senator MOORE: We see those reports; they are tabled. Are they provided to the minister?

Prof. Triggs: Through the Attorney.

Senator MOORE: And the decision on compensation?

Prof. Triggs: That is a matter for the Attorney, but I should say that it is a collaborative process. We get a complaint; we investigate it; we might contact the relevant department against which the complaint has been made; we work it through with them; we issue a preliminary view. The relevant department can come back to and say: 'We do not agree with those views, because either you have the facts wrong or the law wrong or we disagree on that.' There is a little bit of that going on until finally, if we absolutely cannot resolve the matter, then with legal advice I make a final set of findings and recommendations. They are then reported formally to the Attorney and they go to parliament in a printed form. But I would like to ask my colleague, if I may, if there is anything there that I have said that is not entirely right.

Ms O'Brien: No. That is all absolutely right. There is just one further step in the process, which is that, once the president has made her recommendation as to compensation—or whatever recommendation it might be; it might be a change of policy—it is sent to the respondent, if you like, so it would be the appropriate minister, in this case the minister for immigration, or the secretary of the department of immigration. We have a statutory obligation to report to the Attorney what action, if any, they propose to take in response to the recommendations. They may say, 'Thank you very much for your recommendations; we propose to do nothing further,' or 'Thank you very much for your recommendations; we propose to change our policies in this way.' We include that in the final report to the Attorney that is tabled in parliament. So they get a complete picture of what action the respondent, if you like, proposes to take in response to the president's recommendations.

Senator MOORE: And in this case?

Ms O'Brien: They did not—

Senator MOORE: They proposed to do nothing?

Ms O'Brien: Yes.

Prof. Triggs: And, in doing nothing, that implicitly means that they have chosen not to appeal against my findings and recommendations. In other words, if I could elaborate, we are just the first step in this process. We are not judicial, but we simply attempt to conciliate the matter. That is really the positive outcome of much of our work—to conciliate and to ensure that systemic wrongs or breaches of the law are resolved before they ever get to the courts. And we do resolve 70 per cent of the matters that come to us, but there are some where we do not get agreement, and this would be an example of that, where the government simply took a different view of the law but nonetheless chose not to appeal my findings and recommendations.

Senator MOORE: A point you have made a couple of times.

Prof. Triggs: Yes.

Senator MOORE: In terms of the discussion that came around your recommendation that went through, was there significant discussion between yourself and the Attorney around that?

Prof. Triggs: They are not personal discussions between me and the Attorney but between the relevant officials of the two.

Senator MOORE: That is what I meant.

Prof. Triggs: Absolutely. As I say, it is intended as an entirely positive process, first to get the facts right, to try to understand what is going on, and to resolve it if it is a systemic problem. But, where we have simply a disagreement on the interpretation of the law, then it has to remain in that state.

Senator MOORE: And the final delegation decision is with the minister?

Prof. Triggs: Exactly, yes. Thank you very much.

Mr Reid: Just to clarify from the government's point of view, in terms of responsible ministers and in relation to the Basikbasik matter, that report related actions of the department of immigration, and the department of immigration led on correspondence and discussions between the government and the commission. The Attorney and the department did receive a copy of the final report, as the commission says, but, in terms of the responsible minister for those recommendations and responding to those recommendations, it sat with the department and the minister.

Senator MOORE: So the decision and delegation were with the immigration minister.

Mr Reid: I am not sure if I would call it decision and delegation. I would say they were responsible for the portfolio issues that were affected by the recommendations in that decision.

Senator JACINTA COLLINS: But the Attorney-General would have received the draft as well?

Mr Reid: We did receive a draft.

Senator JACINTA COLLINS: But you would not ordinarily respond to it. It would be left to Immigration. Yes?

Mr Reid: I am not sure whether we might have led on behalf of Immigration. I am not sure, going back that far. But, because all of the recommendations related to the department of immigration's portfolio, it would have been them that provided any of the substance and probably led on the correspondence.

Senator MOORE: I am the one who always asks for graphics that show 'box goes to arrow goes to box'. In this case, after the process internally with the Human Rights Commission, it would have gone to the department of immigration, because that was the only ministry. Then the discussion would have been anything back between Immigration and the Human Rights Commission, but then at the end of the process Immigration would have given an arrow through to your minister, because the commission actually reports finally to the Attorney-General.

Mr Reid: The final arrow would have actually come from the commission to the Attorney.

Senator MOORE: It would be really useful to see. Basically I just wanted to get clear who made the determination about this particular recommendation. I have some questions for the Children's Commissioner if I have got time.

Senator JACINTA COLLINS: We got five minutes.

CHAIR: And we can come back.

Senator MOORE: I am sure Senator Wright has questions, and we can play with those. Commissioner, I have some questions around your job generally, but I am particularly interested in the work you did in the report about child safety and self-harm. I have a particular interest because the Senate community affairs committee did the inquiry into suicide and a lot of the information came across. I am interested in the recommendation you had about data and the data collection in this process. You clearly stated that it was very difficult in your work because the data was—I am not going to verbal you—not consistent across the board. Some areas did not have a database. Can you give us a little bit on record about the importance of this data, and also where your recommendations are going to in that area?

Ms Mitchell: Certainly. One of the main findings from this work, and it is evidenced in other areas of child wellbeing as well, is that there is limited available information to adequately monitor child welfare. For instance, prior to me undertaking this work last year into self-harm and suicide among children, the only data available for suicide statistics was in a large age cohort of 15 to 24. The experience of a 15-year-old is very different to a 24-year-old. In fact, the policy interventions you could mount are in different spaces and locations clearly: a 15-year-old is at school, generally; a 24-year-old is not. It was really important for me—as national Children's Commissioner, my remit is children nought to 18. It was impossible to get that information, or even information broken down in smaller age cohorts that would be useful to policy development. That was one of the major issues, so I sourced and paid for additional data from AIHW and the ABS and the national coronial information system. The Kids Helpline was able to give me data for free. They are a fantastic organisation.

Senator MOORE: You actually made the point that the data they provide to you they gave it all to you for free. I will have questions later about the charges.

Ms Mitchell: One of my recommendations is that there be regular yearly information made available around suicide and self-harming, which is based on hospital separation data for children nought to 18 in useful age cohorts that can assist in policy and program development.

Senator MOORE: You said the AIHW had given you three ranges—three to nine, 10 to 14, and 15 to 17—but then the other areas had different cohorts, so you were trying to balance different age groups when you were trying to pull together your recommendations.

Ms Mitchell: And this is another issue with the different agencies that hold and analyse data in Australia. They—ABS, AIHW and some of the other organisations—are not consistent in the way they pull information together, as all the states and territories are not consistent. Nor is there a consistent way of recording information about suicide deaths in coronial systems or hospitals systems or police systems. So that, for me, is a very important change that we need to bring about so that we can adequately monitor what is happening for these kids in finer grained ways. Without that, we are neither going to understand the extent of the problem nor the nuanced nature of the problem for different groups of children and young people.

Senator MOORE: And a particular issue for children under 15, your first—

Ms Mitchell: Before last year there was no information available for children under 15, and what I found in this report was that there was a 657 per cent increase in suicidal behaviour between the 12 to 13 age group and the 14 to 15 age group. That tells me we really need to know what is happening for children much earlier on in their lives, and that our interventions also need to be targeted much earlier on so we can build resilience and help-seeking in children, and also detect early mental health issues in children.

Senator MOORE: My bell has rung, Commissioner, but I will want to go back to this issue because 650 per cent seems to me to be an extraordinary figure. Thank you, Chair.

Senator REYNOLDS: Good afternoon, Professor Triggs and Secretary. I would like to clarify if I could; I am trying to reconcile a few aspects of the Basikbasik case. Obviously, we have had an extended discussion about it, but there are just a couple of things about it that trouble me a bit that I would like more information about.

We have a man who came here in the 1980s on a temporary protection visa and then a protection visa, as I understand it. He had about 15 years of violent episodes, which culminated in him killing his wife and his unborn child with a bicycle. He was then jailed, and then when he was released he went into immigration detention, where he was found to be too much of a danger to Australians and to the Australian public to be released. And yet the finding is that he should get $350,000 of Australian taxpayers' money—the exact people who he has been deemed too much of a danger to. I am wondering in all of this—and I do not know whether it is an issue for the Human Rights Commission or for the department—at what point do the human rights of Australians get taken into consideration in these cases? And I know, in having a look at this, that this question has been raised with me—and I know you have taken on notice a question about how many of these cases there are. But if someone is so undesirable, and is a clear and present threat to the Australian public, what about the human rights of the Australian public? Where do they get taken into consideration? I have not heard that yet in this whole discussion of the process.

