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Call for reform following revelations that AFP snoops on MPs' phone/email records



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20/11/13

On day of surveillance forum at Parliament House:

CALL FOR REFORM FOLLOWING REVELATIONS THAT AFP SNOOPS ON MPs’ PHONE/EMAIL RECORDS WHAT: Forum on surveillance, including metadata collection at Parliament House Committee Room 1R5 1pm-1:45pm today (Canberra time) WHO: Chaired by Nick Xenophon with a presentation by Professor Clinton Fernandes of UNSW Canberra A forum on electronic surveillance—including metadata collection (involving phone records, email records and text messages)—will hear how Australian laws fail to provide protection for MPs, journalists and their sources. The forum—organised by Independent Senator for SA Nick Xenophon—will hear from Professor Clinton Fernandes, a lecturer at UNSW Canberra, as to the scope of surveillance in Australia and the level of legal protections available. Professor Fernandes says: “The aim of the forum is to provide a non-technical explanation of what the recent revelations involving mass surveillance actually mean, and their impact on both MPs and journalists.” Senator Xenophon referred to questions he asked in Senate Estimates both in May this year and two days ago of AFP Commissioner Negus, as well as an answer on notice. The Commissioner has now confirmed that a number of MPs have been subject to authorisation orders to obtain their communication records. Senator Xenophon’s questions (see attachments) were asked in the context of Sections 70 and 79 of the Commonwealth Crimes Act, which relates to the unauthorised leaking of information from public servants. “What is disturbing about the AFP Commissioner’s admissions is that MPs’ records are being obtained in the context of whistleblower investigations—which can have a chilling effect on public servants coming forward with crucial evidence of corruption or maladministration, and in turn, on free speech. “If a number of MPs were subject to these orders, how many journalists would be as well?” Senator Xenophon called for a national debate on law reform needed to provide greater safeguards and scrutiny over authorities obtaining phone and email records in such cases. “There is a massive difference between the police obtaining the records of an MP suspected of corruption, and obtaining details of an MP talking to a whistleblower.” Senator Xenophon foreshadowed amendments to the Telecommunications (Interception and Access Act) to provide safeguards for journalists and MPs in having their phone and email records obtained, as well as phone calls and emails intercepted in case involving whistleblowers. For more information contact Sharon Smith on 0433 620 850 or Nick Xenophon on 0411 626 677

COMMONWEALTH OF AUSTRALIA

Official Committee Hansard

SENATE

LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE

Estimates

THURSDAY, 30 MAY 2013

CANBERRA

BY AUTHORITY OF THE SENATE

INTERNET

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The internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://parlinfo.aph.gov.au

SENATE

LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE

Thursday, 30 May 2013

Members in attendance: Senators Bilyk, Brandis, Crossin, Furner, Hanson-Young, Humphries, Kroger, Ludlam, Madigan, Marshall, Parry, Pratt, Rhiannon, Williams, Xenophon.

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ATTORNEY-GENERAL PORTFOLIO In Attendance

Senator Ludwig, Minister for Agriculture, Fisheries and Forestry and Minister assisting the Attorney-General on Queensland Floods Recovery Attorney-General's Department Mr Roger Wilkins AO, Secretary

Ms Elizabeth Kelly, Deputy Secretary, Strategic Policy and Coordination Group Mr Tony Sheehan, Deputy Secretary, National Security and Criminal Justice Group Mr David Fredericks, Deputy Secretary, Civil Justice and Legal Services 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 1.1—Attorney-General’s Department Operating Expenses - Civil Justice and Legal Services Access to Justice Division Ms Louise Glanville, First Assistant Secretary Ms Cathy Rainsford, Assistant Secretary, Family Law Branch Dr Albin Smrdel, Assistant Secretary, Federal Courts Branch Dr Karl Alderson, Assistant Secretary, Justice Policy and Administrative Law Branch Mr Peter Arnaudo, Assistant Secretary, Marriage and Intercountry Adoption Branch Civil Law Division Mr Matt Minogue, First Assistant Secretary Mr Jeff Murphy, Assistant Secretary, Office of Legal Services Coordination Mr Richard Glenn, Assistant Secretary, Business and Information Law Branch Ms Jane Fitzgerald, Assistant Secretary, Classification Branch International Law and Human Rights Division Mr Greg Manning, First Assistant Secretary Mr Bill Campbell QC, General Counsel (International Law) Ms Helen Daniels, Assistant Secretary, International Human Rights and Anti-Discrimination Branch Mr John Reid, Assistant Secretary, International Law, Trade and Security Branch Mr Daniel Abraham, Acting Assistant Secretary, Human Rights Policy Branch Ms Anne Sheehan, Assistant Secretary, Whaling Litigation Mr Mark Jennings, Senior Counsel, International Tobacco Litigation Taskforce Social Inclusion Division Mr Andrew Walter, Acting First Assistant Secretary

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Ms Marjorie Todd, Assistant Secretary, Legal Assistance Branch Ms Lavinia Gracik, Acting Assistant Secretary, Native Title Unit Mr Sean Sexton-Moss, Special Counsel, Native Title Unit Defence Abuse Response Taskforce Mr Matt Hall, Executive Director 1.2—Attorney-General’s Department Operating Expenses - National Security and Criminal Justice Criminal Justice Division Mr Iain Anderson, First Assistant Secretary Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement Branch Ms Rachel Antone, Acting Assistant Secretary, Border Management and Crime Prevention Branch Ms Kelly Williams, Assistant Secretary, AusCheck Branch National Security Capability Development Division Ms Sarah Chidgey, Acting First Assistant Secretary Mr Michael Pahlow, Assistant Secretary, Capability Development Branch Ms Catherine Jones, Assistant Secretary, Capability Governance and Assurance Branch Ms Raelene Thompson, Assistant Secretary, Training, Education and Development Branch Emergency Management Australia Mr Mark Crosweller AFSM, Director General Dr John Boersig PSM, Assistant Secretary, Security Coordination Branch Mr Chris Collett, Assistant Secretary, National Disaster Recovery Programs Branch Ms Chris Jeacle, Acting Assistant Secretary, Crisis Coordination Branch International Crime Cooperation Division Ms Katherine Jones, First Assistant Secretary Mr Cameron Gifford, Assistant Secretary, International Crime Cooperation Central Authority Mr Kieran Butler, Acting Assistant Secretary, International Crime - Policy and Engagement Branch Ms Elizabeth Brayshaw, Acting Assistant Secretary, International Legal Assistance Branch Ms Petra Gartmann, Acting Assistant Secretary, International Legal Assistance Branch National Security Resilience Policy Division Mr Mike Rothery, First Assistant Secretary Mr Andrew Rice, Assistant Secretary, Cyber and Identity Security Policy Branch Mr Michael Jerks, Assistant Secretary, Critical Infrastructure and Protective Security Policy Branch

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Mr Aaron Verlin, Acting Assistant Secretary, Emergency Management Policy Branch Ms Carolyn Patterson, Assistant Secretary, CERT Australia National Security Law and Policy Division Mr Geoff McDonald PSM, First Assistant Secretary

Mrs Annette Willing, Assistant Secretary, Security Law Branch Ms Jamie Lowe, Assistant Secretary, National Security Policy and Programs Branch Mrs Catherine Smith, Assistant Secretary, Telecommunications and Surveillance Law Branch 1.3—Justice Services Access to Justice Division Ms Louise Glanville, First Assistant Secretary Ms Cathy Rainsford, Assistant Secretary, Family Law Branch Dr Albin Smrdel, Assistant Secretary, Federal Courts Branch Dr Karl Alderson, Assistant Secretary, Justice Policy and Administrative Law Branch Mr Peter Arnaudo, Assistant Secretary, Marriage and Intercountry Adoption Branch Social Inclusion Division Mr Andrew Walter, Acting First Assistant Secretary Ms Marjorie Todd, Assistant Secretary, Legal Assistance Branch Ms Lavinia Gracik, Acting Assistant Secretary, Native Title Unit Mr Sean Sexton-Moss, Special Counsel, Native Title Unit Civil Law Division Mr Matt Minogue, First Assistant Secretary Mr Jeff Murphy, Assistant Secretary, Office of Legal Services Coordination Mr Richard Glenn, Assistant Secretary, Business and Information Law Branch Ms Jane Fitzgerald, Assistant Secretary, Classification Branch International Law and Human Rights Division Mr Greg Manning, First Assistant Secretary Mr Bill Campbell QC, General Counsel (International Law) Ms Helen Daniels, Assistant Secretary, International Human Rights and Anti-Discrimination Branch Mr John Reid, Assistant Secretary, International Law, Trade and Security Branch Mr Daniel Abraham, Acting Assistant Secretary, Human Rights Policy Branch Ms Anne Sheehan, Assistant Secretary, Whaling Litigation Mr Mark Jennings, Senior Counsel, International Tobacco Litigation Taskforce 1.4—Family Relationship Services Access to Justice Division Ms Louise Glanville, First Assistant Secretary

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Ms Cathy Rainsford, Assistant Secretary, Family Law Branch Dr Albin Smrdel, Assistant Secretary, Federal Courts Branch Dr Karl Alderson, Assistant Secretary, Justice Policy and Administrative Law Branch Mr Peter Arnaudo, Assistant Secretary, Marriage and Intercountry Adoption Branch 1.5—Indigenous Law and Justice Social Inclusion Division

Mr Andrew Walter, Acting First Assistant Secretary Ms Marjorie Todd, Assistant Secretary, Legal Assistance Branch Ms Lavinia Gracik, Acting Assistant Secretary, Native Title Unit Mr Sean Sexton-Moss, Special Counsel, Native Title Unit 1.6—National Security and Criminal Justice Criminal Justice Division

Mr Iain Anderson, First Acting Secretary Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement Branch Ms Rachel Antone, Acting Assistant Secretary, Border Management and Crime Prevention Branch Ms Kelly Williams, Assistant Secretary, AusCheck Branch National Security Capability Development Division Ms Sarah Chidgey, Acting First Assistant Secretary Mr Michael Pahlow, Assistant Secretary, Capability Development Branch Ms Catherine Jones, Assistant Secretary, Capability Governance and Assurance Branch Ms Raelene Thompson, Assistant Secretary, Training, Education and Development Branch Emergency Management Australia Mr Mark Crosweller AFSM, Director General Dr John Boersig PSM, Assistant Secretary, Security Coordination Branch Mr Chris Collett, Assistant Secretary, National Disaster Recovery Programs Branch Ms Chris Jeacle, Acting Assistant Secretary, Crisis Coordination Branch International Crime Cooperation Division Ms Katherine Jones, First Assistant Secretary Mr Cameron Gifford, Assistant Secretary, International Crime Cooperation Central Authority Mr Kieran Butler, Acting Assistant Secretary, International Crime - Policy and Engagement Branch Ms Elizabeth Brayshaw, Acting Assistant Secretary, International Legal Assistance Branch Ms Petra Gartmann, Acting Assistant Secretary, International Legal Assistance Branch National Security Resilience Policy Division Mr Mike Rothery, First Assistant Secretary

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Mr Andrew Rice, Assistant Secretary, Cyber and Identity Security Policy Branch Mr Michael Jerks, Assistant Secretary, Critical Infrastructure and Protective Security Policy Branch Mr Aaron Verlin, Acting Assistant Secretary, Emergency Management Policy Branch Ms Carolyn Patterson, Assistant Secretary, CERT Australia National Security Law and Policy Division

Mr Geoff McDonald PSM, First Assistant Secretary Mrs Annette Willing, Assistant Secretary, Security Law Branch Ms Jamie Lowe, Assistant Secretary, National Security Policy and Programs Branch Mrs Catherine Smith, Assistant Secretary, Telecommunications and Surveillance Law Branch Program 1.7 - Australian Government Disaster Financial Support Payments Emergency Management Australia

Mr Mark Crosweller AFSM, Director General Dr John Boersig PSM, Assistant Secretary, Security Coordination Branch Mr Chris Collett, Assistant Secretary, National Disaster Recovery Programs Branch Ms Chris Jeacle, Acting Assistant Secretary, Crisis Coordination Branch Program 1.8 - Royal Commission into Institutional Responses to Child Sexual Abuse

Ms Janette Dines, Chief Executive Officer Ms Lesley Morrison, Deputy Chief Executive Officer Mr Simon Aitchison, Acting General Manager Strategic Policy and Coordination Group Corporate Division Mr Stephen Lutze, General Manager Mr Trevor Kennedy, Assistant Secretary, Financial Management and Property Branch Ms Rachael Jackson, Assistant Secretary, People and Corporate Support Branch Strategy and Delivery Division Ms Louise Glanville, First Assistant Secretary Ms Doris Gibb, Assistant Secretary, Cabinet and Ministerial Coordination Branch Ms Sue Cattermole, Acting Assistant Secretary, Strategy Policy and Governance Branch Office of Corporate Counsel Ms Maggie Jackson, First Assistant Secretary Office of Constitutional Law Mr James Faulkner PSM SC, General Counsel (Constitutional) Information Division Ms Jane Bailey, Chief Information Officer Ms Joann Corcoran, Assistant Secretary, Innovation Service and Delivery Branch

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Australian Commission for Law Enforcement Integrity Mr Philip Moss, Integrity Commissioner Mr Stephen Hayward, Executive Director Operations Ms Tamsyn Harvey, Executive Director Strategic and Secretariat

Australian Crime Commission Mr John Lawler, Chief Executive Officer Mrs Kathryn McMullan, Acting Executive Director, People, Business Support and

Stakeholder Relations Mr Paul Jevtovic, Executive Director, Intervention and Prevention Australian Customs and Border Protection Service Mr Michael Pezzullo, Chief Executive Officer

Ms Marion Grant, Deputy Chief Executive Officer, Border Management/Chief Operating Officer Mr Roman Quaedvlieg APM, Deputy Chief Executive Officer, Border Enforcement

Mr Steven Groves, Chief Finance Officer/National Director Strategy, Planning and Resources Rear Admiral David Johnston, Commander Border Protection Command