Prof. Triggs: Senator Reynolds, I think you have asked, of course, the important question: how do you balance the interests of the Australian people against what, hypothetically or exactly, is a dangerous man—with his rights, as a human being, to a fair and proper process? The one element that you have left out of your recitation of the facts is that he has been held now for nearly eight years. That is more than double the time he served for manslaughter beyond the normal process. The position we took, and that I took as president, is a very, very simple one: nobody may be detained at the discretion of government without proper consideration of alternative methods of detention or supervision; and that there needs to be a proper review, regularly, of whether he ought properly to be released into the community. And it is that balance of interests that I think responds to your concern. We can readily accept that this man cannot be released in current circumstances. If his condition were to be regularly reviewed, and if the minister were to consider whether there were alternative ways in which he could be monitored and allowed to live—but I think you will appreciate that the criminal justice system rests on the assumption that when somebody has served their prison term, they have been allowed to be rehabilitated and they can move on with their lives. And this man has now been held for eight years without charge or trial by a court.

Senator REYNOLDS: But clearly he has not been rehabilitated—and he is—obviously; given all the infractions he has committed in detention—clearly not considered suitable for release into the Australian public.

Prof. Triggs: Well, it is the word 'clearly' that we would dispute. In other words, on the evidence that we had before us, the minister had not considered alternatives or taken into account the views of the psychiatrists and those caring for this man. All we are asking is that there be a proper process of supervision and consideration of the matter—to make exactly the balanced judgements that you, quite properly, argue should be made.

Senator REYNOLDS: So in terms of that finding—for $350,000 to go to this man who is unsuitable to go into the Australian community because he is a danger—is the point you are really making to the Attorney-General, to say that you think the process has not been followed? And is your mechanism to do that to reward the person in detention?

Prof. Triggs: That is not at all the analysis. The analysis is that his human rights have been breached, and where there has been a breach of those human rights obligations to which Australia is a party under various treaties there is a recommendation for compensation. Any Australian or anybody in Australia who has been detained contrary to those international obligations is entitled to compensation. That is standard procedure.

Senator REYNOLDS: But the compensation comes from the very taxpayers we are protecting him against. We are protecting Australian taxpayers from this man, yet we are using those people's taxpayers dollars to compensate him.

Prof. Triggs: I am afraid your question is based on a number of false premises. The difficulty here is that there has been no proper assessment by the minister or others as to whether his rights could be protected while at the same time protecting those of the Australian public. That is the problem.

Senator REYNOLDS: Okay, but the point you have just said that I made incorrectly, and I think you have just restated that, is that the person you are making a point to is the Attorney-General and the department, who have not, you allege, followed the right procedure, which is why this man is then due taxpayer compensation. So your real point, and your concern as the Human Rights Commission, is that there is a problem with the process in detention. Whether that is the Department of Immigration and Border Protection, the Attorney-General's Department or the Attorney, your way of resolving that is to provide taxpayers' money to the person in detention rather than address the systemic issues with the department and the Attorney-General by saying, 'We you think that these process might not be followed correctly. We need to discuss it and fix it.' Have those discussions occurred?

Ms O'Brien: Of course.

Prof. Triggs: Of course they have. As I just described to Senator Moore—I am not sure whether you were in the room at that time—we spend a great deal of time working with the department on what we see as systemic problems in their failure to abide by proper process. That is exactly the point. But where a body—an institution, a government body or any other entity in Australia—fails to abide by proper process then it is normal to suggest that they reform their processes and that some compensation be paid. I will now pass you back to Ms O'Brien.

Senator REYNOLDS: Actually, can I just ask the minister: have you got anything to contribute on this from the government's perspective?

Senator Scullion: Obviously, from the government's perspective, the best perspective would be from the Attorney, on whose behalf I am acting today. I do not think it is appropriate at this time in the proceedings that I provide a particular government view.

Senator REYNOLDS: Secretary?

Mr Moraitis: Could I just clarify, when you refer to departments, in this context it would be the Department of Immigration and Border Protection, because they are the ones who deal with regime—its set-up, its regulations—and that is the relationship that I assume has been worked with.

Senator REYNOLDS: Thank you, for clearing that.

Senator O'SULLIVAN: I will place on the record that, for the interests of continuity, I will continue this line of questioning, but I have a completely separate line of questioning to come back to, Chair. I had not necessarily taken a very specific interest in this case, so bear with me, Professor Triggs, as I go back to the beginning so I can try and get a sense of the journey.

Prof. Triggs: [Inaudible] taken a very considerable interest, according to one of the major newspapers. You made a number of public announcements about what you are concerned with.

CHAIR: Excuse me, Professor Triggs, you are here to answer questions, thanks.

Senator O'SULLIVAN: Do we know how this gentleman came into this country? Was he a refugee, a legal arrival, an applicant who came through due process and arrived here as an immigrant by application?

Prof. Triggs: He was a refugee.

Senator O'SULLIVAN: The circumstances of his arrival?

Prof. Triggs: I am afraid that you are asking for a level of detail that really is not appropriate for us to be discussing in this context. If you want to talk about his background I think it is necessary to look at the criminal proceedings that would have detailed all of the background. The department would also have all of the records of how he made his application for refugee status, the basis on which it was granted and the basis on which his visa was, I think, withdrawn.

CHAIR: Professor Triggs, could I just interrupt and say it is not for you to determine what the committee should or should not be discussing. You are here to answer questions. If you do not have the information, that is how you should answer. Senator O'Sullivan does not need a lecture.

Senator O'SULLIVAN: To assist you in context, I am trying to—

Prof. Triggs: Perhaps I can say that I have reported to parliament—

Senator O'SULLIVAN: Professor Triggs, I am going to assist you if you will allow me.

Prof. Triggs: That would be very helpful.

Senator O'SULLIVAN: Good. You have presided over this. You have presided over this particular matter yourself. You published a report. My line of questioning is to find out just what relevant material you took into account as you made your journey on this case and, accordingly, I want to go back to the beginning. It is relevant if there were things that you do not know. You just simply need to say to me, 'I don't know that and I have never known that,' if that is the appropriate answer. I want to come back to this: can you tell me the circumstances of the arrival of Mr Basikbasik? Was he accepted into a refugee program? That is, was he accepted from an application somewhere and granted refugee status in this country or did he come in a boat as an illegal arrival, for example?

Prof. Triggs: I do not know the precise answers to your questions. All of the facts that were relevant to my findings are to be found in the report that I made to parliament.

Senator O'SULLIVAN: In your status of having looked at this matter, would your answer suggest that you no longer have an independent recollection of the circumstances of his arrival into Australia?

Prof. Triggs: I do not know that I ever had knowledge of it. We were looking at his arbitrator detention by the government for seven years. That was the issue that we were asked, under our statute, to investigate.

Senator O'SULLIVAN: Sure. If he had illegally arrived here and he had—as an example; I am not suggesting it is the case with Mr Basikbasik—arrived here running away from terrorist activities in another country, you say that would not have been of interest to you? That sort of genesis for his journey to the country in the first instance?

Prof. Triggs: I said nothing of the kind.

Senator O'SULLIVAN: Let me ask you the question a different way: do you believe that a person's journey to our shores that leads to eventually circumstances such as those that you are asked to examine would be important to you as an examiner?

Prof. Triggs: This is well beyond our job. It is not my job to investigate how he arrived in Australia. My job was to determine whether his complaints against the Australian government for holding him without charge or trial was arbitrary under international law. That was my job.

Senator O'SULLIVAN: But wouldn't it be relevant whether his status was as an illegal immigrant or someone who had arrived lawfully and made the journey to citizenship and a whole range of other things? Is that irrelevant to you?

Prof. Triggs: Again, you are trying to put words into my mouth.

Senator O'SULLIVAN: No, no. It is posed as a question, Professor Triggs. I think it is quite a reasonable one.

Prof. Triggs: I considered all of those matters that were relevant to determining whether or not the government was in breach of its international obligations. I cannot answer hypothetical questions. If you want to know about his arrival in Australia and the circumstances, I think you need to ask the Department of Immigration.

Senator O'SULLIVAN: Thank you for that advice, but my question was not hypothetical. I have asked you, as an examiner, whether the circumstances of a person's arrival in Australia are relevant to any examination you are making and, in particular, to this example. You can tell me that it is not. I am happy with yes or no.

Prof. Triggs: The circumstance under which someone arrives in Australia may or may not be relevant to a complaint that we hear, but I have only one concern: is the government complying with its international obligations?

CHAIR: In this instance, did you consider that it was relevant? In your answer, it is clearly no.

Prof. Triggs: Please, do not put words into my mouth. I did not say that.

CHAIR: What is your answer then? Was it relevant in this case?

Prof. Triggs: It was relevant to this. As you have seen for the report that I hope you have read, he was a refugee. The fact that he was a refugee meant that he could not be returned to Indonesia. That, of course, was relevant.

Senator O'SULLIVAN: Thank you for that. With respect, is it fair to say that you are not asserting that the government or any government—because a lot of this detention was under another government—acted unlawfully? His detention was lawful detention for this detention period that you are looking at?

Prof. Triggs: His detention was lawful.

Senator O'SULLIVAN: If a person who has a history of criminal activity were to be a general applicant to migrate to this country, do you accept that their chances in most instances would be very minimal, that their application would not be accepted or processed?

Prof. Triggs: I am afraid that is a question for the department of immigration, not for me.

CHAIR: We might have to leave that and come back to it later.

Senator MOORE: I want to go back to the Children's Commissioner and the data question that we were talking about when our 15 minutes happened before. The paper itself talks about your deep concern about data and makes recommendations about what should happen with data in Australia. Where does that recommendation go to once you make it?