Ms Rachel Noble, National Director, Intelligence Ms Karen Harfield, National Director, Compliance and Enforcement Mr Nigel Perry, National Director, Maritime Operations Mr Jeff Buckpitt, National Director, Passengers Ms Raelene Vivian, National Director, Cargo and Trade Mr Randall Brugeaud, Chief Technology Officer Ms Cindy Briscoe, National Director, Support Ms Jan Dorrington, National Director, Integrity, Security and Assurance Ms Sharon Nyakuengama, National Manager, Integrity & Professional Standards Ms Rosemary Holloway, Regional Director New South Wales Mr Roger Northcote, Acting General Counsel/Acting National Manager Legal Services Ms Kim Farrant, National Manager, International Trade Remedies Reform Australian Federal Police

Mr Tony Negus, Commissioner Mr Andrew Wood, Chief Operating Officer Mr Peter Drennan, Deputy Commissioner, National Security Mr Andrew Colvin, Deputy Commissioner, Crime Operations Mr Michael Phelan, Deputy Commissioner, Close Operations Support

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Australian Government Solicitor Mr Ian Govey, Chief Executive Officer Mr Norm Holcroft, Corporate Secretary

Australian Human Rights Commission Professor Gillian Triggs, President Mr Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner Ms Megan Mitchell, National Children’s Commissioner The Hon Susan Ryan AO, Age Discrimination Commissioner Mr Graeme Innes AM, Disability Discrimination Commissioner Ms Elizabeth Broderick, Sex Discrimination Commissioner Ms Padma Raman, Executive Director

Australian Law Reform Commission Professor Rosalind Croucher, President Ms Sabina Wynn, Executive Director

Australian Security Intelligence Organisation Mr David Irvine, Director-General of Security Ms Kerri Hartland, Deputy Director-General, Capability and Assessments Coordination

Classification Board Ms Lesley O’Brien, Director Mr Zahid Gamieldian, Acting Deputy Director

Classification Review Board Ms Victoria Rubensohn AM, Convenor Ms Fiona Jolly, Deputy Convenor

CrimTrac Mr Doug Smith, Chief Executive Officer Mr Lee Walton, Chief Information Officer Ms Nicole Mayo, Acting Chief Operating Officer Ms Yvette Whittaker, Chief Financial Officer

Family Court of Australia Mr Richard Foster PSM, Chief Executive Officer Mr Grahame Harriott, Executive Director Corporate Mr Steve Agnew, Executive Director Client Services

Federal Circuit Court of Australia Mr Richard Foster PSM, Chief Executive Officer Mr Grahame Harriott, Executive Director Corporate Mr Steve Agnew, Executive Director Client Services

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Federal Court of Australia Mr Warwick Soden, Registrar and Chief Executive Officer Mr Gordon Foster, Executive Director Mr Peter Bowen, Chief Finance Officer

Insolvency and Trustee Service Australia Ms Veronique Ingram, Chief Executive and Inspector General in Bankruptcy Mr Rob Hanlon, Acting Chief Operating Officer Mr Andrew Sellars, Acting General Counsel Mr David Bergman, National Manager Business Services

Office of the Australian Information Commissioner Prof. John McMillan, Australian Information Commissioner Mr Timothy Pilgrim, Privacy Commissioner Dr James Popple, Freedom of Information Commissioner Ms Alison Leonard, Assistant Commissioner Corporate Support and Communication

Office of the Commonwealth Director of Public Prosecutions Mr Robert Bromwich SC, Director Ms Stela Walker, Deputy Director Corporate Services

Committee met at 09:00. CHAIR (Senator Crossin): I declare open this public hearing of the Legal and Constitutional Affairs Legislation Committee. The Senate has referred to the committee the particulars of proposed expenditure in respect of the year ending 30 June 2014 and the particulars of certain proposed expenditure in respect of the year ending 30 June 2014 for the Attorney-General's and Immigration and Citizenship portfolios. The committee must report to the Senate on 25 June 2013 and it has set 12 July 2013 as the date by which answers to questions on notice are to be returned.

Under standing order 26, the committee must take all evidence in public session. This includes answers to questions on notice. Officers and senators are familiar with the rules of the Senate's governing estimates hearings. The secretariat has copies of the rules if required. I draw particular attention of the witnesses to the order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised. This will be incorporated in Hansard.

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

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

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(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).

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

Australian Commission for Law Enforcement Integrity [09:02] CHAIR: I welcome representatives from ACLEI, Mr Moss and his colleagues. Do you have an opening statement?

Mr Moss: No, I have no statement this morning. CHAIR: I invite questions. Senator BRANDIS: Mr Moss, the budget papers reveal a $787,000 cut in ACLEI's budget for 2013-14, following a $1.02 million cut in 2012-13 and a $119,000 cut in 2010-11.

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What areas of the agency will be affected by the further cut to your agency's budget in the current budget? Mr Moss: The cuts, as you suggest they are, to my mind indicate not so much a cut but an increase in ACLEI's budget overall since its commencement in early 2007.

Senator BRANDIS: Early 2007 is more than six years ago. I am focusing on the current budget. Tell me what areas of the agency and what aspects of its work will be affected by the cuts in the budget we are considering today.

Mr Moss: The cut you are talking about comes about as a consequence of funding until 31 December 2013 in relation to a surveillance capability enhancement pilot project, which is funded until, as I said, the end of this calendar year. Apart from that project coming to its natural end, there would otherwise be not, in fact, a cut but an increase in ACLEI's budget. That increase would be of the order of $0.725 million.

Senator BRANDIS: Is that $725,000? Mr Moss: That is correct. At this stage, the pilot project has not run its course. There is a review to be made of the effectiveness of the pilot project. It has carried over from one financial year to another. That is the explanation as to why, on the face of it, there seems to be a lower funding level for ACLEI this year than previous years. Senator BRANDIS: On the face of it, it seems to be a lower funding level because there is a lower funding level. You have just explained that there is a particular project that, when it runs its course, will not be a claim on your resources. It is not being replaced by an equivalent work project, is it? Mr Moss: What I am indicating to you is that that matter has not been resolved as of yet. Senator BRANDIS: That is because you do not have any money to do a replacement work project. Mr Moss: Resolved in the sense that the review has not been completed. My hope is that there will be means to provide additional funding for that project to continue at least until the end of the 2013-14 financial year, if not beyond. Senator BRANDIS: That is a hope, is it? Is it any more certain than a hope? Mr Moss: No, I think it is certainly a hope. On the balance of probabilities, I would be confident that this project would be continued. At the moment, it is funded from the PoCA, the proceeds of crime, fund, and that cannot be used subsequently. The project has proven its worth, particularly in the context of recent investigations conducted jointly with the AFP, Customs and Border Protection. It has helped the investigation to be efficient and it has produced strong criminal briefs. On the basis of that experience, I would—as I said, on the balance of probabilities—be confident that we will find funding to continue it. Senator BRANDIS: I do not know how you can possibly say 'on the balance of probabilities' when your conclusion is based entirely on a hope about matters that will be decided in the future, in circumstances of which you are unaware. If your hope is unfulfilled, does that mean the project will terminate prematurely? Mr Moss: It would mean that, but I come back to— Senator BRANDIS: Please concentrate on answering the questions I ask you. If it would mean that, then what will be—

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Senator Ludwig: That would be hypothetical. Senator BRANDIS: There is nothing in the standing orders against asking questions based on a hypothesis or a contingency. Senator Ludwig: It is not based on a hypothesis; it is a hypothetical question. I think there is a slight difference. But nevertheless, go on.

Senator BRANDIS: Thank you for that intervention. That was very illuminating. Senator Ludwig: It was no more illuminating than your question. Senator BRANDIS: In the event that the funding is not continued, will the work done on the project thus far be entirely wasted or can something be salvaged? Mr Moss: No, it would not be wasted in any way at all. What would be at risk would be ACLEI's capability to have access to a surveillance capability in the course of investigations. Senator BRANDIS: Would that be a significant degradation in ACLEI's capability, if it lost that access to a surveillance capability? Mr Moss: I believe it would. The capability has proved its worth, as I have just said, in recent major investigations. Senator BRANDIS: Let me give you the opportunity to explain a little more fully what the benefits to ACLEI of that capability are and the consequences of its loss, in the event that the funding is not continued. Mr Moss: The capability is provided by way of arrangement with the Australian Crime Commission whereby there is a surveillance team managed by the ACC. ACLEI has first call on that capability. Where it is warranted that physical surveillance occur, through the arrangement and the funding that has come through PoCA I am able to deploy a surveillance capability in relation to an investigation. Senator BRANDIS: You said this before; remind me on what date the funding currently expires. Mr Moss: It expires, at this stage, on 31 December this year. Senator BRANDIS: So unless there is an additional appropriation at the end of this year, then the project is gone? Mr Moss: That is correct, yes. Senator BRANDIS: You are no doubt aware that, in December last year, the Minister for Home Affairs announced that ACLEI's funding for its role to oversee the Australian Customs and Border Protection Service would be doubled. Do you remember Mr Clare saying that? Mr Moss: I cannot recall the exact words that he said. Senator BRANDIS: But you are familiar generally with the commitment that was made to double the funding for the oversight of Customs? Mr Moss: Certainly, there was an increase in the funding, but I cannot be sure at this point whether it was a doubling. Senator BRANDIS: That is where I was going to. Was the commitment to double the funding honoured or was it not? Mr Moss: It was certainly a significant increase. Whether it was an exact doubling—

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Senator BRANDIS: Just tell me what the figures were, so we can work out whether the promise made last December to double the funding was kept or broken. Mr Moss: I cannot produce the figures at this time.

Senator BRANDIS: A gentleman has just approached the table who seems to think that he knows something about it. Perhaps he— Mr Moss: He may be able to help. Senator, thank you for your patience.

Senator BRANDIS: I am famous for it. Mr Moss: The initial allocation to ACLEI, when the Customs and Border Protection jurisdiction commenced, was $750,000. I am informed that that amount doubled from July 2012—that is, another $750,000. Senator BRANDIS: What was the figure in December 2012? Mr Moss: As I am informed, I believe it to be $750,000. Senator BRANDIS: So in December 2012 there was $750,000. When was the additional $750,000 allocated? Was it in this budget? Mr Moss: I will need to correct what I told you previously. The additional amount was provided, with effect from July 2012—that is, at the commencement of this current financial year. Senator BRANDIS: So the total spent on this line item, in July 2012, was $1.5 million, was it? Mr Moss: Yes, that is my understanding. Senator BRANDIS: Then, in December 2012, Mr Clare promised that that would be doubled. Has it been? Mr Moss: I do not know what the link is between that statement and the amounts that I have given you. Senator BRANDIS: Has there been any increase in this budget above the amount that was allocated as of July last year? Mr Moss: Not in the current financial year. There will be an increase, though, in 2013-14, as I have indicated to you. Senator BRANDIS: What will the increase be? Mr Moss: As further information becomes available to me— Senator BRANDIS: It is in the budget papers, is it not? Surely— Mr Moss: The undertaking for an increase in ACLEI's funding was made in April 2012. The increase took effect from July 2012—that is, at the commencement of this financial year. Senator BRANDIS: There has been no increase beyond that; is that right? Mr Moss: Correct. Senator BRANDIS: Have any extra staff been allocated by ACLEI to oversee corruption claims in relation to Customs and, if so, how many? Mr Moss: It is not a question of allocation of staff solely to Customs and Border Protection. It is a question of additional staff at the disposal of the Integrity Commissioner to be used in any of the investigations required in relation to agencies within ACLEI's

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jurisdictions. So although the focus of the work has been—in this current financial year and previously—on Customs and Border Protection, I would not go as far as saying they were solely allocated to Customs and Border Protection. I have other things to focus on. In that sense, I have a core group and can deploy them as required, according to priority.

Senator BRANDIS: Currently, how many equivalent full-time staff positions are allocated to the oversight of Customs? Mr Moss: Although Customs is taking the majority of my focus right now, the staff who are solely devoted to Customs work would be two staff. But other staff also support the work that they are involved in from time to time.

Senator BRANDIS: You must do an analysis of equivalent full-time positions of the other staff who are allocated to support their work from time to time. If you aggregate the amount of their time that is devoted to supporting the two staff overseeing Customs, how many equivalent full-time positions does that get you to?

Mr Moss: I do not have the answer of that aggregation for you now. I can take it on notice. Senator BRANDIS: When you say 'other staff', how many other staff?

Mr Moss: There would be intelligence analyst staff, who would assist in the work currently being done in relation to Customs and Border Protection. There would be legal staff, who would be allocated to that work from time to time. My executive director of operations, Mr Hayward, would also be involved, as would his executive assistant.

Senator BRANDIS: But that is just like saying that certain core functions service the whole agency and therefore, at one level, support all the activities of the agency. On that thesis, you are allocated some of the time to the oversight of Customs.

Mr Moss: Indeed. Senator BRANDIS: I want to know how many dedicated staff there are— Mr Moss: That is the point I am making. Senator BRANDIS: beyond the two full-time ones. Are there dedicated part-time staff or are you just talking about the availability of staff with generic core functions to support all of ACLEI's work.

Mr Moss: That is what I am talking about. Senator BRANDIS: You are; all right. Mr Moss: The latter proposition. Senator BRANDIS: That is clear. So there are two? Mr Moss: That is not the end of the story. Senator BRANDIS: There are two dedicated staff to oversee Customs? Mr Moss: That is not the end of the story, because I have to perhaps explain to you the operating model for ACLEI. It is one of a concertina approach whereby, if a major investigation is needed, then I am in a position to request assistance from other agencies. Indeed, in relation to Customs and Border Protection, I am receiving significant assistance from the Australian Federal Police, Customs and Border Protection itself, the Australian

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Crime Commission and indeed, in a more general sense, the Attorney-General's Department. So it is not just a question of— Senator BRANDIS: How many AFP officers are allocated to you? Mr Moss: It is not a question of them being allocated to ACLEI. We are engaged in a

joint investigation in relation to Customs and Border Protection. Whereas ACLEI's focus is on the officials, the AFP focus is on the criminals and— Senator BRANDIS: Perhaps I will pursue that with the other agencies. All that you are saying is that where there is a multi-agency investigation then obviously officers for other agencies are involved, but that is not a comment on the deployment of your agencies' resources, is it?

Mr Moss: Indeed this investigation is being conducted under the framework of the Law Enforcement Integrity Commissioner Act, and in that sense it is the Integrity Commissioner's investigation. These staff are made available to me on request. They are, in some cases, authorised as ACLEI officers.

Senator BRANDIS: How many of them have been authorised as ACLEI officers? Mr Moss: That is a question that I will need to give you on notice, Senator. Senator BRANDIS: Have there been any or are you talking about what could theoretically occur? Mr Moss: No, there have been. Senator BRANDIS: More than one? Mr Moss: Yes, I would say in the order of 15. Senator BRANDIS: Full time? Mr Moss: Some are, yes. Senator BRANDIS: How many of the 15 are full time? Mr Moss: I will tell you that I think it is about eight. Senator BRANDIS: How many of those are under ACLEI's direction right now? Mr Moss: We are talking about the investigation— Senator BRANDIS: Among the 15 you have suggested of whom eight are full time, how many are working in that capacity right now? Mr Moss: As I have said, this is a joint investigation and we have different focuses within the joint investigation. Senator BRANDIS: Are there any? Mr Moss: Under my direct control? Senator BRANDIS: Now? Mr Moss: In the context of it being a LEIC Act investigation, they are guided by the overall guidance that I provide as Integrity Commissioner. Senator BRANDIS: But you said earlier when we established the figure of 15 of whom eight have been full time that they are the categories of officers from other agencies who are working under your direction. Because presumably what they do is done in an episodic way, I

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want to know whether there are any people of that 15 or of the eight full time who are working under your direction now. Mr Moss: I would like to give you a precise answer, but cannot do so now. Senator BRANDIS: Are there any? I mean, surely you know whether there are any.

Mr Moss: I cannot give an answer right now, Senator. Senator BRANDIS: Do you know whether there are any? Or you do not even know? Mr Moss: I know but I do not know the number. Senator BRANDIS: Tell us what you know. Mr Moss: I have told you that these officers from the AFP and Customs and Border Protection are working within the framework of the Law Enforcement Integrity Commissioner Act. They are authorised as ACLEI officers—

Senator BRANDIS: I am not quite sure what that means, by the way. Framework is a very vague word. Mr Moss: It provides for the Integrity Commissioner to conduct an investigation and exercise certain powers in that context.

Senator BRANDIS: What I am interested in knowing is the extent of resources that has been devoted to this task, and I cannot get beyond your earlier answer that there are two ACLEI officers, full-time officers, devoted to this task, which does seem to me, I am bound to say, to be a very small number in the scheme of things. Then when you tell me that there are associated agencies within this framework and that there have been up to 15 people from other agencies involved as well, that does not tell me very much at all because they may have been tasked for a week or a fortnight or a month or 48 hours, mightn't they?

Mr Moss: I can add clarification in light of what you have just said. This operation has been going on now since October 2011. Senator BRANDIS: The figure of 15 you mentioned are all the officers who have had some responsibility from other agencies since October 2011 presumably.

Mr Moss: That number I think would indicate the present levels. It has fluctuated from the October 2011 date until the present time according to the operational need. Senator BRANDIS: All right. Will you take those questions on notice. I want a breakdown of all the officers from other agencies working within the ACLEI framework, as you describe it, on this project at the moment, as of today, and whether they are full time or part time and for what period they have been deployed to ACLEI as of today.

Mr Moss: Yes, I will do that today. Also, would it be acceptable to you that I provide them to you direct rather than publicly? Senator BRANDIS: Just through the questions taken on notice process.

Mr Wilkins: I think the sensitivity is in providing it publicly. Senator BRANDIS: I understand. If you want to protect the information in some way rather than provide it through the ordinary committee process that is fine. That is a discussion you can have with the secretariat or the minister. Senator Ludwig: Maybe we could put it through in camera to the committee.

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Senator BRANDIS: Sure. That is fine. CHAIR: Can we clarify that, though. Senator Ludwig: The difficulty always is that if they go to operational matters it may— CHAIR: Yes, but there is no provision for in camera evidence at estimates. Senator Ludwig: I understand that. Mr Wilkins: We could put it in a private letter to the senator. Senator BRANDIS: Could it be provided to the members of the committee on a confidential basis?

CHAIR: No, I am advised we cannot do that for estimates. You might need to meet with Senator Brandis separately. Senator Ludwig: I will give that undertaking. Mr Moss will as well.

Mr Moss: Senator, for your benefit I should mention that I answer to the Parliamentary Joint Committee on ACLEI and as recently as 16 May I briefed them on an in camera, in-confidence basis.

Senator Ludwig: Are you a member of that committee? Senator BRANDIS: No. Senator Ludwig: We will figure out a way. Senator BRANDIS: I have more questions about your oversight of Customs. How many Customs officers are currently under suspicion of corruption?

Mr Moss: That is an operational question, and I would prefer not to answer it in this forum. Senator BRANDIS: How many search warrants have you executed in relation to suspicion of corruption among Customs officers since the investigation began in January the year before last?

Mr Moss: In the context of a joint investigation some of the warrants executed are in the name of ACLEI and some are executed in the name of the AFP. Senator BRANDIS: How many have been executed in the name of ACLEI?

Mr Moss: I do not have a figure on that right now. I can take that question on notice, if I may. Senator BRANDIS: Are you aware of the evidence that was given yesterday by the CEO of Customs about drug-testing of Customs officers? Is ACLEI involved in the drug-testing of Customs officers?

Mr Moss: I am not aware of the evidence given by the CEO of Customs yesterday, and ACLEI is not involved in drug testing in that agency. Senator BRANDIS: When officers of Customs are drug tested—and I understand your answer to the previous question, so, obviously, that is not by you—and they record a positive result, is ACLEI made aware of that as a matter of course?

Mr Moss: No, that is a matter that goes to disciplinary processes, and a matter for the CEO of that agency. Senator BRANDIS: I did not quite understand that answer.

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Mr Moss: That raises a question of employment and fitness for employment in that agency and therefore it is a matter for the CEO of that agency. Senator BRANDIS: That is not responsive to my question. I asked: when a positive drug test is recorded for a Customs officer, is that fact communicated to ACLEI? I am just asking about a process.

Mr Moss: Not in the normal course. But the head of any agency within ACLEI's jurisdiction is required to notify the Integrity Commissioner of any corruption issue they become aware of.

Senator BRANDIS: I see. Mr Moss: So if there were a corruption issue relating to, say, a positive result in a drug test, that would be notified to me, as required. Senator BRANDIS: And the judgment as to whether or not a positive drug test bore a close enough relationship to a corruption investigation to engage that obligation is a decision made by the CEO of the agency, is it?

Mr Moss: It is, but the practical arrangement between all agencies within ACLEI's jurisdiction is that there is discussion on any area of doubt as to whether a matter would constitute a corruption issue.

Senator BRANDIS: So your views about the circumstances in which there ought to be a report to ACLEI where a positive drug test might involve a corruption issue are part of the decision-making process about when reporting occurs and when it does not. Is that right?

Mr Moss: That is correct. In the normal course there would be discussion between the two agencies at officer level. Senator BRANDIS: Where there is a report to you of the kind we have described, after a positive drug test, does ACLEI then itself investigate the person who recorded the positive test?

Mr Moss: When a matter is notified to the Integrity Commissioner, it is the Integrity Commissioner's responsibility to make a decision on how the issue should be handled. There are a range of options available to the Integrity Commissioner. One is to investigate alone. The other would be to investigate jointly. Another would be to engage another agency to investigate, such as, in the case of Customs, the Australian Federal Police, or to refer the issue back to the agency that notified it for investigation and report to the Integrity Commissioner.

Senator BRANDIS: Is the choice among those different methods of pursuing the matter a choice that ACLEI makes? Is it the lead agency of those purposes? Mr Moss: That is a question for the Integrity Commissioner alone. It is one of the strengths of the arrangement under the Law Enforcement Integrity Commissioner Act that once a corruption issue has come to light it is then notified externally to the Integrity Commissioner for a decision to be made.

CHAIR: Thank you to Mr Moss and your colleagues for your evidence.

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Australian Crime Commission

[09:34] CHAIR: We now welcome officers from the Australian Crime Commission. Would you like to make an opening statement. Mr Lawler: I do not normally make opening statements at Senate estimates. However, on this occasion I would like to canvass with the committee an issue that is currently in the media and has been the subject of recent community and media interest. It relates to organised crime and drugs in sport and the ACC report.

The Australian Crime Commission released the Organised crime and drugs in sports report on 7 February 2013 in a very deliberate manner following careful consideration of the issues involved. That preceded a classified briefing to sporting codes. The ACC then invited the major codes to be involved in the launch of the report on 7 February. Why? Because the sporting codes are a strong part of the solution to the issues raised in the report. Indeed, we are now seeing very active responses by sporting codes.

What has often been missed is that the ACC report was never exclusively about criminal arrest, charges and prosecution, because the behaviours of the serious and organised criminals in some instances were not in and of themselves always criminal offences. This was the gap and risk that we have endeavoured to mitigate.

An ACC special intelligence operation is about understanding risk, threat and vulnerability and finding solutions to target harm in the environment from serious and organised crime. In this instance it was about hardening the industry of Australian sport from increased serious and organised crime penetration. People who have exclusively sought arrests and prosecutions as a result of the ACC report do not understand that concept of an ACC special intelligence operation.

It is worth pointing out that the ACC provides intelligence to partner agencies, who may then choose to undertake an investigation. Partners may then choose to utilise ACC intelligence to supplement existing or related criminal investigations or indeed preventative actions. Over 100 ACC classified intelligence products have been disseminated to our partners on this topic.

Notwithstanding this, we have ongoing criminal investigations. We are also further aware of investigations being conducted by law enforcement at the Commonwealth and state level in both the criminal and regulatory contexts around the threats and vulnerabilities identified in the ACC report.

We have recently been asked further questions about the timing of the ACC report's release. The ACC released the report on 7 February 2013 following extensive intelligence analysis, briefing of key partners, including sporting codes, and at a point when the ACC had accurate and corroborated intelligence on the extent of the threat. The ACC then moved, we say appropriately, to bring these issues to the public's attention, just as we did two weeks ago with the release of the Illicit drug data report. It is also important to note that the release of the report needed to be considered in the context of the ACC's strict legislative framework.

But we are not alone in raising serous concerns about organised crime penetration of sport. Since the 7 February release there have been numerous media reports and shows linking organised crime to sport in Australia. In addition, key sports leaders have added their voice to

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sound the alarm on this issue. For example, just yesterday Irina Bokova, Director-General of UNESCO, said: The rapid development of wide-scale sports fraud underscores the need to act urgently. It also shows that the current methods of dealing with the problem are largely obsolete. In its most recent report, published last February, Europol revealed that it had dismantled a network suspected of fixing 380 football matches. Sports fraud is no longer limited to cheating by an individual; it now belongs to the domain of organized crime and—with the growth of online betting—operates on a global scale.

Speaking at the 3 May 2013 Australian Olympic Committee meeting, IOC Chairman John Coates said: It would be naive to not expect that some Australian athletes and officials in Olympic sports have so far fallen through the net because of inefficient drug testing.

He said it was important to uphold the integrity in Olympic sport and he welcomed the assistance that Customs and the Australian Crime Commission was providing ASADA. Further, earlier this month, on 12 May, the Australian Football League released a report that demonstrated a 433 per cent increase in positive tests for illicit drugs last year—26 positive tests, up from just 6 in 2011.

It is again important to highlight that the ACC report was released following increased border seizures, with the number of performance and image enhancing drugs detected at the Australian border rising from 2,695 in 2009-10 to 5,561 in 2010-11, a 106 per cent increase, and the highest recorded number of performance and image enhancing drug detections at the border in the last decade. Between 2009 and 2010-11 there was increase of 255 per cent in the number of hormones detected at the Australian border by the Australian Customs and Border Protection Service, and the highest number on record of national steroids seizures and arrests, in 2010-11, by combined Australian law enforcement. Those three sets of figures need to be remembered in the context of the ACC report, which linked those three types of illicit substances to the one market.

This holistic response to the report, and others that I have not mentioned before this committee but would be happy to expand upon if required, is encouraging and will enhance the reputation and standing of Australian sport and the vast majority of Australian sports people well into the future.

With those opening comments I am happy to take any questions. Senator BRANDIS: Do you have the PBS there, Mr Lawler? Mr Lawler: Yes, I do. Senator BRANDIS: I take you to table 2.1 on page 85, titled 'Budgeted expenses for Outcome 1'. For the sake of clarity I should make it clear that there is only one outcome for your agency—that is: 'Reduced serious and organised crime threats of most harm to Australians and the national interest including through providing the ability to understand, discover and respond to such threats'. That is what you do.

Table 2.1 reveals does it not that the total expenditure by your agency for 2013-14, under the current budget, will be $101,787,000, a fall from $104,867,000 in 2012-13, in terms of actual expenses? So you are about $3 million short in nominal terms in this budget?

Mr Lawler: That is right.

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Senator BRANDIS: And in real terms, assuming an inflation rate of 2 per cent, your capacity over the coming budget year is down by about five per cent. Mr Lawler: Yes, certainly costs are increasing.

Senator BRANDIS: In the next line, we see the average staffing number. That is the number of full-time equivalent staff positions. The staffing level in the 2012-13 year, we are told, is 558. And the estimated average staffing level in the coming year will be down to 504—a reduction in 54 staff positions. Is that right?

Mr Lawler: The figures you quoted are right. I think, if I heard you correctly, you talked about an average FTE. In actual fact that is an average staffing level figure. Senator BRANDIS: So that includes part-time positions too, does it?

Mr Lawler: It is an average staffing level, so the calculation is quite a complex one. We have the three types—the headcount, the full-time equivalents and the average staffing level. For the portfolio budget statement, they traditionally use the average staffing level and there is a formula to work that out.

Senator BRANDIS: I see. I must say that I did not appreciate that. So the 504 staff positions accounted for in the PBS may not all be full-time positions? Mr Lawler: It is an average staffing level.

Senator BRANDIS: But does that mean that that is an average of all the full-time positions and all the part-time positions? Mr Lawler: That is right, as I understand the formula.