Ms Mitchell: You have the report and that report is tabled in parliament. The responses to recommendations are generally coordinated through the Attorney-General's Department. I also independently make contact with the relevant ministers, and I have begun to do that following this report.

Senator MOORE: And in this case it would be federal and state? Were you working with the state ministers in your capacity as well?

Ms Mitchell: My jurisdiction is limited to national issues, policies, laws and programs. However, there are instances where national consistency and coordination is important.

Senator MOORE: Sure. That is critical in this area.

Ms Mitchell: Yes, absolutely. I also work closely with the state and territory children's commissioners so that there is a capacity to influence through them what individual states and territories do. I have started discussions with relevant ministers within the government about the range of recommendations.

Senator MOORE: There are a few.

Ms Mitchell: They relate to research and data in particular. So I have met with Minister Ley's office around the research agenda in relation to mental health and other issues, and interventions—

Senator MOORE: Yes, and AIHW, I would imagine.

Ms Mitchell: Yes. AIHW is under Minister Ley's portfolio, whereas ABS is under the Treasurer's portfolio. I have already had some initial indications from the Parliamentary Secretary to the Treasurer that the ABS will be providing information of the kind that I have asked for on a regular basis. I do need to confirm what that looks like and what form it is going to take, but that is a good early indication that there might be some movement in that area.

Senator MOORE: And Minister Morrison? You have already published in the report that the AIFS study is now picking up the particular question, which is a huge advance. So it is back through Minister Morrison's department.

Ms Mitchell: Yes. Children's issues are disparately located across government, so a relationship with Minister Morrison will be important to advance the recommendations as well.

Senator MOORE: But your basic report goes to the Attorney-General first, and then it is tabled?

Ms Mitchell: It goes to the parliament via the Attorney-General.

Senator MOORE: From the Attorney's point of view, when you get a report of this nature—and this was late last year?

Ms Mitchell: December.

Senator MOORE: December last year. The process is it comes back to the Attorney. Does the Attorney's department have any role in coordinating the response? When you have a range of recommendations across so many different departments, does it have a responsibility to do any coordination work there?

Mr Reid: Yes, that is right. We have started working through the recommendations in the commissioner's report. I will have to take on notice the engagement we have had with other departments at this stage, but we will have a role in bringing people together. I do not know whether we will end up coordinating issues or whether different portfolios will take things forward separately.

Senator MOORE: You will not be the lead agency?

Mr Reid: I would like to avoid saying that to the committee.

Senator MOORE: I love that saying. Is there any convention about how soon a response to a report from the Human Rights Commission should take? There is a laughing convention about other committee reports, that they have a three-month turnaround. In my lifetime that has not happened. Is there a convention within the Attorney's department for how long a response has to take?

Mr Reid: There is not.

Senator MOORE: Is the government's response tabled in parliament?

Mr Reid: There may not be a formal government response. It will depend on the circumstances and what the recommendations.

Senator MOORE: I will be asking the minister as to whether there could be a formal response to this one, amongst many others, but I have just taken a particular interest in this one. It would be a matter of seeking the minister's view as to whether there would be a formal response?

Mr Reid: That is exactly right.

Senator MOORE: Minister, can I make that formal response through you to the minister about seeking some information about whether there will be a formal response to the Children's rights reports 2014? Can I do it in this way?

Senator Scullion: If you are asking me, and I think you are, to simply take that on notice to get back to the committee, I see there are nods all around to say that is the case, so, yes.

Senator MOORE: If it requires a letter of something, I am happy to do that.

Senator Scullion: We are happy to take that on notice.

Senator MOORE: Another recommendation that talks about standardisation of police reporting and police forms is something all too familiar from our own inquiry. How does that operate? The police are state based, yet you highlight the need for a standardised police process.

Ms Mitchell: In fact, the police jurisdictions are probably more advanced than some of the other state jurisdictions in terms of this particular issue. They have been working for some time on a national standardised police form. I understand that that is close. In that context, I will be approaching the relevant COAG committee to inform me of progress in that area.

Senator MOORE: Is that Attorney's as well or is that Justice?

Ms Mitchell: My understanding is that it is Attorney's.

Senator MOORE: Attorney's do police as well?

Ms Mitchell: Yes.

Senator Scullion: It has come to my attention, and this is not my portfolio, and I have only looked over the report in the last few moments—

Senator MOORE: You are a quick reader.

Senator Scullion: When you were asking me about the previous request about the basic basic process and what the government's response was going to be, can I clarify whether that was in the conversation. I just want to clarify which report that particular response was on? Was it on the children's?

Senator MOORE: The children's report.

Senator Scullion: Thank you.

Senator MOORE: But you can respond to anything, Minister, but I was particularly asking about the children's one. I just want to check on the costings. Ms Mitchell, it struck me as odd that you had to, at the commission's expense, buy information from other government agencies. Is that standard practice?

Ms Mitchell: It depends. Government agencies charge other agencies for various pieces of work if it is outside their standard work. Obviously, I would like to have this data and I think it is in the public interest to have this data available regularly for free for everybody to use and for use for research and other purposes. It is a frustration for researchers as well. I do think it would be desirable for governments to review the charging practices in critical policy areas.

Senator MOORE: Can we find out how much it cost?

Ms Mitchell: I will take that on notice. Some agencies charge more than others.

Senator MOORE: Exactly, but this is actually an expense for the commission. Congratulations on making the decision to do the work, but it was not at anyone's request as such. It would be useful to know what cost that was, because it was your basic dataset.

Ms Mitchell: I am very happy to provide that for you.

Senator MOORE: With the National Advisory Group, the final statement of intent of children's rights in early childhood education and care was going to be released at the end of 2014. Can you give me an update on the status of that statement of intent.

Ms Mitchell: The intent was to release the statement of intent at the end of last year. I am working with Early Childhood Australia, and have been all last year to develop this statement. It is about practical guidance for people working in early childhood services to put children's rights at the centre of their thinking to ensure that they have a voice, to keep them safe, to keep them healthy—all of those sorts of basic human rights issues for children. It has been a fantastic experience doing that, but we were not able to do it at the end of last year. We are launching it next week in Queensland.

Senator MOORE: I was not angling for an invitation, but in terms—

Ms Mitchell: I am pretty sure that will go ahead.

Senator MOORE: The statement content will then be out there. Once you have launched it, what is the intent for what that is going to do?

Ms Mitchell: Early Childhood Australia has a number of members who run services all over the country for children.

Senator MOORE: It is a very strong partnership to be involved in.

Ms Mitchell: If anybody gets the child rights agenda, it is the early childhood sector—they see the value in having those early years as developmentally healthy as possible, and they see it through a rights lens. This is to help those workers to understand how they can put that commitment into practice in their services and to be able to have conversations with families about children's rights as well. It is an educative tool and a practical tool. Early Childhood Australia and I have also been discussing how we might, with no resources, develop additional practical tools and guidance for workers in that sector as well. But that is another step.

Senator MOORE: You tend to put the resources out into the network, but the development and the production of the resources is another step?

Ms Mitchell: Additional resources to that. It would be a matter of funding and resources.

Senator MOORE: Exactly. Chair, I am happy to cede to Senator Wright.

CHAIR: Have you finished, Senator Moore?

Senator MOORE: At this stage, yes.

Senator WRIGHT: I need to be clear—I am only having 15 minutes every hour-and-a-quarter so, Chair, I need to know if this is part of my 15 minutes or if is it an extra two minutes.

Senator MOORE: I am graciously giving you those two minutes.

Senator WRIGHT: That is gracious. Thank you, Senator Moore. Thank you, Commissioner. It is good to have a chance to question you. It is a very, very interesting report, and an important one, so thank you for that. Senator Moore has already asked some really good questions about it. You have obviously consulted broadly around the issues of self-harm and suicide among young people. Words are thrown around about the situation, but would you go so far as to say that we are at a crisis point when it comes to the wellbeing of young people in our country at this stage?

Ms Mitchell: It is important to know that the suicide rates have not actually increased, but they have flatlined. What we are not doing is making further inroads into what is a stubborn problem. Children are taking this kind of action at a much younger age, and I think we have to face that issue. That is really important. The issue of self-harm is really critical. The data that I sourced for this report shows that between 2007 and 2013 there were 18,277 hospitalisations for self-harm in Australia for children aged under 18. That is 50 to 60 a week going to hospital. That is just the tip of the iceberg. There are many other children self-harming in all sorts of ways who do not end up in hospital. I do think that that is potentially in the area of a crisis. The problem is: we do not know why they are doing it; we do not know what the risk factors are; we do not know what the protective factors are; we do not know what interventions work; and we do not know why they do not seek help. We need a really strong and deep research agenda to answer those questions, as well as to monitor what is going on in the surveillance area.

Senator WRIGHT: Thank you, I was going to come to the research. What do you think are the biggest challenges that we are facing in the area of public policy? You have mentioned research, obviously—so knowing the reasons for the problem, the size of the problem and then what to do about it. But is it a matter of there not being enough funding devoted to this at the moment to be able to do that?

Ms Mitchell: That is unclear. There are a lot of initiatives going on around Australia, and I think it is about bringing those initiatives together and the resources that we do have. I am hoping that the mental health review, when it is finalised and when the report is out, will prioritise children and young people's mental health in a resource and funding way. We know, for instance, there is only headspace, which is a fantastic initiative, and we get lots of good reviews about headspace for kids but it is only for those who are 12 and up.

So what are we doing about those younger kids, who are obviously thinking dark thoughts and feeling distress and are acting out on it? We do not know whether KidsMatter and Minds Matters are going to continue in schools. They are Commonwealth initiatives and they are about basic resilience-building in mental health. It is really important that we support and evaluate those initiatives and roll them out across all schools in Australia.

Senator WRIGHT: Headspace you have mentioned. And, of course, as well as there being an age limit, there is—

Ms Mitchell: There are only 75 of them, I think, around Australia.

Senator WRIGHT: That is right. Much as we would love to have them everywhere, they are not, and particularly—

Ms Mitchell: To cater for 5.2 million children; 25 per cent of whom are likely to have some kind of mental health issue.

Senator WRIGHT: So, in terms of the scale, they do great work of course. And geographically there are real limitations to some young people being able to get—

Ms Mitchell: That is why organisations such as Kids Helpline are so important. The work that I did also showed there is no particular time in the day or night that children are taking their own lives. It means that there needs to be someone they can talk to at any time and anonymously if they need to. A lot of these kids will not tell their parents or their friends; they are keeping it to themselves. Kids Helpline is a great service. They received, just in the 2012-13 period, 15,887 contacts by children and young people between five and 25 who were assessed as having self-injury and self-harming behaviours. So it is being used by kids and young people. I think we really need to resource those kinds of services more than we do at the moment.

Senator WRIGHT: That is a telephone line, isn't it?

Ms Mitchell: They can also approach the helpline online now.

Senator WRIGHT: That is what I was going to ask you about. In terms of dealing with scale and accessibility—and preference sometimes—for young people, what is your view about the online services that are available?

Ms Mitchell: I think it has great potential. Young people are very interested in it. We now have eheadspace starting as well, providing online counselling. They are also now trialling in the Kids Helpline some support groups online as well. So I think there is a great potential in this area to reach more kids, especially kids in rural and remote areas, who may not have anybody they can talk to—no trusted adults at all around them.

Senator WRIGHT: To what extent did you look at the co-morbidity or the co-relationship with issues like drugs and alcohol? Do you have recommendations around those?

Ms Mitchell: Again, I think, unless we do this research—and we do the research with children not with adults and translate that to children—we are not going to know the answer to that question. However, the Kids Helpline provided some data for those 15,000-odd contacts, things such as what the co-presenting concerns were. At the top of the list were things like being overwhelmed and being anxious and mental health, which is, I think, very interesting.

The next couple of issues for kids were relationship breakdowns—boyfriend-girlfriend—family conflict and family violence. A bit lower on the list, but nevertheless significant, were things like body image and bullying. That gives you a bit of an idea of the hierarchy of distress that kids are feeling. Of course, when you are a teenager or a child things can seem very acute to you, and a lot of things seem to be coming at you at once. What we do not know is how these multiple risk factors work to deepen a child's distress.

Senator WRIGHT: What about the increased likelihood of a child acting on that distress or those feelings, in terms of self-harm or taking their own life, in relation to use of alcohol or drugs at the time? Did you look at that as an issue?

Ms Mitchell: We did not particularly. I think it needs some very focused and targeted research. Obviously, much risk-taking behaviour is associated with depression and anxiety and lack of self-worth, or a response to a situation that a child finds himself in—for instance, a domestic violence situation. We did find that family violence was correlated to some extent with children starting to self-harm and to contemplate suicide. That was an interesting finding, and it is something that provided a bit of an impetus to do more work on that area this year.

Senator WRIGHT: This is probably like asking you to choose your favourite child, because there are a lot of recommendations that came out of the report. You have talked about data and knowing the problem and being able to understand it. What do you think some of the most important recommendations are?

Ms Mitchell: The research agenda is absolutely critical. There is no point in keeping on intervening in things that people think are good that have not been evaluated and that there is no evidence base for. It actually might be doing more harm than good. We need that research agenda that standardises data and terminology—even the researchers use different terminology in terms of non-suicidal self-harm and self-harm and a range of other things, so that needs to be sorted out—to cover that whole range, that public health model, of research from early intervention and prevention through to your more acute treatment programs for kids with serious mental health issues.

Senator WRIGHT: I apologise if you have already covered this ground. Have you had a chance to discuss the report with the Attorney-General or any other government minister yet?

Ms Mitchell: When I was doing this work at the end of last year I had quite a good discussion with the then Minister for Health, Peter Dutton. You will see a letter from him in the appendices to the report indicating where the government was committed to in terms of the health department, in particular, which covers mental health. That was a really positive engagement through this process. As I said before, I have made initial contact with the office of Sussan Ley, the current Minister for Health, because that is where the majority of the recommendations sit. I also wrote to the Treasurer about the data issues around the ABS. I have had an initial response back from the parliamentary secretary assisting the treasurer indicating that the ABS would be doing some work around its reporting of this issue. I just need to go back to them to confirm exactly what that looks like and to make sure it is in the nuanced way that we need in order to have proper surveillance in this area.

Senator WRIGHT: This is an area that overlaps so many other areas, as you say—family violence, parental separation, so many areas—but one that seems to clearly overlap is education and schools and being able to reach out and help children at the time. To what extent did you consult with teachers and education departments?

Ms Mitchell: Teachers are generally really concerned that they do not have the skills to recognise and respond to the risk factors. Part of that research agenda that I spoke of must include analysis of what gatekeeper training programs actually work. It is clear that that community of people are often the first to know. Teachers are often the first to know, apart from families, that something is going wrong. So we really need to educate and skill up the teaching community in this area. But until we know what gatekeeper training actually works, I do not think it is sensible to roll out these well-meaning programs.

Senator WRIGHT: What about skilled or qualified mental health practitioners being available to schools?

Ms Mitchell: Absolutely. There are a lot of mixed reviews of school counsellors. Obviously the more we can skill them up and connect them with the mental health community the better. That obviously has to be part of the professionalisation, if you like, of that group of people in particular.

Senator WRIGHT: Yes, there has obviously been a lot of controversy about the school counsellors, the school chaplains program and so on and what the role is of a person within a school in that way and whether they need to have particular qualifications to identify ill mental health.

Ms Mitchell: They either need the qualifications or they need to be able to access somebody who has the qualifications.

Senator WRIGHT: So that could then be having a psychologist or someone skilled with qualifications who could come?

Ms Mitchell: Yes. A lot of school counsellors who are chaplains do a good job and some do not. And some who are not chaplains do not do a good job either. It is very mixed out there. I think it is all about raising the standard generally so that you have somebody who is well connected and understands psychological issues for kids.

Senator WRIGHT: Thank you very much for that, Ms Mitchell. As I have a couple of minutes left, I would like to come back to the President of the Human Rights Commission, Professor Triggs. The tone of questioning that was occurring before worried me as a lawyer because it seemed to be suggesting that the applicability of our commitment to international human rights and the conventions and treaties that we as a country have signed up to voluntarily could depend on circumstances such as whether we find something that someone has done particularly appalling or not and when we are talking about arbitrary detention whether it is relevant to consider if ultimately we find someone's behaviour appalling we do not necessarily apply it. I am thinking about countries such as North Korea or the former Soviet Union that do not or did not have those sorts of qualms. With arbitrary detention, a government just does it if it wants to do it. We do not do that in Australia. Well, we do not want to do that in Australia—some of us, anyway. I am just interested in this. Could you take us back, again, to what the principle is in that convention and the issue that has been raised today squarely by the case of Basikbasik about arbitrary detention and what the requirements are there.

Prof. Triggs: We can go back a very long way, if you like. As you may know, it is the 800th anniversary of the Magna Carta this year. In the Magna Carta is a very clear provision that no man may be detained arbitrarily without a charge or trial by his peers. That is an absolutely core principle of the common law system that we have in Australia. That principle is incorporated in article 9 of the International Covenant on Civil and Political Rights. That is, again, the principle that no-one may be detained arbitrarily.

To put that in slightly different language, we may not detain somebody even under executive discretion by government if to do so is not a necessary and proportionate action to achieve a legitimate aim. A legitimate aim may very well be what Senator Reynolds has quite properly said. The welfare of Australian citizens is a totally appropriate and important objective. But whether the detention of somebody is proportionate and necessary in order to achieve that outcome is a judgement call, ultimately, that the government may or may not get right. We may have different points of view about it.

As far as Australia is concerned, we have ratified that treaty and, indeed, we were very strongly engaged in negotiating it and ultimately ratifying it. But we have not given domestic implementation to that treaty in domestic law. However, it provides a definition of 'human rights' for the purposes of the work of the Australian Human Rights Commission. That is why, when we receive complaints, one of the legal standards on which we operate is: is Australia in breach of that article of the international covenant when it detains someone, in this case for eight years, without a charge or trial?