Senator BRANDIS: It is more serious than I thought. If you—and my office has done this—look at the equivalent table, table 2.1, in PBSs over previous years what they reveal is that in 2008-09 the ACC's staff was cut by 50. In 2009-10 it was cut by 35. In 2011-12 it was cut by 23. In 2012-13 it was cut by 36. And in the coming financial year it will be cut by another 54. The only year in which there was not a staff cut was 2010-11. During the course of the six years since the first Rudd government budget in 2008, the ACC's staff on this metric—the average staffing level—has been degraded by 198 staff positions so that it will now be 504 when six years ago it was more than 700. What do you say about that, Mr Lawler?

Mr Lawler: Yes, the commission has been subject over a number of years to significant staffing cuts. However, the metric that you have referred to is one way of calculating it. Senator BRANDIS: I understand that, but it is the way that the government chooses to calculate this.

Mr Lawler: I do not know that that is absolutely right. I will stand corrected here but, as I understand it, the figures that you have used are figures between an actual ASL in the previous year and an estimated ASL for the following year, just as the figure of 504 that you spoke about is an estimated average staffing level. What the commission has endeavoured to do to maintain staff is shift supplier costs to employee costs. So we have tried to cut further on the supply side while still maintaining staff. What that means is that we did not need to go down as far as the estimated average staffing level. In actual fact, managing the budget by developing efficiencies as best we could meant that often—year on year—we did not get to the estimate. We were able to hold more staff than what would otherwise have been the case.

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Senator BRANDIS: I am hardly blaming you for this. I am sure you and your colleagues have done extremely well with the continually reduced resources the government has given you. But there had to have been areas of activity which you would have wished to engage in that was not possible as your resources depleted from one year to the next. Can you give me some examples of what projects or areas of investigation you would have wished to pursue that, for resourcing reasons, you have not been able to?

Mr Lawler: Your statement is accurate. There are areas that we would have liked to have pursued. It is important that you understand how the ACC operates. We are not like a traditional law enforcement agency. We are not a reactive agency, normally. We endeavour, as per the outcome you read out, to focus on the highest threats and risks from organised crime to Australia and the Australian community. We have a list of priority areas that meet that criteria. What happens is that, with a reduction in resources, how far you can get down that priority list shortens. That is what has happened. I am not able to—

Senator BRANDIS: Presumably not only does the priority list shorten as the resources shorten but even among those tasks that the ACC does still perform the amount of resources devoted to those tasks shrink as well, so there is less you can do with particular investigations than you would otherwise have been able to do.

Mr Lawler: I do not know that we have managed it like that. What we endeavour to do is we take on the task where we want to achieve the objectives that are required under that particular intelligence operation or investigation and that is done with the knowledge and support of our board. So where we do supply our resources we will deploy them in a way that actually allows us to achieve the objectives in starting the project in the first place.

Senator BRANDIS: Let us say—and this is a theoretical argument—your board identified 10 critical areas and you wanted to investigate them all, you would then prioritise them according to the outcome with which you were tasked. No. 1, the most urgent priority that you have chosen, you would fully resource so that that investigation could be done as well as it could be and so on down the line until you run out of resources. In other words, you would rather do a few of the highest priority investigations and do them fully than do more of the investigations on your list of priorities but resource them insufficiently. Is that your broader philosophy?

Mr Lawler: That is the broad philosophy, yes. Senator BRANDIS: I understand. I asked you which investigations you would have wished to have done that you have been unable to do because of the degradation of your resources. Can I have just a few examples, please. Mr Lawler: My response to that is that the list of priorities, maybe even within determinations, will be many and varied. There is a significant organised crime threat. It is expanding and it changes all the time. So I do not know that I can take you to specific individuals or specific areas of focus. I did not have an opportunity to talk about the resources we leverage off others, a bit like we heard from the Commissioner for Law Enforcement Integrity. The ACC's business model is predicated on that. So we actually leverage up and make sure, as best we can within our collaborative environment, that all law enforcement is focused on the highest threat to targets.

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Senator BRANDIS: I am absolutely sure that is right. I am absolutely sure that all of the law enforcement agencies would have that objective—that they want to focus their resources on the highest priorities and most critical targets. But if the resources made available to each of the law enforcement agencies are being shrunk, as they have been, then even your capacity to leverage resources from other agencies is going to be diminished, isn't it, because the other agencies—such as the AFP, for example—have fewer resources as well?

Mr Lawler: That is correct. Senator BRANDIS: This is a public forum and I think it is important to share this with the public, so can you talk to us about the effect of this depletion of resources on your agency and the other law enforcement agencies in Australia against which you leverage resources. Mr Lawler: I would start off by talking about the environment and how it has changed. We are in a technology revolution which is bringing great benefit to communities around the globe but, from an organised crime organisation's perspective, great benefits for them as well. They are able to be connected like never before. They are able to communicate in secure mediums across the globe in an instant. This poses challenges for law enforcement—and, indeed, for others—that are unprecedented. Therefore, the complexity of particularly the organised crime challenge—because the organised criminals have embraced technology and globalisation—is having a devastating impact on the Australian community. That is the fact of it. But, in saying that, we have law enforcement also collaborating like never before. That is being driven by this phenomenon. Working together against frameworks and structures that will give longevity and sustenance to collaborative efforts and information sharing are matters which the Parliamentary Joint Committee on Law Enforcement has attended to in part. That is the environment we face. The reality is that organised crime is growing in complexity and evolving and penetrating. We have heard about sport, but we are also hearing examples of environmental crime. We have seen penetration in relation to emissions trading schemes abroad. Wherever we see large amounts of money, either government or private money, we will find organised crime active and looking to exploit those particular income sources because they are in the business of making money. To answer your question, the specifics of where constraints would impact go to some of our highest targets, issues around money laundering and understanding and making sense of data to understand new criminal threats as they emerge. These are all areas that are ultimately impacted. Senator BRANDIS: That is very concerning, I am bound to say. On the question of the acceleration of technology, I imagine that from at least a superficial point of view of an agency the greater capabilities that technology gives you could be thought to be an efficiency because you could possibly do more with less because of your greater technological capability? But I suppose the other side of the equation is that if the organised criminals are using very sophisticated technology as well, perhaps it is the case that you need more rather then fewer resources because of the technological revolution, because you are always trying to stay ahead of or at least on an even par with the technology that you are seeking to understand and the criminal activity that is being facilitated through that technology. Do you want to comment on that?

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Mr Lawler: I will. There are a couple of dimensions to that. The first is that gone are the days when we should endeavour to duplicate independently technological capability. There is more and more need for collaboration, as I see it—a sharing of capacities, sharing of knowledge and innovation, and having centres of expertise where agencies as a collaborative can draw on technological advances in a particular area in an environment that, as you have said, is extraordinarily complex, and also understanding that the sorts of forces we are up against here, it has been reported, would be of the scale of a Forbes 500 company or corporation if they were listed in such a way. Some have been reported to have GDPs larger than some smaller states.

So, they have enormous fiscal capacity. They do draw on a technical expertise, quite sophisticated and well-organised expertise. But it does not stop with technology; it goes to other professional facilitators, such as accountants and indeed lawyers, who provide structures and anonymity and other professional services and indeed challenge the commission regularly through the courts in quite a coordinated way to endeavour to mitigate risk wherever they can. So, we do see their fiscal power brought to bear. It is very challenging, given technology and the way it is moving, for even the most sophisticated law enforcement or indeed intelligence agencies to keep pace with that technological development. But the best way we can do that is to collaborate within government and indeed internationally to see that we are as best equipped as we possibly can be.

Senator BRANDIS: But it would be a wrong conclusion, would it, that the technological revolution has reduced the demand on your resources, because although technology can be a facilitator for you it is also a facilitator for the criminals, and you need more rather than fewer resources to keep pace with the technology being used by the criminals?

Mr Lawler: I think both are the case. I think you can employ funding to build technology and to enhance technology that makes you more efficient, particularly when it comes to areas of understanding data. That is what we are doing through the fusion capability. There are examples where technology is applied for tasks that might have taken eight hours that can now be done in 30 seconds. But, equally, it is fair to say that technology is causing significant complexity and growth in organised crime and growth in the costs to fight organised crime, and it requires resources to tackle that.

Senator BRANDIS: I want to ask you some questions about the Illicit drug data report 2011-12. That report found, among other things, that Australia is being targeted by international drug syndicates due to our relative wealth and the high value of the Australian dollar. Can you confirm that Parcel Post accounts are used for the largest number of illicit drug border detections?

Mr Lawler: That is a very broad statement. What we see is that the postal stream plays a significant role in the number of detections, both by number and by weight, across a range of drug types. It does vary between drug type to some degree, but I think you will find that in the report there is a table that actually breaks those down, as I understand it—or I have certainly seen a table that breaks those down into percentages—with some of the drug types by number well up into 90 per cent detected through the postal stream.

Senator BRANDIS: There were a record number of seizures in 2011-12, I believe. But the report also indicated that the prices for the drugs had remained pretty much constant. Is it

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fair to say that despite the seizures there is still a record quantity of drugs on the street in Australia? Mr Lawler: I have been asked this question at media conferences, and I have been cautious. For one thing, we have an illicit market that, despite the best efforts of law enforcement and indeed health agencies and indeed the non-government sector, because it is illicit we do not know that in absolute definition. So, one needs to be cautious in making comments about that. What we do know is that we have a record number of arrests. What we do know is that we have record seizures—23 tonnes, albeit that there was a spike in hypophosphorous: 11 tonnes, but still a very high amount of drugs. When we look at other data, like the national household survey, which is a survey in relation to drug usage, and when we look at data taken from prisoners in relation to drug testing, there is mixed information about whether the purity levels are at a sufficient level such that you could say that you are seizing all these drugs and the market remains the same. I think there is a much more complex dynamic at play. We have organised criminals who actually stage markets and will hold supply to benefit product. It may well be that they have easier supply to different products from different locations at different product margins. So, I do not know that I can answer your question specifically, unfortunately.

Senator BRANDIS: Can you give the committee an estimated figure as to how much the illicit drug market in Australia is worth? Mr Lawler: The figures reported are about $6 billion, I think. What we have said publicly is that, very conservatively, organised crime in Australia costs the community $15 billion a year. We do think that is a very conservative estimate, and the reason we think that is that we have taken that figure on the basis of World Bank and UNODC figures, which put general costs of organised crime around the globe at one to two per cent of GDP. Some countries, like the UK, think it is a much higher figure than that. And indeed Senator Parry, who was here earlier with the parliamentary joint committee, tabled a document, I understand, that had it at a much higher level. But one to two per cent of GDP at a GDP of, I think, $1.3 trillion for Australia is between $13 and $26 billion. We think we are at the lower end of that. We say the illicit drug market is a significant portion of that. So the $6 billion figure, on the strength of that, is, we think, conservative.

Senator BRANDIS: So, if your conservative figure were accurate, then the illicit drug market in Australia constitutes about two per cent of GDP, if it is $6 billion and GDP is $1.3 trillion.

Mr Lawler: Yes, that is one way of doing the arithmetic on it. Senator BRANDIS: Can you tell us how many of your personnel are allocated to the targeting of organised criminal gangs? Mr Lawler: We could start off with the premise that all of our agency does, because that is what the agency is focused on: it is focused on serious and organised crime.

Senator BRANDIS: Perhaps the question is too vaguely worded. But you are aware of course that there is always a lot of public discussion about gang crime as a subset, I suppose, of organised crime. So let's focus on gang crime. How many officers do you have specifically targeting gang crime?

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Mr Lawler: We do not break it up by gang crime. Indeed, the definition can be a slippery slope, if I can describe it like that. We can have gangs that are at the serious end of organised criminality. So, some of our outlaw motorcycle gangs are acknowledged as being serious and organised crime threats. But then we might have a very localised gang of half a dozen that is committing crime in a particular location in Australia, which is a very different proposition. And then you have the types of gangs that they have in the US, like the Bloods and others, which form another dimension of gangs in and of themselves. It is fair to say that state and territory jurisdictions have the principal focus in relation to gang-type activity at the state and territory level. What the commission looks to do, under its legislative remit—what we are required to do—is to focus at the top end of serious and organised criminality and not only gangs. Some of our most serious criminals would not be easily apparent to the general populace and the community, but they are causing enormous damage.

I will give you an example of that in our work around serious and organised investment fraud. Here we have organised crime groups—you could call them gangs—operating offshore who have never been to Australia and will never come to Australia who are ripping the Australian public off by targeting superannuation savings in this country to cause untold personal damage and to remove funds from the Australian community that should be legitimately invested here. And the Australian public will have to support those people in their retirement, because they will not have any funds left with which to sustain themselves. So, there is an example of a gang causing damage—organised crime causing damage—that also should be factored into the mix.

Senator BRANDIS: How many arrests of members of organised criminal gangs have been made as a direct result of the ACC's investigations in 2012 and to date in 2013? Mr Lawler: I will have somebody see if they can access those figures for you. But, while that is happening, perhaps I could make a comment about that around arrests and charges. What the commission has decided to do as part of its business model, apart from offences against the commission's act itself, is to work with our partner agencies—either the Commonwealth agencies or indeed the state and territory police—to have them effect the arrest. Now, this will often be done in very close collaboration with the commission. We will have provided the information, we will have provided the intelligence and will sometimes have provided the direct evidence, which allows the state and territory police to actually make the arrests and do the charging and ultimately present briefs to court. One of the things the Parliamentary Joint Committee on Law Enforcement found difficult was the question of how we capture the ACC's input into that process. We do not ultimately make the arrests—put the handcuffs on people—but we are intricately involved in the arrest. But we do not go to court, except to provide expert evidence where required.

Senator BRANDIS: I know it will be a question of judgement and there will be some borderline cases, but you must have a sense of those arrests that are consequential upon your investigations and those of others.

Mr Lawler: Senator, I have some figures here before me now. For the period 1 July 2012 through to 30 April 2013—so, they are quite recent—the conventional results, and I will also talk about some indirect or unconventional, preventative results, were: eight disruptions, 28 people charged, 59 charges laid, 14 convictions, $10 million in proceeds of crime restrained—

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Senator BRANDIS: Sorry, just pause there. When you say 14 convictions, does that mean 14 individuals convicted? Or are those multiple convictions in some cases. Mr Lawler: I understand it was 14 individuals. Then there was a bit over $26 million in proceeds of crime forfeited, 26 firearms seized, $6.1 million in cash seized—and that has been a particular focus of the commission around an operation we have running—$188 million in estimated street value of drugs seized, and a $77 million value of illicit drug production potential of precursors seized. And then there has been a range of indirect conventional results, adding to more disruptions, another three-odd million dollars in drugs, and another half a million in cash seized. So you can see, notwithstanding our earlier discussion about capacity, that the commission is certainly, even in the conventional space, very focused on disrupting organised crime.