Senator WRIGHT: So, in our system, we have a Human Rights Commission that has been established by statute, and the job of that commission is essentially to be a check and a balance, I suppose. There are various institutions in Australian society that keep us on track, in a sense. I am using lay language. Essentially, we have executive government doing certain things, but the job of the Human Rights Commission—the reason for the act and other institutions—is a check and balance on that. Is that right?

Prof. Triggs: That is exactly right.

Senator WRIGHT: To check that they are doing something—

Prof. Triggs: In other words, we are a part of a much bigger process. Complaints come to us. We determine whether they are in breach of the treaties, particularly the one I have just mentioned. If the government is unhappy with that or if a private company were unhappy with our findings and recommendations, they would go to the court and appeal against that. So we are just part of a process. It is a check and a balance. We are not determinative of anything at all; we simply make findings and recommendations. The other part of our work, of course, more broadly, as illustrated by my colleague Megan Mitchell, is that we do a lot of work that is consistent with government policy, or government policies across respective governments, in particular areas of race, children, women and so on.

Senator WRIGHT: If the government had appealed, if the executive had appealed, to a court, another institution in the separation of powers—

Prof. Triggs: That is right.

Senator WRIGHT: and if the court had determined that you had got it wrong, that you had misapplied your powers, then that would have been an open finding for that court to make?

Prof. Triggs: Exactly. It is part of a process, and we are merely the first step, the purpose being that many of these matters can be resolved very amicably, achieving systemic change, long before they ever need to go to court, so you do not need adversarial processes; you can do it through conciliation. That has been, I would suggest, a very successful way of dealing with human rights in Australia over the last 30 years of the existence of the commission.

CHAIR: President or Director, can I ask you, on notice if necessary, if you were aware that between 1986 and the year 2000 Basikbasik committed a number of violent offences culminating in the 2000 bashing of his 28-year-old Australian partner, who was four months pregnant. Are you aware of that?

Ms O'Brien: Sorry, could you repeat the sentence?

Senator JACINTA COLLINS: I am after the same thing, actually, Chair. I have just started to try and comprehend the full question. Between 1986 and when?

CHAIR: Are you aware that, between 1986 and the year 2000, Mr Basikbasik committed a number of violent offences, culminating in the 2000 bashing of his 28-year-old Australian partner, who was then four months pregnant? Were you aware of that?

Ms O'Brien: I can tell you what we were aware of. We were aware that Mr Basikbasik was convicted of a range of criminal offences in Australia dating from 1986. In May 2000, Mr Basikbasik was charged with the manslaughter of his de facto spouse.

CHAIR: Are you aware that she was his 28-year-old partner and she was four months pregnant?

Ms O'Brien: It may well be the case.

CHAIR: No, my question is: are you aware? You either are or you are not. When I say 'you', Director, I mean whoever is responsible for this report.

Senator WRIGHT: Do you mean now or at some other time in the past?

CHAIR: At that time the report was made.

Senator WRIGHT: It is important to be clear.

Ms O'Brien: I am aware of that personally from media reports to that effect. As to what the particular lawyer assisting the president was aware of, I could not answer that.

CHAIR: Can you take that on notice. Are you aware that in 2007 Mr Basikbasik was moved to immigration detention when the department of immigration ruled that he was not fit to rejoin society? Are you aware of that, or is whoever did the report aware of that, and were they at the time of—

Ms O'Brien: Sorry, I have to be careful. Could you repeat that sentence.

CHAIR: In 2007, Mr Basikbasik was moved to immigration detention when the department of immigration ruled that he was not fit to rejoin society.

Ms O'Brien: I am aware that in 2007 Mr Basikbasik was released from prison and was thereafter detained in Villawood Immigration Detention Centre.

CHAIR: Are you aware that the department of immigration ruled that he was not fit to rejoin society—you or whoever was responsible for this report at the time the report was being drafted?

Ms O'Brien: I am aware that the minister for immigration in 2003 cancelled Mr Basikbasik's protection visa under section 501 of the Migration Act.

CHAIR: Thank you for that information. That is not the question.

Ms O'Brien: That was the reason that he was moved to the immigration—

CHAIR: Are you or was the commission aware that the department of immigration ruled that he was not fit to rejoin society in 2007 when they placed him in immigration detention?

Ms O'Brien: I have not got that document—

CHAIR: Okay, you will take that on notice?

Ms O'Brien: Sorry, Senator, if I could answer: the reason he was placed in immigration detention, as I understand it, was that his visa was cancelled in 2003. I am not aware and would have to take on notice whether there was a separate ruling by the department of immigration following his release from prison.

CHAIR: I am happy for you to take all these on notice if you are not currently able to answer. Are you aware that, while in detention, Mr Basikbasik had more than 40 infractions, including assault? Are you aware of that, or was the person who prepared this report aware of that when preparing this report?

Ms O'Brien: I will take it on notice.

CHAIR: Thank you. Are you aware that he fathered 14 children by four different women?

Ms O'Brien: I will take it on notice.

CHAIR: Thank you. Are you aware that a psychiatrist who assessed Mr Basikbasik in 2008 found that he was a high risk of committing further violent offences and would not benefit from treatment, having shown little insight into his aggressive behaviour? Are you aware of that?

Ms O'Brien: I will take it on notice.

CHAIR: Are you aware that social work expert Deborah Walsh was quoted as saying—

Senator JACINTA COLLINS: Was she a social worker?

CHAIR: Social work expert Deborah Walsh—

Senator JACINTA COLLINS: I do not know what that is. Sorry, I am a social worker, so—

CHAIR: Sorry, I am not asking either of you the question. I will start again. Are you aware that social work expert Deborah Walsh was quoted as saying that women simply were not safe around him?

Ms O'Brien: I will take that on notice.

CHAIR: Thank you; that is what I wanted you to do. That completes my questions there, although Senator O'Sullivan might have some for the rest of my time, but I do have another area that I just want to briefly run to, which I think we gave you some notice of. Can you give me details of the overseas travel by commissioners in the last, say, 12 months to, let us say, the end of February 2015?

Ms Raman: I am happy to take that on notice. Would you like all commissioners?

CHAIR: Yes, all commissioners. Did we not give you notice that I would be asking these questions and ask that you have these details available?

Ms Raman: Not on international travel.

CHAIR: I understand—the secretary advises me—that there is sometimes some confusion, Mr Moraitis, in that the requests of the committee go to the department and then do not necessarily always go to the commission, but in the future we will correct that. I will just try and find out now. In those details, will you nominate them by individual commissioners on whose—

Ms Raman: I am happy to do so.

CHAIR: Would you also be able to give me the cost of those trips and what class of travel commissioners used.

Ms Raman: I am happy to do that.

Senator JACINTA COLLINS: What class, destination—

CHAIR: Yes, that would be a good idea.

Senator JACINTA COLLINS: and event?

CHAIR: My colleague rightly reminds me that I also include the president in the term 'commissioners', just in case the point is taken, as I think it has been in the past—the president and the commissioners.

Ms Raman: Sure. And would you like accommodation and travel?

CHAIR: It should be relative. Is there much of it? Is this a big request?

Ms Raman: No, it is not.

CHAIR: Would you have any idea about how many overseas trips the commissioners took in the last while?

Ms Raman: I would be just guessing, so I will—

CHAIR: Give me a guess, though. I just want to know what detail I should request. If it is only five or six—

Ms Raman: It probably is something in that number, but I am happy to provide proper details to you in due course.

CHAIR: Can you tell me now: what are the arrangements for travel overseas? Who authorises it? Who determines it?

Ms Raman: The president authorises commissioners' travel, but the president always informs the Attorney of any commission travel overseas. The president also informs the Attorney of any travel she is going to do overseas.

CHAIR: So the commissioners have to have their travel authorised by the president; that is correct. Does anyone authorise the president's travel?

Ms Raman: She informs the Attorney-General. It is not authorised, but she—

CHAIR: Okay, so the answer is no. Do you have a special budget for travel? I am sure the commission's budget is in your annual report, but I again have not had the chance to read every page of the annual report. Is your annual report out?

Ms Raman: No, it has not been tabled as yet.

CHAIR: When is it supposed to be tabled by? Perhaps I could ask Mr Moraitis that.

Senator JACINTA COLLINS: It is usually in September, isn't it?

Ms Raman: Yes—

Mr Moraitis: I am not aware of when the tabling dates are for the commission's annual reports.

CHAIR: Well, someone in the department must know. My understanding is that it is September in every year for all agencies, but—

Ms Raman: It is September. We provided the annual report in time. It was not tabled by the end of last year. Subsequently, in January, the ANAO, the Audit Office, spotted an error in their Q&A process—the commission has gone from being an FMA agency to a corporate entity under the PGPA—and asked that changes be made to the financials to reflect that error. So we have made those changes and resubmitted the annual report, but the fact remains that, at the end of last year, the annual report had not been tabled, even though it was provided to the Attorney in time.

CHAIR: The final annual report, amended by the Auditor-General, was delivered to the Attorney-General when?

Ms Raman: The one with the changes has been delivered this week, I think.

Mr Reid: In the last two days, I think.

CHAIR: In the last two days?