Senator BRANDIS: By the way, is the term 'disruption' used within your organisation as a term of art, as it were? What is the definition of disruption? Does it refer to organised criminal activity that is interfered with and stopped? How do you define disruption?

Mr Lawler: There is a definition. I will have Paul Jevtovic talk about that in a minute. But perhaps I could just give an example of disruption in the context of drugs in sport, which is very topical. We saw organised crime in what I have called legislative arbitrage—so, in a space where they can act in a way that in actual fact facilitates breaches of the WADA code and act in a way that is linked to importations but act in a space where it is very difficult to apply criminal sanctions to them. And that is because it is no offence to supply performance- and image-enhancing drugs. What we see by the report release is that the organised criminals—certainly the ones we were principally targeting—have stopped operating in that space.

Senator BRANDIS: So, if you anticipate by your early intervention an area of the operation of an organised criminal, even though there are no arrests, that is regarded as a disruption, is it?

Mr Lawler: It is a disruption. And sometimes they can be the most cost-effective deliveries of law enforcement capacity in that space, because sometimes the judicial processes that we have relied on for a very long period of time, and with which you would be very familiar, are not as effective for these threats that are coming from offshore—I have used the term 'impotent'—as they might have been in times gone by. And this is a phenomenon of globalisation and the nature of the global village we live in. But Mr Jevtovic may be able to give you a definition.

Mr Jevtovic: We use 'disruption' in the context of interrupting the flow or continuity of criminal behaviour and/or criminal enterprise. So that is principally the definition we apply when we say 'disruption'.

Senator BRANDIS: That makes sense to me, but if you actually get to the point of arresting criminals, is that not classified as a disruption but as an arrest? Mr Jevtovic: Given traditional performance measures around arrests, arrests will speak for themselves. Normally what we refer to as a disruption will be where possibly no arrests have occurred. But that is not to say that as part of a disruption arrests would also be applied.

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Senator BRANDIS: I understand. Thank you. Now can I take you back to where we started, and that is the reduction of 54 average staff positions. From what areas of the ACC will those reductions come?

Mr Lawler: That has not been determined yet. What we have been doing for the last number of years in the tight fiscal environment is properly understanding what capability the commission must have to meet these threats that I have spoken about, and to understand that in the context of a workforce and capability plan. That work is nearly complete and we have now, after strong consultation within the agency and with our partners, a very good understanding of what capability we will need going forward. And what we will do is support those capability areas, and in areas where we think that it is less of a priority we will adjust the resources accordingly. We would hope that that reduction will come from natural attrition. Of course natural attrition is indiscriminate and one has to manage that and indeed manage the skills set we have, particularly in the context of that capability work. So the short answer to your question is we have not identified the positions. But what we have done is a very solid piece of work around capability for the agency five years out. We will work to a plan to deliver a staffing to those capabilities to meet the needs of the commission and its partners.

Senator BRANDIS: Well, I can understand why, given that the budget has just been delivered and these 54 staff have just been taken away from you, you are not yet in a position to answer that question because you are still identifying which parts of the agency will lose the capability. What about the 36 staff that you lost as a result of last year's budget? Where did they come from?

Mr Lawler: I will need to take that on notice to get specific details of what positions. They will have come from natural attrition. Senator BRANDIS: But even those who came from natural attrition had been doing something before they retired and are presumably not being replaced.

Mr Lawler: That is right. Senator BRANDIS: So that is a degradation in the capacity of that part of your agency. Mr Lawler: That is right. There is no disguising the fact that the positions have gone, or will go. Senator BRANDIS: Can you take that on notice, please, for both the 36 staff you lost in last year's budget and in respect of whom decisions will have been made by now, so that we can get a clearer sense of where they have come from. Mr Lawler: Senator, as a point of clarification on my last answer, I think I made the point about moving costs from the supplier side of the budget to the employee side of the budget. If we take, for example, the March figures of 2013—31 March, again recent figures—we had an actual ASL of 558 against an estimated of 547. So in actual fact what we have been able to do is by cutting that side of budget to be able to try and hold up these staffing numbers. But I think I said at the last estimates we have reached a point where I think we have achieved all the efficiencies we can from there. There may be some areas like learning and development where it has been cut too much. You cannot do that over a long period of time. And we think we are at a position where we will be required to meet that 504 target, and that will mean the reduction of 50-odd staff. Senator BRANDIS: And the corresponding reduction in capability.

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Mr Lawler: That is true. Senator BRANDIS: Thank you, Mr Lawler. CHAIR: Senator Furner, you have got a couple of questions. Senator FURNER: Mr Lawler, you went to some degree explaining just recently about the illicit drugs report and some of the successes there, about 23 tonnes of seizures. Are there any other seizures that you would like to notify the committee of that highlight their successes?

Mr Lawler: Thank you for the question. The reality is the Illicit drug data report this year was, I think, amongst the very best that have been delivered by national law enforcement, not by the Australian Crime Commission but by national law enforcement. It is a report that captures the work of the state and territory police, of the Australian Federal Police, of the Australian Customs Service, and of a range of other agencies working in that space. As you said, the number of illicit drugs seized continued to increase. There were just over 76,000 seizures, the highest reported in the last decade. There were 93,000 illicit drug related arrests, and indeed, each one of those arrests is an opportunity for redirection away from drugs; it is an intervention and it is a point in time where people can make a choice, and indeed a lot of them do. We heard the illicit drug data report from the CEO of Odyssey House, and we have been to Odyssey House and launched our report there, where you see drug arrests and the judicial system can assist in moving people away from drugs. 23.8 tonnes of illicit drugs were seized, and there was an 11-tonne seizure of hydro-phosphorus—that is a precursor chemical used in the manufacture of methylamphetamine, a particularly serious drug, a drug that has got all sorts of social ramifications, including that the people who take it are prone to higher levels of violence than might otherwise be the case, and there are reports, from treatment centres and indeed hospitals, of people who consume this type of drug being particularly violent and difficult to—

Senator FURNER: Is that the drug they commonly call ice? Mr Lawler: Methamphetamine is a broader category, but ice is included in that, and it comes in a number of different forms and is called by a variety of different names, but people commonly align ice to methamphetamine. It is not quite an exact correlation, but for the layperson I think that is important. The other area I would like to highlight in the question that you have asked is around clandestine laboratories, which were the highest on record—809 were detected. For the first time, the illicit drug data report identified that a significant number of those were small, clandestine laboratories, normally addict-based. These laboratories are set up in an indiscriminate way by people, and they are often mobile, from the boot of a car, so they might be in a shopping centre, near a playground or in a house somewhere. They pose very grave risks for the people in the premises, and often we find, and US studies show, that they are set up with children—often the parents are drug-addicted, but they have a number of children and the labs are actually in the house. They also discard the toxic substances that go in to make up these illicit drugs into the broader environment: into our creeks and waterways and onto our lands. And indeed, the commission had worked closely with the Attorney-General's Department and others around remediation guidelines where these clandestine laboratories were found, and often people who were renting properties to tenants found that they had been

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used for illicit drug manufacture and it causes very significant problems in how one remediates that property back to a state where it can be properly inhabited. So they are a couple of highlights from the report—as you have identified, Senator, I think a very good report, and a report that will be used more broadly in the community over the next year.

Senator FURNER: Yes. You did mention that it has been the highest number of seizures in the last decade. Can you give me some actual figures—if you do not have them at hand, on notice—on how that has increased over the last decade, please?

Mr Lawler: I can answer that in broad terms to say there has been a steady increase over the last decade. It has been mixed in relation to certain drug types, but, if you take it as a totality, what we have is the highest on record and a trend that is heading upwards. Senator Brandis's question was, 'Well, what does that mean?' Does it mean that the market is getting bigger? There is no question that we are a lucrative market; organised crime makes lots of money from drugs in Australia. Can I just say this for those who might be listening in another place: one of the things that does disturb me around the use of illicit drugs, particularly cocaine, and it is a very clear example, is that where people use cocaine socially and recreationally they are actually supporting the organised crime that is behind that. In particular, we see in the press the sorts of horrific crimes that are committed in places like Mexico and Central America, where there is whole scale intimidation of the judiciary, prosecutors and the police and, broader, governments, and that the people who are doing that in Australia are directly supporting that sort of activity abroad. I do not think that people normally make that nexus and my view is that they should.

Senator FURNER: Thank you for your opening statement, particularly the drugs and sport paper in February. Are you able to inform the committee of any evidence of changes in behaviour in respect of what occurred pre the report and post?

Mr Lawler: Yes, I am. I will just get a particular document if I can that does highlight the sum of them. As I indicated in my opening comments, I did not touch on all of them because of wanting to be brief. But if I can take it into four areas where there has been substantial change. I do not purport this to be the totality of it. Others could add to this, but I think we capture some of it. In relation to the sporting codes, they have improved or bolstered their integrity units. Reforms have been made to internal guidelines—for example, the AFL has banned sports scientists from injecting players at clubs. Preventative education programs are being developed by specific sporting bodies and the commission has been contacted to assist in that regard. Indeed, Mr Jevtovic has helped particularly the sporting code with such an initiative. Specific clubs are undertaking independent reviews and highlighting the specific issues in sporting clubs. Indeed, we have seen examples of that in the media.

Football codes have implemented a biological passport program. This aims to look at the effects of blood doping from multiple samples taken from over time. If we go to the community responses, sports players and members of the community continue to come forward with information. More information is coming forward about the harms caused by performance- and image-enhancing drugs, as evidenced in the recent press. As of the 31 March 2013, the ACC had 13,455 unique page views of the drugs in sport webpage and indeed over 6,500 downloads of the report. Law enforcement is seizing performance- and image-enhancing drugs at the Australian border, and I have spoken about those figures to the

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committee. Law enforcement continues to investigate organised criminals and outlaw motorcycle gangs supplying performance- and image-enhancing drugs and illicit drugs to Australian sports players, match fixing and other related investigations. There are reports that clinics supplying PEDs has not reopened since the ACC report was

released. The ACC continues to provide and receive intelligence from law enforcement partners on organised criminal activities linked to performance enhancing drugs. Of course, ASADA continues to undertake numerous investigations and it has reported that they have over 100 investigations underway.

In the area of legislative and policy reform, the government has provided additional funding of $3.46 million in the 2013-14 budget for ASADA and the National Integrity of Sport Unit. The Standing Council on Law and Justice has convened a working group to look at national legislative reform. The Therapeutic Goods Administration has restricted the sale of performance-enhancing drugs, issuing regulations that prevent Australian based suppliers from selling the drugs online without a prescription.

So you can see that in a very short period of time—a little over three months—there has been quite an extraordinary amount of activity in response to hardening the environment, which was the purpose of the ACC report, and, as I said earlier, that is not the totality of it. But I suspect, as we go forward, there will be more initiatives put in place, and I commend those who are responsible for those initiatives for the work that they have done.

Senator FURNER: Great. Thank you. CHAIR: We will stop for morning tea for 15 minutes. We will come back with Senators Madigan and Xenophon. Proceedings suspended from 10:35 to 10:51

Australian Federal Police

CHAIR: Commissioner Negus, good morning and welcome to you and your colleagues. Do you have an opening statement? Mr Negus: No, I do not.

Senator MADIGAN: Good morning, Commissioner. I assume that there is a war crimes section in the Australian Federal Police, is that correct? Mr Negus: There is a team within our special operations area that does focus on war crimes, yes. It is not named that way, but it has a component of people with experience in that area.

Senator MADIGAN: Does this group have a formal name? Mr Colvin: It is our special reference area. They deal with a lot of our more sensitive, difficult or political investigations as well as things like war crimes, yes. Senator MADIGAN: When was this group put together?

Mr Colvin: This team has been in existence in one form or another under different names for a decade or more. It is a headquarters-based investigations unit. Senator MADIGAN: How many personnel are involved in this unit?

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Mr Colvin: In special references? In a general sense, we draw from a pool of around 336 investigators. I may have to take on notice the exact breakdown for the special references team.

Senator MADIGAN: You can take that question on notice. Mr Colvin: I will have to. Senator MADIGAN: Are you able to tell me what sort of money is allocated to the budget for these investigations currently? Mr Colvin: For war crimes investigations, I would definitely have to take that on notice. Senator MADIGAN: Could you also take on notice how much has been spent in the last five years on war crime investigations. Mr Colvin: We can take that on notice. Senator MADIGAN: Are you able to tell me how many investigations it has carried out in the past five years? Mr Colvin: I can give you some statistics of referrals and investigations. I will give you two financial years worth of referral statistics. In the financial year 2011-12, we received five new referrals for war crimes allegations; we accepted four of those for investigations and rejected one. In the current financial year we have received a further four new referrals for war crimes matters; we have accepted two of those, and have two that are currently under evaluation. In the last two years nine matters have been referred to us, of which we are investigating six and evaluating two further ones. Mr Negus: Can I just add: obviously, there are a number of war crimes matters that predate the last two financial years. We have continuing investigations as well that go back a number of years. Senator MADIGAN: Over the years that this group has existed, how many briefs of evidence has it provided to the relevant Director of Public Prosecutions? Mr Colvin: I would have to take on notice how many we have provided to the CDPP. Senator MADIGAN: Further to that, I would like to know how many convictions have resulted as a result of your briefs of evidence. Mr Colvin: There have been no convictions under Australian war crimes legislation that we are aware of. If that is not correct, I will correct the record. Senator MADIGAN: How much has the Australian government spent to date on the Jakarta Centre for Law Enforcement Cooperation? Mr Wood: I can probably get that figure during the hearing. I do not have the data going back for the full period that JCLEC has existed, but I should be able to get that texted through to the team here and put it on the record during the hearing. Certainly, the expenditure in JCLEC is not just from the Australian government. There is a series of donors, particularly from the European Union or from the United States, who also invest. Senator MADIGAN: We can only deal with what Australia contributes, so that is what I would like to know. Mr Wood: I will get that for you, Senator.