Mr Reid: That is right.

CHAIR: And that is an accurate report now in accordance with that? Well, perhaps that is why I have not read it. Does that have a budget and these sorts of details of expenditure in it?

Ms Raman: It probably would not have the level of detail you are looking for, but each commissioner has a general budget that we allocate for them. They can choose to use it on travel or whatever they choose to use it for. They would ask the president for permission if they wanted to use it for international travel.

CHAIR: Does your budget have a head of travel, international or domestic?

Ms Raman: No, we divide it up by commissioner, and we let the commissioner decide how they want to use that money. It is a very nominal sum. In the last year it has only been about $30,000 per commissioner.

CHAIR: And in the president's case?

Ms Raman: The president has a similar amount, but the president has a couple of international obligations on a yearly basis that she has to attend, so they are factored in, so her budget is more like $50,000.

CHAIR: What are those international obligations? Perhaps Professor Triggs can tell us that.

Prof. Triggs: It is the International Coordinating Committee, which coordinates the 110 national human rights bodies internationally, to which Australia—through me as president; I am the representative on that bureau. So I do need to go to those meetings regularly.

CHAIR: Are they held in New York or Geneva?

Prof. Triggs: Geneva.

CHAIR: And that one? I thought the director said two.

Prof. Triggs: The other is the Asia Pacific Forum of national human rights bodies, which is a body, of course, that we are party to. I have been on a number of committees for that Asia Pacific Forum, and I go to where they hold their meetings, so that is another regular one in the calendar.

CHAIR: They are the only two regular things?

Prof. Triggs: They are the two regulars, and there might be others, but usually, if there are others, they are at the invitation of a particular body, in which case they pay the costs. That is pretty much how we run things now.

Ms Raman: We also have two large international programs in China and Vietnam under the human rights dialogue between Australia and China and between Australia and Vietnam. So some of the president's trips are under those programs.

CHAIR: Do commissioners and the president travel business class or first class?

Prof. Triggs: We do not travel first class ever; we travel business class.

Ms Raman: And economy domestically.

CHAIR: Thank you. We will take a short break.

Proceedings suspended from 15:05 to 15:20

CHAIR: We will reconvene. In my questions about travel, I did indicate that I had asked the secretariat to refer that to the Human Rights Commission. There was some confusion about whether it was or was not and whether the Human Rights Commission received that and did not abide by it. The I just want to make it quite clear that the secretariat has advised me that my request was not passed on to the Human Rights Commission. Clearly, you would not have had any ability to bring that information with you, because you did not know about it. I just wanted to make that clear.

Senator MOORE: I just have two questions around the Racial Discrimination Act. Can I just find out what specific responsibilities the commission has with respect to the administration of the Racial Discrimination Act? I have seen the website and I know what it says, but from your perspective what is the role of the commission in terms of the administration of the act?

Prof. Triggs: I suspect that your question is getting to the complaints process.

Senator MOORE: I would imagine so, because that is the major focus that you have.

Prof. Triggs: It is the major focus. That brings us back to the role of the president in relation to complaints process, which is not something that we often have a chance to talk about so I am grateful for your question. All complaints that relate to the Racial Discrimination Act come to the commission how we try the same process, investigation and conciliation. As to legal, we attempt to work with private enterprise or the government. Ultimately, it comes to me if we cannot resolve it and I make a finding and recommendations.

That is a core part of the way in which we work under the Racial Discrimination Act, but then we have the Race Discrimination Commissioner, Dr Tim Soutphommasane, who—for example—leads the Racism. It Stops With Me project very successfully. He engages with the community and works on particular issues. Obviously, the 18C issue has been a dominant aspect of his portfolio for the last year or so. That is pretty much how the work is divided up.

Senator MOORE: The role of the commissioner involves the awareness raising aspects as well.

Prof. Triggs: I am sorry, I missed your question.

Senator MOORE: The role of the commissioner has a very high responsibility for awareness raising.

Prof. Triggs: Exactly. The point that Mr O'Brien has raised to me that I need just to confirm is that, again, if the private entity or the government is not happy with my findings in relation to the Racial Discrimination Act, the decisions can be appealed to the federal courts or an appropriate body. The critical point that is perhaps not always understood is that the complainant must come to us before they can get the courts. We are a first step. That is the role; that is the key role. To go back to your point: yes, Dr Soutphommasane's very major role is to raise awareness in the community and to promote an awareness that discrimination of the grounds of race is illegal. Also, he works much more proactively with the multicultural community in Australia and in engaging in the issues of the day that happen to arise.

Senator MOORE: That is the information that is on the website in terms of the wide-ranging role of all of your commissioners in terms of interaction with community. They put that up on the website.

Prof. Triggs: Basically, it is a key role for all of the commissioners.

Senator MOORE: Leading on from that, we know it is the 40th anniversary of the Racial Discrimination Act this year and that that will be a time to some celebration and acknowledgement, I would expect. What is the role of the commission in terms of that kind of acknowledgement and celebration process? That stuff has to be led from someone, otherwise it just does not happen.

Prof. Triggs: Thank you, again. Dr Soutphommasane has embarked on this year's celebration of that remarkable document that has been so important in the development of Australia in terms of human rights law. He has held a conference just about three weeks ago, in which we had various speakers talk about the way in which the legislation was passed by parliament, what has been achieved and what reform might be necessary. In a few weeks, a book will be launched that pulls together some of this work and further examines the importance of the act. Its contribution will continue throughout the year.

Senator MOORE: Is there a scheduled interaction with parliament on that? So much is going on around a whole range of things in the legislation's basis and also in Australia's role. It is bringing it back into engaging with the parliament in one respect to make sure that the parliament is involved and to make sure that we understand the link with parliament—not the government, but with parliament. Is there any proposal within this process to have some form of activity here that promotes the importance of the act, promotes some history of the act and actually engages with parliamentarians?

Prof. Triggs: I will have to take that on notice. I expect that my colleague will be thinking along those lines. I would also—perhaps through questions on notice—come back to you on the broader question, because this is something that we would very much like to work on with parliament. Indeed, we are thinking of things like holding seminars or sessions with those members of parliament who would like to be involved with this to talk about the way in which the various acts that we administer work in practice. There is so little understanding of what our role actually is.

We feel it might be helpful to work with parliament more closely, particularly with the development of the Parliamentary Joint Committee on Human Rights' scrutiny committee. That is proving to be more and more effective. It has got a very wide mandate. We have worked and want to continue to work very closely with it. We would be delighted to see more parliamentarians get involved in the process so that the process of considering the human rights implications of legislation is more front of mind than perhaps it has been.

Senator MOORE: There is a range of issues that could be done in that way. That was shamelessly promoting it in the question. In terms of doing some more work on notice on that, that would be great.

Prof. Triggs: Maybe after this and through the process we could talk to you in more detail about this. I am sure my colleague Dr Soutphommasane would love to get back to you on precisely what his plans are, although I might add that the Governor-General came to open the conference a few weeks ago and gave a very, very informed speech on the importance of the Racial Discrimination Act and its importance for Australia.

Senator MOORE: Thank you very much.

Senator JACINTA COLLINS: Professor Triggs, are you a member of the Administrative Review Council?

Prof. Triggs: I believe I have been an adviser to it.

Senator JACINTA COLLINS: But you are not a member?

Prof. Triggs: No.

Senator JACINTA COLLINS: Are you aware of when it last met?

Prof. Triggs: No, I am not. It reports and I receive its reports. But when it last met, I do not know.

Senator JACINTA COLLINS: What is the nature of the advice you provide to that council?

Prof. Triggs: It has been that I have looked at matters that raise matters of public international law, essentially, and international human rights treaties. But my engagement has been a very slight one. In fact, it was in the earlier days of my presidency rather than now.

Senator JACINTA COLLINS: It may be some time since it has met.

Prof. Triggs: It would have been at least nearly two years ago that I had any dealings with them. But may I take that on notice and come back to you?

Senator JACINTA COLLINS: Yes, if you could. I am also interested in terms of how its affairs relate to your ongoing role as well, if you could deal with that question.

Prof. Triggs: We would be very happy to look at that.

Senator O'SULLIVAN: Professor, I want to set a platform question before I go to the heart of my inquiry. Are you familiar with a case handled by the commission referred to as MG v the Commonwealth?

Prof. Triggs: Yes. That is one of the many complaints that we have received.

Senator O'SULLIVAN: You are familiar, clearly, from the exchange of evidence, with the Basikbasik case. There is another one referred to as Mr Charlie. Are you familiar with that particular matter also?

Prof. Triggs: Yes, again, I am familiar with that case, but I would have to refresh my mind as to the precise detail.

Senator O'SULLIVAN: No, I do not intend to ask you any questions about it today, but we will get to that, no doubt. Professor, the Senate provides for us to ask a witness to produce documents relevant to the work of the committee. I am now about to ask you about, or give you notice of a request about, the production of documents. When I say 'the production of documents', I am looking for the entire working file held by the commission in relation to these three matters. It would include but not be limited to documents; copies of anything held electronically, to the extent it could be produced; records; photographs; exhibits, if that is an appropriate term, that are presented; transcripts; records of depositions—any physical thing that can be transported within the scope of that request. So I am making a request of you to produce these documents in those three cases.