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Senator MADIGAN: Are you able to tell me how many extradition requests the Australian government received from the Indonesian government in the past 10 years? Mr Negus: I think that would probably be a question for the department rather than the AFP, because they deal with matters of extradition.

Senator MADIGAN: What is the current status of the investigation into the deaths of the five Australian-based journalists in Balibo, East Timor, in 1975? Mr Negus: That operation is ongoing. It has been going for a number of years. It is one of the ones I was referring to that are existing matters. We have undertaken a range of inquiries overseas and we are currently awaiting on the results of those. I said at the very beginning of this, probably in 2009-10, that war crimes give rise to a range of complex legal and international matters. This was always going to be a difficult investigation after it was referred through the Attorney-General's Department from the deputy state coroner in New South Wales, after the hearing was there. We have endeavoured to collect all information possible, but we are still waiting on information to come back from overseas inquiries at this point. So it is ongoing. During that time, I might add, we have endeavoured to keep the families of the people killed in 1975 updated regularly on the progress of this matter, but, as I said, it is always going to be a difficult matter because the evidence that is required must be collected in overseas jurisdictions.

Senator XENOPHON: Can I just follow that on, Commissioner. Have the Australian Federal Police interviewed any witnesses in Indonesia, East Timor, Portugal, Macau or Australia?

Mr Negus: I think it is dangerous for us to step into who we have interviewed at this point. It is an ongoing criminal investigation. We have interviewed witnesses overseas, I will certainly confirm that. But, as a matter of identifying who those potential witnesses are—or even their locations—I think we are in dangerous ground of perhaps compromising the outcome.

Senator XENOPHON: So you cannot confirm whether you interviewed Guido dos Santos, an eyewitness to the killings? Mr Negus: No, I am not prepared to put that on the public record.

Senator XENOPHON: Does the fact that Mr dos Santos is now dead compromise you in any way? What is so funny, Mr Wilkins? I just want to know whether or not a person who apparently was an eyewitness to the killings, who is now dead, was interviewed?

Mr Negus: As you can appreciate, whether people were interviewed, whether they have been given an opportunity to provide information, may well give some sort of concern to other people who may be interviewed into the future, so we are not prepared to disclose those issues at the moment.

Senator XENOPHON: What if I were to suggest to you that maybe he was not interviewed. I am just worried that there could be key witnesses to these killings, to these murders, that, because of the effluxion of time, will simply die.

Mr Negus: Can I reassure you that the passage of time is of concern to the AFP as much as anyone. We have endeavoured to conduct this investigation as quickly as possible. There are very complex international arrangements—mutual assistance requests and those sorts of

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things which I cannot really go into any more detail about—which by their very nature take some time. The AFP has had investigators working on this for a long period of time. We take this investigation very seriously, and those who can be interviewed and are available to be interviewed and can be lawfully interviewed will be done so as quickly as possible. That is really all I can say at the moment.

Senator XENOPHON: But in order to interview someone as quickly as possible, as you say, does that in part depend on, for instance, the cooperation of the police force or military in Indonesia?

Mr Negus: In whichever jurisdiction the person would reside, yes, it would require that cooperation. Senator XENOPHON: Can you tell us how often the Australian Federal Police have interacted with the Indonesian National Police on this investigation?

Mr Negus: No, I am not prepared to talk about interaction with any jurisdiction throughout this investigation. Senator XENOPHON: So you cannot tell us whether there has been any interaction with the Indonesian National Police?

Mr Negus: I am not prepared to put on the public record the investigative practices or processes that have taken place in this investigation because it remains ongoing, and to do so may compromise our ability to collect evidence from those locations that you are talking about.

Senator XENOPHON: I am in contact with two of the families of the deceased, the Balibo Five. I think we are trying to arrange a meeting with one or two of them with the Federal Police and I am sure that will be arranged shortly. They have posed this question to me. The coronial inquiry referred this matter back in 2007.

Mr Negus: It certainly did not come to the AFP in 2007. I think the coronial process took place then. It was then referred through the Attorney-General at the time, through to the Attorney-General's Department and then to the AFP for investigation. I think it was 2009.

Senator XENOPHON: Okay, so it has been four years now? Mr Negus: Yes, it has. Senator XENOPHON: Can you at least indicate whether any evidence has been collected in relation to this matter? Mr Negus: I can say we have certainly spoken to a number of witnesses, we have put in requests for material which we think will be important in the investigation and we have sought extensive legal advice about a range of possible charges that could be levied. There are issues of time, issues of reciprocal offences and issues of whether a state was considered to be at war or not at war. These are all very complex issues which our investigators are working their way through. The main issue, as I said, around the time is that requests are made in foreign jurisdictions for support and assistance and it takes time to get those answers back, which is beyond our control. Senator XENOPHON: Are you frustrated about the delays? There clearly have been delays in terms of questions for either requests for assistance or specific questions made in relation to the deaths of the Balibo Five.

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Mr Negus: I would have liked to have seen this done more quickly, but I understand the process, I understand that this is not unique to this investigation and that sometimes these things do take quite a while to resolve. As I said, it is a very complex legal environment as well as a complex environment in which to conduct an investigation.

Senator XENOPHON: Is it appropriate for the AFP to seek the advice of the Department of Foreign Affairs and Trade in terms of opening diplomatic channels, if that seems to be a blockage point?

Mr Negus: I can assure you that we have regular contact with the Department of Foreign Affairs and Trade, as we do with the Attorney-General's Department and as we do with any other government agency that could assist us in working our way through this.

Senator XENOPHON: I appreciate that this is a very sensitive matter, but Shirley Shackleton—who is in her 80s now—wants some resolution in relation to this. Have you actually moved past the legal analysis? In other words, are you now in the evidence gathering stage?

Mr Negus: We have been gathering evidence for some time. Whether that evidence can eventually support a prosecution is yet to be determined. Senator XENOPHON: My understanding is that Professor Ben Saul has provided an opinion that says that there is jurisdiction here in terms of a war crimes prosecution.

Mr Negus: We have a range of legal advice. As I said, it is a very complex area and I would certainly not be able to take one set of advice on a particular set of issues as being gospel on any of this, because there are a range of considerations.

Senator XENOPHON: Okay. The New South Wales coroner relied on Professor Saul's opinion to commence the coronal inquest a number of years ago—why can't the AFP rely on the same opinion?

Mr Negus: The fact that we evaluated the referral from the state coroner through the Attorney-General's Department and we accepted this for investigation was an acknowledgment that, prima facie, there needed to be an investigation to get to the bottom of whether or not a prosecution was possible and whether it was possible to collect sufficient evidence to put a matter before the DPP and ultimately the courts. So we accepted that at the time, and we have been, for the last four years, working very hard to try and collect sufficient evidence to put that matter before the DPP and ultimately the courts if possible. So, prima facie, we have accepted that—we would not conduct an investigation if it were impossible at law, if I can put it that way.

Senator XENOPHON: I think that Mark Tedeschi QC accepted and used this legal opinion of Professor Saul. Mr Negus: I do not doubt the legal opinion. As I said, we have a number of legal opinions, including some from really pre-eminent Queen's Counsels in this country, about jurisdiction and about issues such as that, which we are considering as part of the whole process. It is very difficult for me to explain this on the public record as a current investigation, but I can assure you that our will to see this to a conclusion is very strong. I cannot promise you that it will ever see a conclusion in the courts, because there are a range of difficult issues which we are still working through, but, as I said, we are doing our best to resolve the matter to a point where we can make judgements about that.

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Senator XENOPHON: My final question on this, subject to my colleague Senator Madigan, who also has a very keen interest in this matter, is: do you have an ongoing funding commitment from the Australian government for this investigation, and is there any sunset clause related to this investigation?

Mr Negus: We do have funding as part of our base funding. It is discretionary, and we can use that as we see fit. To this point, to give you an idea, we have spent around $470,000 on the investigation over that four-year period. That is wages as well as inquiries.

Senator XENOPHON: That was the amount that I asked about several estimates ago, I think, so not much has been spent in the last 12 months? Mr Negus: That is right, because we are waiting on material from overseas jurisdictions before we can actually take this any further. There are still inquiries ongoing. They are not high-cost inquiries, but we are doing what we can. Can I just say too that, for the families— and I know you have mentioned Shirley Shackleton—we have done our best to make sure they are kept up to date in the process. We have not given them false hope that this is going to be easy, but we accept their keen interest and their keen will to see this to conclusion, as we do. But we have to understand how difficult this is. When we first announced this in 2009, I think I might have even been acting commissioner at that time before I was sworn in. I have the statement I made. I said: 'Allegations of war crimes give rise to complex legal and factual issues that require careful consideration by law enforcement agencies before deciding to commence an investigation.' We did decide to commence the investigation because we thought there was sufficient there for us to go forward. It has been a difficult process, a very complex process, as we predicted in 2009, but our will to see this to a conclusion remains.

Senator XENOPHON: Hopefully, I will be able to get some more detailed answers in the course of a briefing of family members that I will be attending. I need to ask you a series of questions in relation to the Surveillance Devices Act and the Telecommunications (Interception and Access) Act. I think I gave you a heads-up before we commenced. The context of this is the reports coming out of the United States that the US Attorney General, Eric Holder; the Obama administration; and the Department of Justice are currently the subject of widespread scrutiny and criticism for obtaining telephone records for more than 20 separate lines assigned to the Associated Press and its journalists. The issue is that that does not require a warrant. That is United States legislation. Is it the case under the Australian legislation, particularly under sections 178, 179 and 180 of the Telecommunications (Interception and Access) Act, that, in order to obtain the phone records and the phone data and also presumably the Facebook and Google data of a person, you do not actually need to get a warrant?

Mr Negus: Non-content data—that is correct; we do not need a warrant. I might introduce Deputy Commissioner Mike Phelan, who heads the area responsible for this and has given extensive evidence to the Parliamentary Joint Committee on Intelligence and Security, which has been considering this and data retention and a range of other issues. I will ask Deputy Commissioner Phelan, who has much more knowledge about this than I, to respond.

Mr Phelan: As the commissioner said, we have given extensive evidence to the Parliamentary Joint Committee on Intelligence and Security, who are currently doing an inquiry into changes to telecommunications and national security legislation, and a lot of our

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evidence is obviously on the public record there. We have given details about what the powers are to intercept content and the difference between content and non-content data. You are right: when it comes to non-content data, under the Telecommunications (Interception and Access) Act the AFP can have access to that data by way of an internal authorisation. That internal authorisation is done at the superintendent level and under those three particular sections that you called out. The first one, which is the majority of our requests, has to be to enforce the criminal law. The second category is in relation to missing persons, and the third one is in relation to enforcing a pecuniary penalty order. I have some statistics here for last year, if you are interested in how much—

Senator XENOPHON: Sure. I want to drill down into how many authorisations were made under those sections over the past five years, for instance, or even for last year will do, and you can take the others on notice.

Mr Phelan: I have got the last two years right in front of me. Senator XENOPHON: That is fine. How many? Mr Phelan: These are for the last two financial years. In 2010-11 we did 50,841 requests. Under each of those particular sections: under 178(2) we made 49,977; none in relation to missing persons; and 864 in relation to enforcing of pecuniary penalty orders. In 2011-12, under section 178(2) it was 43,006; in relation to missing persons it was 73; and in relation to pecuniary penalties it was 283. Senator XENOPHON: Does that relate to getting access to Facebook and social media sites as well? Mr Phelan: No, because things like Facebook, Google and so on are overseas. Depending on the entity themselves, if we want to get details of those particular individuals we have to make a request to the United States and, more often than not, that requires some sort of mutual assistance request. Senator XENOPHON: Are there requests? Have requests been made to the United States in relation to Facebook and Google? Mr Phelan: We have made a number of requests over the time. Senator XENOPHON: On notice, can you tell me how many requests have been made? Mr Phelan: We should be able to find that out. Senator XENOPHON: Were they in the dozens or hundreds each year? Mr Phelan: I cannot say. Senator XENOPHON: During this time, did any carriers or carriage service providers not provide information in response to requests made? Mr Phelan: Yes. From time to time, they actually do not have the information available. This is subject to the current review at the moment. When we request information—for example, for subscriber details—under 178, we might also be after details of IP addresses and details as such. If a content service provider does not have that information, because they have not kept it in their database or their systems do not allow them to keep that information, then we do not get a request back. In terms of refusals, no.

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Senator XENOPHON: It is sometimes: 'We can't provide because we just simply do not have it.' Mr Phelan: No, it is a lawful requirement to provide it.

Senator XENOPHON: How many of these authorisations were made in the context of investigations into suspected unauthorised disclosure of government information—in other words, leaks?

Mr Phelan: I cannot tell you. That information, whilst we would have it, would be extremely difficult to be able to pull out. We would have to do it investigation by investigation. I say that because when we gave evidence before the parliamentary joint committee we were asked very specifically around different crime types in relation to drugs, fraud et cetera. We would have to go back through every single one of these investigations and see whether or not on our system we made these specific requests. So trying to drill down—

Senator XENOPHON: But you can provide that information on notice? Mr Phelan: It is there. I do not know if we would be able to extract it out. I cannot give you an unequivocal— Senator XENOPHON: We are talking about, for instance, section 70 of the Crimes Act: an unauthorised leak of information from a public servant to a media organisation or, indeed, to a member of parliament. Surely you would have some idea whether there were any authorisations in respect of that?

Mr Phelan: Yes, we do. The information is there. I am trying to explain to you that it would be problematic to pull it out. Senator XENOPHON: The two relevant sections of the Crimes Act are sections 70 and 79. Surely you would have an idea whether it is in the dozens, hundreds or thousands each year where you get these phone records in respect of leak inquiries.

Mr Phelan: I could say that any particular investigation, depending on the complexity of the investigation, would determine how many of these particularly inquiries we would make. In some it would be not so many; in some we would make a lot. I could tell you, though, that the vast majority of the 40,000-odd we made in 2011-12 would be relating to serious and organisation crime investigations. I can take it on notice, Senator.

Senator XENOPHON: Are you not in a position to tell the committee how many referrals there have been under sections 70 and 79 of the Crimes Act for those authorisation powers, particularly under section 178 of the Telecommunications Interception and Access Act?

Mr Phelan: It is a two-step process. First of all, we have to find out how many of those investigations we have in relation to those particular sections, which someone else could probably give evidence on. Then, we would have to extract out of those investigations how many times we have made requests under section 178 for information. So it is possible.

Mr Negus: Senator, I think I know where you are heading. It would be rare, when investigating a leak matter, that we would not use this capability. Senator XENOPHON: Right, and I am trying to establish how many times it has been used.

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Mr Negus: I think if we were able to tell you how many leak investigations we have conducted in the last 12 months, which Mr Colvin may have the details for, we could answer that. Whether there were multiple requests within a particular investigation is more problematic because we would not disaggregate those numbers down unless we went through manually the 48,000 or the 50,000 that we have talked about here.

Senator XENOPHON: But there could be several hundred for instance in terms of leak investigations. Mr Negus: We do not get several hundred leak investigations per year. As I said, Mr Colvin might have the details of how many leak investigations we have run, but it would be rare for us not to use this capability. This capability is a standard investigative capability which helps us get to the essence of whether or not something has taken place.

Senator XENOPHON: I appreciate what you are saying, but the fact is a journalist who has their phone records obtained, and you can usually triangulate with the data as to who they were talking to and when, would be none the wiser that their records had been obtained, would they?

Mr Negus: No, they would not. But, in my experience, most journalists are astute enough not use their own telephones when they are doing this sort of stuff. Senator XENOPHON: Then let me go to a group of people that are maybe not so astute: members of parliament. The situation is that you do not need to get a warrant for the phone records of members of parliament. You can access their phone records.

Mr Negus: No, we do not. I just want to be very clear that this is non-content data. So not the essence of what is in the telephone call, but when the phone call was made, the parties it was between and the time and duration. That is what we are after.

Senator XENOPHON: Okay, but you would know whether members of parliament were the subject of these authorisations, would you not? Mr Negus: Yes, we would.

Senator XENOPHON: Would it be fair to say that members of parliament have been the subject of these authorisations? Mr Negus: Again, I cannot comment on that.

Senator XENOPHON: Why not? I am not asking for the names of the members. Mr Negus: I am not sure, to be quite honest. I can say that this is not used willy-nilly. This is something that is lawfully done under the act. It needs to be an investigation of what is considered a criminal offence. You mentioned sections 70 and 79. These are criminal offences which the AFP are charged to investigate, and this is an investigative tool. Really, members of parliament are no different to anyone else in the community. Senator XENOPHON: I am not suggesting that. Mr Negus: If there is evidence that can be obtained from that process then we would take all reasonable steps to present that to the courts. Senator XENOPHON: Yes, although for some reason people within the public service who have information that they believe is in public interest, in the absence of adequate whistleblower protection laws, tend to ring members of parliament and want to share

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information that they believe is in the public interest that could be of use for a Senate inquiry, for instance. Mr Negus: I understand that, but where it is alleged to be a breach of the law it is our duty to investigate the matter and then it is a matter for the courts to interpret whether it is in the public interest as a whistleblower or something that has been a breach of the law.

Senator XENOPHON: So you cannot tell me, Commissioner or Deputy Commissioner, how many leak investigations there have been in the last 12 months? Mr Negus: We have those figures now.

Mr Phelan: In the current financial year we have had five referrals to us of which four are being investigated, and one of them is under evaluation. Last financial year, 2011-12, there were five new referrals; two of them were investigated and three of them were rejected.

Senator XENOPHON: But once you get those phone records you can use them for other purposes, in the sense that you can establish who has been talking to whom at a particular time and at a particular location. There is nothing to stop you from using it for other purposes.

Mr Phelan: Yes. I am on the public record as saying that once that information is given to the AFP it stays in our database. Senator XENOPHON: So you can get a journalist's sources, in a sense, even on other stories?

Mr Phelan: We will know the numbers they have called. Whether or not we have gone to the next step of making further requests under section 178 to find out who those numbers belong to is a matter for the investigations team on a case-by-case basis.

Senator XENOPHON: Can you say where these referrals come from? Are they from the Attorney-General's office? Are they from a particular ministry? Mr Negus: That extension that the Deputy Commissioner has talked about would only occur if further criminal activity had been divulged. This is not a fishing expedition; it is not treated as such. This is to really interrogate the criminal offence that is being investigated and to look at possible sources of that investigation. Again, because it remains in our database from that point forward, it is not accessed unless there is another criminal investigation that is being investigated.

Senator XENOPHON: For instance, under section 79. But, to me, it does not seem so much a fishing expedition as a deep trawling expedition because you can actually get all of their phone records and work out who they have been speaking to over a considerable period.

Mr Negus: For a lawful purpose, and it is under the act. This is not something we have made up; this is the law. It is a tool that we use. It is a tool that we use very responsibly. The PJCIS is considering all these issues in reviewing the act.

Senator XENOPHON: Sure, but my understanding is that these records can actually go as far back as 10 years. Is that fair enough? It goes back a number of years. Mr Phelan: We could get records back that far, if they existed. As a general rule, though, the vast majority, I mean over 80 per cent, of our records would go back six months at most.

Senator XENOPHON: In terms of what you do with this information, what mechanisms are there for oversight?

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Mr Phelan: For these particular sections of the act we have to report back to parliament on their use in terms of the numbers of them, and any other oversight is internal, just like all the other business that we do.

Senator XENOPHON: I understand the importance of the work that you do with organised crime and drug smuggling, and I respect that. But, when it comes to issues of sections 70 and 79 of the Crimes Act, you actually build up a pretty incredible database, that could go back a number of years, of, for instance, a journalist or even a member of parliament; who they spoke to; and who they have been speaking to over a number of years. You have quite a database under this authorisation power.

Mr Phelan: It is not as simple as that. Every time we make a request, we have to have a legitimate reason to do so. Whilst we might have one in the very first instance to do, for example, a call charge record on an individual because we are trying to track down the leak, whether or not we actually trace down all of the other ones—the numbers that have been called—we have to do on a case-by-case basis. If something is historic and in the system, we have to have a new nexus again to be able to go back and check the details of those phone numbers.

Senator XENOPHON: What treaties govern the process of trying to get something from Facebook or Google? Mr Phelan: It depends on which country it is. Google and Facebook are in the United States, so generally those companies will not hand over the information to law enforcement agencies without some sort of request from the United States government, which we request through mutual assistance in criminal matters.

Senator XENOPHON: Could you tell us how many, including Twitter? Can you do a request on tweets? Mr Phelan: Yes, we can make those requests. Sometimes we get things on a law enforcement to law enforcement basis, but sometimes we do not.

Mr Negus: Again, this is more a matter for the department. We would make a request through the Attorney-General's Department, and they would be the agency who would make a formal request to the US authorities on our behalf.

Senator XENOPHON: Deputy Commissioner Phelan, there is a software program, I think it is call Analyst Notebook, that can crunch all of these details to sort of work out who has been talking to whom. Is that the software program you use?

Mr Phelan: We use it sometimes, but we have other programs as well. Senator XENOPHON: Okay, but it is one of the programs that you can use. So you can mine a fair bit of information from these records of journalists. Mr Phelan: Not just journalists—if we have any journalists in there.

Senator XENOPHON: No, I am talking about sections 70 and 79. Mr Phelan: We can. We can analyse that data, and that is the purpose of why we get the data: so that we can analyse it. Mr Negus: Senator, I have one final point. We have talked about sort of relativities here. I think, in broad terms, last year the AFP investigated over 4,000 matters. Five of those were leak matters. So it puts in perspective the broad range of investigations we do, and this is a

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very small part—a very important part—in the access to this material and we have said that to the PJCIS in their considerations of this matter, particularly with how long they will hold content data for us to go back. The state police have also expressed their concerns about this for cold case homicides, for organised crime investigations and a whole range of things where these can be really important opportunities to put patterns together. I know you acknowledge that.

Senator XENOPHON: Yes, I do acknowledge that. Mr Negus: As I said, from a context perspective, there are over 4,000 investigations per year and we are talking about five leak investigations, which may bring into focus the sorts of things you are talking about. Senator XENOPHON: And you have my full support in those terms, but I guess I have a different view of section 70 and 79. Mr Negus: I understand that and there have been many views put forward to the PJCIS on this. It is a very emotive issue and an issue people have strong opinions on. What we would like to see is a balance in all of this. We expect appropriate oversight. We expect appropriate legal authorisation for the more intrusive aspects of what we do. We accept all of that without question. But we also need the tools to continue to attack organised crime in the way we do. Senator XENOPHON: Can you advise, on notice, whether any members of parliament have been the subject of these authorisation orders? Mr Negus: I do not think we could. I mean, we do not specify real estate agents or anyone else for this process. Senator XENOPHON: You are elevating us you know, comparing us to real estate agents! Mr Negus: I hesitated because I did not want to bring too many people into the mix, but we do not categorise people by what their job is, whether they be journalists, members of parliament or police officers. Senator XENOPHON: Commissioner, come on—you know very well that members of parliament are more likely to get information about malfeasance or from a whistleblower than a real estate agent, from someone in the public service. I am not sure that Century 21 Belconnen gets too many calls from people dissatisfied with— Mr Negus: You may be surprised! But can I take that on notice? I will have a look at what I can disclose to you. Senator XENOPHON: Why can't you tell us whether any members of parliament have been the subject of these authorisations? Mr Negus: Well, I do not recall any, off the top of my head, and we are talking about five investigations of leaks in each of the last two years. I do not recall any. These things are not done without proper consideration of the requirement here, and also understanding and respecting some of the issues you have raised here; that is certainly part of what we do. I cannot recall any off the top of my head, but I will take it on notice and see whether we can supply you with any information or whether we think that is stepping too far across the line. Senator XENOPHON: And in the meantime I will use a friend's SIM card in future. Thank you.

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Senator PARRY: Senator Xenophon mentioned the question of what the oversight mechanism is in relation to operations of the Australian Federal Police. Would you agree with the statement that the Parliamentary Joint Committee on Law Enforcement has a particular direct oversight of the Australian Federal Police and can ask these sorts of questions in camera as well as in public session?

Mr Negus: Yes they do, and there has been quite substantial evidence provided in camera about the sort of covert and other activities that the AFP and other law enforcement agencies undertake for the advice of parliament.

CHAIR: Mr Wilkins, we just got a query from Senator Madigan in relation to the number of people who have been extradited. Can your department answer that question rather than the AFP?

Mr Wilkins: The people who deal with that were here last night. You wanted it in group 3, right? CHAIR: That is group 3. So you will probably have to put that question on notice, Senator.

Mr Wilkins: If you put it on notice, Senator, that would be best. Senator LUDLAM: Commissioner, thanks for joining us. I have a question relating to uses of Section 313 of the Telecommunications Act to block websites. Commissioner Negus is doing so at the moment. Mr Wilkins: There were people here last night to answer these questions and that could have been raised then— CHAIR: Is that also group 3? Mr Wilkins: in group 3. Senator LUDLAM: I will explain the context, but in a moment. I have been referred here by another agency who refused to answer a question and said I should talk to the Attorney-General's Department. But let us come back to it and it might be disclosed as we go. Commissioner, the Federal Police uses Section 313 notices under the Telecommunications Act to compel internet service providers to knock out a subset of content listed by Interpol— their so called 'worst of' list—and maybe you want to just track back for us the history of when you first started issuing those, and how you think that process is going. Mr Negus: Thank you for the question, I will again pass to Deputy Commission Phelan, who is in charge of our high-tech crime operations area, which monitors these things. Mr Phelan: The information that I have here is that the first time we started to issue 313 notices specifically in relation to blocking websites was in relation to the Interpol 'worst of' list on 24 June 2011. Senator LUDLAM: To your knowledge, has the AFP used that section or powers authorised by that section of the act in that way before to knock content out of websites? Mr Phelan: Yes, we have. Previously, we have used section 313 as part of the mitigation strategies from the joint banking and finance team within the Australian high-tech crime centre. That commenced in about May of 2004. Those were traditionally used to block foreign IPs hosting muling, phishing and other malware sites.

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Senator LUDLAM: So that is not really so much about knocking content out; that is if there is malicious software that is emanating from a particular server? Mr Phelan: Yes, that is right.

Senator LUDLAM: Is there anywhere I could find background on the history of the sorts of activities that section of the act has been used for? My inclination was that it had been used in that way. Can we find how many of these notices are issued in an average year since '04, for example?

Mr Phelan: I am not sure if we would have that information. We do not keep records around that generally. Ever since we have aggregated it in the high-tech crime area in relation to child exploitation material, we have got very distinct numbers of how many we have done in that period of time.

Senator LUDLAM: I understand that. I am just trying to get a sense of how else the Federal Police uses these notices because now it appears that ASIC and one other agency— and I am seeking to find out from within this room who that is—are using them. I am just trying to get a constrained idea of how the Federal Police uses them.

Mr Phelan: Section 313 is not limited to blocking websites. It is a requirement that content service providers, ISPs or telecommunications carriers do everything in their power to assist law enforcement and stop offence against the criminal law. It is not only about blocking websites. The Australian Federal Police do use that section for other requirements that we do have that are not related at all to blocking websites—that, as a matter of fact, have nothing to do with websites. They are about carriers assisting the AFP in lawful duties under warrant et cetera. To be honest, I do not want to go into that component. It is very sensitive operational material.

Senator LUDLAM: I am not seeking information on that. I am seeking more information on the rather more novel use of that section of that act to take out content which you have just told us you first started doing against the Interpol list a year or so ago.

Mr Phelan: Yes. Senator LUDLAM: Before that, to your knowledge, had the Federal Police used that section of that act to knock content out or was it being used more for these broader array of activities you are describing now? Mr Phelan: No. It was mostly used for the blocking of the content. Having said that, in relation to malware and that sorts of things, we have stopped using it for that purpose. Senator LUDLAM: Why is that? Mr Phelan: Because it is not an efficient method. We have found that over time it is much more useful and, in fact, far more valuable to get in contact with those who are hosting the material and block it at the source, and get them to just tear down the sites and so on offshore and work with the companies and countries that own the domains. That is a far more useful method than trying to block it from here. When we block here, we block a particular domain. We do not go for the IP address. Senator LUDLAM: That was where ASIC has gone and tied their own shoelaces together and overblocked about 1,200 sites. As far as you know, in terms of knocking content away,

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because this did not attract a huge amount of controversy when it was announced, the only time you would use those notices in that way is to block against the Interpol list. Mr Phelan: Absolutely correct, yes. Senator LUDLAM: How well do you think that is working? Have you noted any hiccups

or hitches in the administration of that scheme? Mr Phelan: No, the advice we have got from the ISPs is that it has not slowed down their sites at all. We have no complaints from them. For the ones we have sent notices to, they are all at different stages about where they are at in terms of blocking content. Some are helping at the technical stage and others are working through what they need to do. We have had no complaints so far. I may also add that we have not had a discernible increase in the number of referrals either. The way it works is this: the sites redirect someone who tries to access those sites to the Interpol site. That is the way the AFP works.