Prof. Triggs: We will be very happy to take the request on notice and we will, of course, get back to the committee.

Senator O'SULLIVAN: Thank you. Additionally, you indicated this morning in a general sense—and it has been tested by one or two questions—that it is your view that there are questions that can be posed to you by this committee that you can decline to answer. I want to explore that. I am happy to say on the record that that is in conflict with the advices I have been given as a senator that the only ground where a witness can refuse to answer questions is under the test of a public interest test, and that is a decision, I am told, by the relevant minister. In order that I might explore that further—I do not want to get into a debating position with you or any of your witness representatives—I want to give you the opportunity to state the ground upon which you might object to answering a question that is taken where it is other than on the grounds of the public interest test.

Prof. Triggs: Senator O'Sullivan, I am afraid again that your question is based on an entirely false premise. I have never said that we will decline to answer questions. Obviously, we will answer questions, to the extent that we can, of the Senate. So that is our answer.

Senator O'SULLIVAN: All right. In the case of MG v the Commonwealth of Australia, who is MG?

Prof. Triggs: I do not have the information before me. I will be absolutely pleased to ascertain that if I am able to—in other words, sometimes names are withheld for good legal reasons. But, if I am able to give you that information, I will be very pleased to do so and will pass it on to the secretariat.

Senator O'SULLIVAN: Well, it is just a little test: do you know what MG stands for yourself? You were the commissioner—

Prof. Triggs: I do not recall, no. But it is very common; if you look at the nearly 100 cases on which we have reported in the last few years, many of them have initials, and the reason for that is that they might involve a child, or there may be some other reason why their name is withheld. I will be, of course, very happy to give you whatever information I can.

Senator O'SULLIVAN: This could be a very good example for us to work through what grounds you might—in the event that you are unable to provide the details of that, would you be kind enough, in your response, to state the grounds upon which you are objecting to answering the question?

Prof. Triggs: I think you are perhaps a little ahead of things, because that is not the case at the moment. As soon as I can return to my office, I will check those names and we will give you whatever information we possibly can.

Senator O'SULLIVAN: Professor Triggs, can I revisit my question to you? In the event that you decide that you cannot answer the question as to who MG is, would you be kind enough to state the grounds upon which you object to answering the question? That is my question. I am not getting in front of myself. You may well come back to me and tell me it is Mickey Gooda. I have no idea what you will do. But, in the event that you cannot, I am asking you to lay the grounds that you cannot answer or that you object to the question.

Prof. Triggs: If I am unable to answer your question, I will do my very best to explain why I cannot answer that question.

Senator O'SULLIVAN: Thank you. That is all I wanted.

Senator JACINTA COLLINS: Senator O'Sullivan, could I just understand what the question is? I missed for a moment what—

CHAIR: Who MG is.

Senator JACINTA COLLINS: In respect to?

CHAIR: The court case MG v the Commonwealth of Australia.

Senator O'SULLIVAN: Professor Triggs, I just want to take the balance of my time, because these are significant matters. I want to revisit the Basikbasik case. Sorry; let me set that aside. It is within your scope of knowledge, is it not, that the Commonwealth of Australia in certain circumstances, where a person is not an Australian citizen and that person is held in detention, may ground their decision on the basis of information before them?

Prof. Triggs: What is the question?

Senator O'SULLIVAN: Is it your understanding that there are occasions, when a person is put into an indeterminate period of detention, that the Crown, the Commonwealth, as in the government of the day, is entitled to do that and they do that on the basis of information before them?

Prof. Triggs: I am afraid I do not understand the question, but, to the extent that I might understand it, it is a question for the department of immigration as to how they base their decisions. It is not something I can comment on.

Senator O'SULLIVAN: I did not seek a comment from you. I was asking your understanding of the principle.

Prof. Triggs: I do not understand your question. Could you please put it as a question?

Senator O'SULLIVAN: I will try and simplify it further for you, Professor. In the case of Basikbasik, who was in an indeterminate period of detention, was it your understanding that the Commonwealth, the government, made that decision on the basis of information before them?

Prof. Triggs: That is a question you will have to ask the Commonwealth, because they know what they base their findings on.

Senator O'SULLIVAN: That is a reasonable answer.

Prof. Triggs: Thank you.

Senator O'SULLIVAN: You know what? We can spend all today on this and, if I do not get to the end of it, we will just use our powers to come back and come back until we get to the bottom—

Senator WRIGHT: I do not think that—

Senator O'SULLIVAN: Please. You are wrong. You need to look at the standing orders.

Senator WRIGHT: Point of order, Chair.

CHAIR: What is your point of order?

Senator WRIGHT: My point of order is that I do not think it is appropriate for a member of the committee to be essentially threatening that we will just keep coming back and back if that actually is not in accordance with the spillover requirements.

CHAIR: There is no point of order.

Senator WRIGHT: This is a spillover.

Senator O'SULLIVAN: Professor Triggs, can you think of a circumstance where a person—

Senator WRIGHT: Are you [inaudible] at all?

Senator O'SULLIVAN: cannot go back to their community of origin, in a case like Mr Basikbasik's, but cannot be released into the general community of Australia, in the interests of the people of Australia, in the interests of the safety of the people of Australia? Can you think of any circumstance where that may occur?

Prof. Triggs: It not infrequently occurs, Senator, as you would know from the many reports that I have submitted to parliament on this very question that refugees or stateless persons who are unable to be returned to any country or their country of original nationality will be held by the government for indeterminate periods of time under the principle of executive discretion or under the precise terms of the Migration Act. The High Court of Australia, in the Al-Kateb case, has ruled acknowledging that this is the position. The question you are asking is a matter of clear Australian legal jurisprudence.

Senator O'SULLIVAN: Yes, I was aware of that.

Prof. Triggs: I am not sure of what your question was.

Senator O'SULLIVAN: Professor, I will get to the question. If there are multiple cases of that, can you tell me what stood Basikbasik aside from the others where these people are held for indeterminate periods of time?

Prof. Triggs: Nothing. There are many cases of this kind.

Senator O'SULLIVAN: I do not know the answer to my question, but was the trigger that Mr Basikbasik formally approached the commission to have his particular circumstances reviewed?

Prof. Triggs: Absolutely. That is how our jurisdiction is founded.

Senator O'SULLIVAN: Your finding was not that he ought to be released into the community—

Prof. Triggs: No.

Senator O'SULLIVAN: your finding was objecting to how he was being held in detention?

Prof. Triggs: No. The concern that we have, as a matter of law, is that it constitutes arbitrary detention to hold somebody indefinitely without ministerial consideration of the evidence that he might be released into the community under some form of conditional plan of management. As you and Senator Reynolds have appreciated, this is essentially a problem of failure to properly follow process, and that has led to the legal conclusion that to hold someone for eight years without proper process constitutes arbitrary detention, contrary to international law.

Senator O'SULLIVAN: Would the government be subject to a merits-based judicial review by Mr Basikbasik, had he chosen to take that pathway?

Prof. Triggs: The problem that your question raises, Senator O'Sullivan, is the distinction between international law and the International Covenant on Civil and Political Rights, which is part of our mandate at the Human Rights Commission, under which he brings a complaint. That complaint was well-founded. I made findings and recommendations, against which the government could have appealed for judicial review and chose not to.

Senator O'SULLIVAN: Sure. Thank you for that, but that was not my question.

Prof. Triggs: No, but you have not listened to my answer. If you listen to my answer, you might understand the difficulty that underpins many of the questions that come from that committee. That is that, under Australian domestic law, as distinct from international law, the Migration Act permits the minister to hold a person indefinitely. And that, as I said a moment ago, has been confirmed by the High Court of Australia.

Senator O'SULLIVAN: Sure. Would it be fair to say that the principle of your decision is in conflict with the decision delivered by the High Court of Australia on the question as to whether Basikbasik can, indeed, or should, remain in detention?

Prof. Triggs: They are not in conflict, because it is like two completely different jurisdictional questions and matters of law. The High Court answered its question according to the Australian Migration Act and Australian law and it was, with the greatest respect, a judgement that that High Court might reasonably reach—although it is obviously subject to considerable legal concern within the Australian legal community. My findings and recommendations—and that is all they are—are based on the international treaties that form the foundation for the mandate for the Human Rights Commission. So we are, to put it in simpler terms, like ships passing in the night: I am making one determination; the High Court is making another. The end result is that a man remains in detention, without an end in sight, forever.

Senator O'SULLIVAN: You will need to educate me on this. Does that then mean that these international treaties, for want of a better term, take precedence over the law of Australia and, indeed, decisions of the High Court?

Prof. Triggs: No, Senator Sullivan. That is not the case.

Senator O'SULLIVAN: O'Sullivan, Professor.

Prof. Triggs: The position is that Australia has an international obligation by virtue of signing these treaties so that we are amenable to, or part of, the international legal system. If we are in breach of those treaties, then we will have the appropriate United Nations monitoring bodies making their judgements about arbitrary detention, as, indeed, they have done recently. Those laws do not impinge on Australian law only is parliament has agreed to pass legislation to give effect to them. Within Australia, undeniably, the position the parliament declares through its legislation is the governing rule, except—and this is perhaps the point of confusion—the parliament has given this power to the Australian Human Rights Commission to make findings and recommendations upon a system of law that is not, in fact, binding in Australia. That is why the Australian public, justifiably, has some difficulty in understanding how, on the one hand, the High Court can say one thing and, on the other, the President of the Human Rights Commission can say another on the law. It is a system of checks and balances, as has been pointed out, and it has worked quite well for 30 years.

CHAIR: Under the standing orders I am required to ask whether anyone has further questions on the Australian Human Rights Commission. No-one does. I thank you, Professor Triggs and your team, very much. We look forward to seeing you again in a couple of months. We return to the Department of the Attorney-General.

Senator WRIGHT: I am interested in knowing about the funding cut to the National Aboriginal and Torres Strait Islander Legal Service, the peak body, and the status of that cut. I understand that that was not reversed in the announcement made by the Attorney-General yesterday, because that money would have come from a different area. Is that right?

Mr Manning: It is not correct to call it cut, Senator. Rather that funding expires at the end of the financial year. The money does not come from a different program—it all comes out of the Indigenous Legal Assistance program, which was part of yesterday's announcement. The money is still there, available for that use. The issue of whether peak bodies like NATSILS are generally able to be funded in that way is a matter before government at the moment.

Senator WRIGHT: It is still before government at this stage, but they have been operating on the understanding that they would not be re-funded when it expires. That was my understanding of their understanding.

Mr Manning: In the last month I went to their most recent meeting and essentially told them what I have just told you: that the matter is still before government. Whenever any funding is due to expire, there is always a chance that it will not be renewed but we have been keeping them aware of its status and government's consideration of it. They have known that for a little while now.

Senator WRIGHT: Were there any announcements regarding that particular program in the last budget? Was there any indication that it would not be extended?

Mr Manning: I will have to take that on notice. Certainly not in the last budget, because the only impact in the last budget was that Legal Aid Commission money we spoke about. In relation to the 2013 MYEFO and its phasing in, I will have to check whether there is an answer. I will take that on notice.

Senator WRIGHT: My understanding was that they were very much of the view that they would not be refunded, and they were making arrangements in terms of staff and so on. I am very interested to know whether or not there is a possibility or a likelihood that they may be refunded.

Mr Manning: There is certainly a possibility they may be refunded. That is a decision that is in the budget and for which recommendations have been made. I will just have to check, in relation to those advocacy changes, whether or not there was ever an announcement made. My recollection is that there was nothing that specific, but I will have to confirm that.

Senator WRIGHT: I want to ask questions about the Schools Security Program. If I have enough time I will go to the national counter-terrorism coordinator. There was an article, I think, in The Daily Telegraph on 2 March which said that more than 50 schools at risk of a terrorist attack around the country will be given security guards and closed-circuit TV systems amid heightened national-security fears. Is that assertion, or are those facts, part of the Schools Security Program? I am interested in investigating more about what that program is.

Ms K Jones: That announcement in that press release does specifically relate to the Schools Security Program, which is a program that we have funded over several years to support schools with a range of measures to increase security.

Senator WRIGHT: Is it right that more than 50 schools will be given security guards and closed-circuit TV systems as a result of national-security fears?

Ms K Jones: For each of the schools there are particular issues that may be relevant to them, whether it is because of the nature of the school, the location of the school, or the composition of the student bodies.

Senator WRIGHT: What process was used to assess schools at risk of terror attack?

Ms K Jones: In terms of the details of the process, if you do not mind, I need to take that on notice. The relevant people who are responsible for managing that program are not here at the moment, but I can take that on notice and provide full details.

Senator WRIGHT: Following on from that, what evidence is there that schools could be a target for a possible terrorist attack? What is the thinking behind this particular initiative or development?

Ms K Jones: In terms of the program, it is broader than schools being subject to a terrorist attack. There are a range of security issues that may be relevant to those schools. In terms of the information that is provided as part of the grant-assessment process, I would need to take that on notice and come back to you.

Senator WRIGHT: As you identified, the Schools Security Program is quite a long-running scheme.

Ms K Jones: Yes.

Senator WRIGHT: Were different measures used to assess security risks this time around?

Ms K Jones: I would need to take that on notice.

Senator WRIGHT: There is no-one here who can help me with those answers.

Ms K Jones: I apologise—no.

Senator WRIGHT: On notice, how was an increased terror threat factored into the decision-making process? In other words, how have things, developments, changed over recent times? I note that this is the first year that funding can be used to employ security guards. Why was that change made?

Ms K Jones: I would need to check that. I understand it was part of the election commitment of the government to broaden the program to enable security guards to be provided as part of the measures that schools could seek funding for, but I would like to confirm that for you.

Senator WRIGHT: Thank you, if you would do that. So was an increased terror threat factored into the decision-making process?

Ms K Jones: Certainly the general security environment was one relevant factor to considering both the program in general and in relation to each of the schools that applied. That general security context is relevant.

Senator WRIGHT: What evidence is there that these schools where a security guard is to be deployed would actually benefit by hiring guards? What evidential process has there been in making that decision?

Ms K Jones: Again, I would need to take that on notice.

Senator WRIGHT: In this funding round more than 80 per cent of the money has gone to independent schools. Is there any evidence to show that independent schools are 80 per cent more likely to be victims of attack, harassment or violence caused by racial or religious intolerance?

Ms K Jones: In terms of the specifics, because that is a very complex question I would not want to give a glib answer but I think one of the things that are relevant in relation to this program is that quite a lot of the schools are specialist religious schools, whether they are Islamic, Jewish and otherwise, and so they may for that reason have a heightened risk of attack, so that is one of the relevant factors in those circumstances.

Senator WRIGHT: Perhaps if the answer could indicate the breakdown and what the thinking or evidentiary basis was for the decision that was made. Also I said more than 50 was what was in the media report but how many schools are there? Are there 51, or more than that? Could you find that for me please?

Ms K Jones: I am happy to provide that.

Senator WRIGHT: Minister, I appreciate you are not the minister who can probably answer this at this point. This appears to have been characterised as an antiterror measure. How appropriate do you think it is that this issue around security at schools has been characterised as an antiterror measure?

Senator Scullion: You are right, I am not aware of the motivation that might have led to this but across governments one would think that you would move to secure a particular area of the community—in this case protecting our most vulnerable and sometimes most exposed. Clearly this has been an area that has been analysed in terms of what level of threat that that would attract. There is no doubt that an attack on a school would probably have one of the greatest impacts in that it would terrorise our community and would make us very fearful. No doubt this has been identified as a consequence of a risk rather than anything else and I think that is quite appropriate.

Senator WRIGHT: I am interested. Can you confirm that applications for these security guards and enhanced security measures for these schools were made in September last year. Is that right? Can you take that on notice if you do not know?

Ms K Jones: I will confirm that for you.

Senator WRIGHT: Thank you for that. If I can go to the proposed appointment of the National Counter Terrorism Coordinator. I am not sure if you are in a position to answer these questions.

Ms K Jones: Those questions should probably be directed towards the Department of the Prime Minister and Cabinet. They have got the lead on that issue.

Senator WRIGHT: Right. So these questions are not for Attorney-General's. I am jumping around a bit but I am trying to make the most of my last two minutes. Going back to Indigenous justice and the Closing the Gap justice targets, Mr Manning, I think I have asked you questions about these before.

Mr Manning: Yes.

Senator WRIGHT: I know I have. I am interested in what work has been occurring with the aim of including incarceration rates or other justice related measures in the Closing the Gap targets. What is the recent work? Has there been anything further since the last time I asked you these questions in estimates?

Mr Manning: I am sure there has been, but not done by us, in the sense that we administer the Indigenous legal assistance program, the funding of the eight ATSILSs; but other work that used to be done by this portfolio was transferred to the Department of the Premier and Cabinet under this government—sorry, the Department of the Prime Minister and Cabinet; I am going back to my Victoria days. So we have not been doing anything additional in my division.

Senator WRIGHT: Right. Again, I will address those questions to them. And it may be the case with this as well. We have been discussing today the MYEFO announcement of the cuts to, in particular, the Aboriginal and Torres Strait Islander legal services and what modelling was done on the effect of those cuts on incarceration rates of Aboriginal people. Has the department done any modelling since those cuts were announced? I know that there was the announcement—

Mr Manning: That they had been reversed.

Senator WRIGHT: yesterday.

Mr Manning: No, there was not modelling done by this department on any impact like that.

Senator WRIGHT: That was certainly the answer previously. I just thought I would check—no modelling since the last time.

Mr Manning: Right.

Senator WRIGHT: All right. Thank you. Chair, I do not have any more questions.

CHAIR: Minister Scullion and Mr Moraitis, thank you very much—and to all your staff. Again, my apologies to your staff who have not been called, but such is the way of this process. Thanks to everyone involved. That completes these estimates for the 2014-15 year. I thank the Hansard staff, and the secretary and all of her hardworking staff. We will see you all again in a couple of months.

Committee adjourned at 16:01