Senator LUDLAM: Yes, I am familiar with that. ASIC is using these notices to knock out certain categories of sites and there is an overblocking instance. There is one other agency—I was just told before by the minister for communications—within the Attorney-General's portfolio also using these notices. Could somebody at the table illuminate me as to who that is?

Mr Wilkins: Sorry, we do not comment on national security matters, Senator. Senator LUDLAM: So it is a national security agency? Mr Wilkins: We do not comment on those matters. Senator LUDLAM: So it is a national security agency? Mr Wilkins: We do not comment on those matters, Senator. Senator LUDLAM: You are commenting. You just told me it is a national security matter.

Senator Ludwig: No, he said that he was not commenting on it. Senator LUDLAM: I did not ask whether it was national security. Somebody within the Attorney-General's portfolio, which is significantly broader than national security, is using section 313 notices to knock content off the web. Mr Wilkins: It is a national security matter. We are not commenting on it, Senator. Senator LUDLAM: That has been very useful. Thank you, Mr Wilkins. So, back to the AFP. ASIC and one other national security agency is using these notices to knock out particular categories of content. I will not comment on this agency, which will not be named for some reason, but as far as ASIC is concerned, this content is unlawful and is therefore being knocked out for that reason. Does the AFP consider the use of these notices for other forms of unlawful content, whether it be for copyright infringement, or take a pick of all sorts of material, that these notices would be used to take that content out, and if not, why not? Mr Phelan: The short answer is no. We do not have plans. Senator LUDLAM: Why is that? There is content out there that you know to be illegal and you know other agencies are using these notices to compel them to be taken down. Why would you not use them in that way? I am not inviting you to; I am just wanting to know what the rationale is to why you are not.

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Mr Phelan: We are trying to do what we can to stop the abhorrent at this stage, obviously the crimes of child exploitation. We are doing everything we possibly can, that is lawfully available to us to do everything in relation to this.

Senator LUDLAM: And this is one of those matters. Mr Phelan: We obviously cannot prosecute everybody, so this is about trying to stop it at the source so that people do not even have access to the site. I have no doubt that it is labour intensive from our point of view. At this stage we are concentrating our efforts on that particular crime type because we think it is effective. Not only that, I might add that there is a fair bit of rigour that goes around what sites to block. Senator LUDLAM: I think you will find that is why there has not been a huge amount of controversy over the practice of blocking. Mr Phelan: I think that is a part of what you are saying. There is a lot of rigour that goes around which sites to block. Blocking a site is not just a routine thing to do. It is a very important step, and something that we do not take lightly, therefore, there is a lot of rigour around it and that is why we pursue it in relation to child exploitation material. Senator LUDLAM: It is not entirely the question I put to you though. Is there any reason why you are not using it to knock out other categories of sites, as you would appear to be lawfully enabled to do? Mr Phelan: No particular reason, I suppose. If we wanted to block those sites, and it was within our power, I suppose we could. Senator LUDLAM: I am telling you it is within your power. It appears, on my reading of the law, to be entirely within your power. You are choosing not to. Mr Phelan: Well, it is not that we are choosing not to; we are choosing to do it on the other sites, I suppose. Senator LUDLAM: You are choosing not to do it for other categories of sites. I am not trying to entrap you here; it is just my plain English reading of it. Mr Phelan: In law enforcement there are many conscious decisions one has to make to do everything, such as search warrants on all sorts of crime types. We cannot do everything to everybody and at this stage we have made a very conscious decision that we are going to use these rather intrusive powers to do this particular thing at this stage. Senator LUDLAM: Thank you very much. Thank you for your time. Senator HANSON-YOUNG: Commissioner, my questions follow on from a number of things that we have talked about in the past in relation to detention centres, namely in relation to the report this week on the 7:30 program. As you would be aware, Sergeant Brendan Thomson made allegations during that program about the evidence that the AFP gave to the select committee investigating the detention centre network in Australia. I was a member of that committee, so I am very interested to get to the bottom of this. The claim that Sergeant Thomson puts forward is that evidence given by the AFP to the inquiry was misleading in relation to the conditions as the AFP saw it within the detention centres and the level of tension and volatility. Do you stand by your statements to the committee? Mr Negus: Yes. Senator, I certainly do on behalf of the AFP. There were a number of officers who obviously gave evidence to that committee and with all committees we

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endeavour to give, in good faith, all the information available to us to support the committee. After the 7.30 Report aired on Monday night, I put out a statement, I think it was around midnight, refuting the allegations that were made by Sergeant Thomson. I have to say after seeing the allegations on the 7.30 Report they are serious, and to make sure that these are properly investigated I have referred that matter to the Australian Commission for Law Enforcement Integrity for them to independently review those allegations and look at it. But I have re-examined the evidence given, I have spoken to Assistant Commissioner Prendergast, who was the person subject of those allegations, and a current investigation will take place in due course. But he has reassured me that he stands by the evidence that was provided. I think there is a range of other details which I might make Deputy Commissioner Drennan to go through from a governance perspective of how these matters were dealt with with Sergeant Thomson. There are workplace dispute issues involving Sergeant Thomson which I do not really want to go into in this forum, but can I say they are complicated and had not yet been resolved and have been ongoing for a couple of years. He is on leave without pay at the moment and the allegations he has made, as I said, I would refute in the strongest way. However, given the seriousness of his allegations, we have referred it to ACLEI for investigation.

Can I say that originally Sergeant Thomson emailed me directly as the commissioner. I was away at ministerial meetings actually and came back two days later. I responded to him immediately myself and said that, whilst I thought he should have gone through his chain of command to report these issues or he should have reported to our professional standards if he thought that anyone's activity had been improper, I was going to seek urgent information in regards to the matters he had raised. I might just pass to Deputy Commissioner Drennan, who could then give you a sequence of events that occurred from there but it involved a number of reviews of the material that was submitted by Mr Thomson at the time. Mr Thomson has, in a subsequent email to me, acknowledged that he was not aware of the broader organisational priorities or other issues that were at play within this. He was specifically talking about his role on Christmas Island during that period of time. But if I can pass to the deputy commissioner, he might give you a bit more information about the process we have gone through in trying to manage this, and to reconcile some of the issues with Sergeant Thomson over the last couple of years.

Mr Drennan: Senator, I think a good starting point is to give you some key dates here which starts to put some of this into context. On 9 November 2010 Sergeant Thomson returned from Christmas Island to Australia. On 24 November 2010 he actually sent the email to the commissioner. It was on 27 November 2010 year that the resources he has referred to— that is, the six operation response group people—were returned from Christmas Island to Australia and it was some four months later on 11 March 2011 when the public order incidents commenced on Christmas Island. I may just note that on 27 November, when the six resources were returned to Australia from Christmas Island, there were still 32 AFP members on Christmas Island. A part of the strategy in withdrawing those resources was firstly based on the operational decision as to why they would be returned to Australia, and that was based on the intelligence which existed at the time, the conditions on Christmas Island, the operational experience of those people on the island, and the operational experience of those people who were making the decisions, being the executive of the International Deployment Group at the time. So they made that decision to return the resources and it was also on the

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basis of the strategy which would provide any surge resources which would be required to go to Christmas Island in the event there was a public order incident. When the public order incidents started to occur on 11 March 2011, within 24 hours there were additional resources on the island. Within several days there were approximately 200 AFP people on the island to deal with those resources. Having reviewed the use of force on the island, and the way in which the AFP responded to it, I can say that having six additional people there at the particular time that those incidents started to occur would have made some difference but not any significant difference at all.

I might also add that the specialist operation response group resources had been on the island for some considerable time. In the lead-up to the decision to redeploy them back to Australia on 27 November, they had not been used for some time. There had been instances within the detention centre of self-harm and some public disorder, but those matters had been resolved by Serco, who were the operators of the centre, or alternatively by the Christmas Island community police, who had responded to assist. The operation response group resources had been, what I would say, 'stood up', but had actually not been deployed to the centre.

To start to put into some context the mood in the centre and some of the things that Sergeant Thomson based his assessment on, yes, there were some isolated instances, but there were not instances or a mood in the centre which had dictated that we should not have redeployed those resources at that time. It was not until some four months later that those public order instances occurred.

If we start to look at the sequence of events concerning Sergeant Thomson, he emailed the commissioner on 24 November. As the commissioner said, he was not in his office at the time, but as soon as he received that email, it was given to a commander—a senior officer in the Australian Federal Police—to conduct an initial review of the information provided. That initial review determined that the issues raised by Sergeant Thomson did not reveal anything of significance that would require any immediate action or change of practices or decisions, but recommended that an independent management review be conducted to more fully consider the issues that were raised. That review commenced on 29 November by a senior AFP officer and that review found that some of the claims made by Sergeant Thomson only identified already known existing and emerging issues that had been considered by the IDG management; other claims had no basis or displayed a lack of the requisite corporate knowledge on the issue.

Since that time, there has been, as the commissioner outlined, a sequence of events which revolve around a workplace dispute. In an effort to try to resolve the issues with regard to Sergeant Thomson, we commissioned another senior officer who had no prior knowledge of the issues which had been raised and also had a level of independence—he had not been involved in the international deployment group prior to this time and also had dispute resolution qualifications.

Senator HANSON-YOUNG: Can I just interrupt, Mr Negus. I just want a direct response on this. After you received the correspondence from Sergeant Thomson, you passed that on to somebody else, yes?

Mr Negus: When I received it, I immediately asked for urgent advice about the issues he had raised. They were concerning to me because it was contrary to what I had been told by

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my senior level staff about what was actually going on. I responded personally to Sergeant Thomson to say that I thought he should have gone through his chain of command to make sure they were aware. However, I had asked for urgent advice on the issues he had raised. I did pass it on to get urgent advice from the line area as to whether there was any credibility to these allegations he was making.

Senator HANSON-YOUNG: To whom did you pass the email and correspondence from Sergeant Thomson? Mr Negus: It went to the acting head of the international deployment group, Commander Paul Osborne, and Commander Osborne then sought further advice from his staff with regard to that.

Senator HANSON-YOUNG: What were your instructions to Commander Osborne? Mr Negus: Essentially, that I wanted to know whether the claims by Sergeant Thomson at the time had any validity, because it was contrary to what I had been told as to the current situation on Christmas Island. Senator HANSON-YOUNG: Can we go back to the allegations raised by Sergeant Thomson around the meeting that happened and the phrase 'manufacture a situation'? What did that mean? Mr Negus: I do not know and I do not think we will ever know, other than that Assistant Commissioner Prendergast assures me it was probably a very poor choice of words. But what he was endeavouring to do was to reconcile the workplace dispute with Sergeant Thomson. I do recall the television program, and I certainly have not heard the recording because it was covertly done, but I understand it was at least a half-hour meeting. That was one line taken out of a half-hour meeting, which was an attempt to reconcile with Sergeant Thomson about the workplace dispute. I understand that Assistant Commissioner Prendergast was attempting to try and explain that different agencies on the island had different responsibilities, including the AFP, Serco, and DIAC more broadly. Senator HANSON-YOUNG: Having responsibility to respond to something is quite different to having responsibility to manufacture a situation. Mr Negus: I cannot speak for Assistant Commissioner Prendergast. He acknowledges it was a very poor choice of words. But I can assure you, from the AFP's perspective, that we would never do anything which would put anyone in danger or manufacture—to use that word—a situation which could cause the public to be put in danger, whether they be in detention or whether they be people on Christmas Island, or in fact my own staff. As the Deputy Commissioner has explained, there were still 32 people on the island after the six specialist tactical response people were returned, and there were no instances for the next four months where there was a requirement for those people to be redeployed back into that environment. When the riots did happen, in March, we responded very quickly and ended up with almost 200 people on the island to respond in that way. But I can assure you, and I have given this undertaking to the Secretary of DIAC already, that the AFP would never—and I repeat, never—do something which would put anyone in harm's way to prove a point or to try and delineate responsibilities. It is not the way we work, and it is not what we stand for as an organisation. So it was a poor choice of words by the assistant commissioner, but he certainly

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did not have any instruction or authority to do anything to manufacture—as we put it, in its worst interpretation—a situation which we then saw in March. Senator HANSON-YOUNG: The inquiry that ran was quite extensive. I know your officers sat in front of us numerous times—both on issues that were put on the public record and on those that were discussed in camera. The overwhelming view, I must say as a member on that committee and as a signatory to the report that we handed down, was that there was an understanding that the current conditions within the detention centre were not okay and that tensions were high. When you overcrowd detention centres and you freeze their applications and people do not know what is going on; it all builds to that level of tension. Mr Negus, I am not sure how closely you have looked at the evidence that was given to the committee, but would you agree with me that the evidence that was put forward did indicate that the conditions within the detention centre on Christmas Island were tense?

Mr Negus: The deputy commissioner has already indicated that the decision to remove the six people —I repeat, six, leaving 32 AFP people on the island—was made because the circumstances did not require those people to remain. There was a response capability put in place so that they could be redeployed within 24 hours.

Senator HANSON-YOUNG: Was that a mistake? Mr Negus: Based on the material available to me, no, it was not a mistake. I think we would all like to have 100 people sitting there in case something happens, but we have people deployed all around the world, in places like the Solomon Islands and in Timor at that stage as well. These specialist tactical resources had not been deployed for some time, or had been in very limited deployment mode—they were there on the island training, in readiness—and we had to make a judgement call on whether or not they could be brought back to Australia and redeployed to other locations. If something were to go amiss then we could redeploy very quickly, as we did, to respond to those issues four months after they were removed from that location. So these decisions are not made in a fleeting sense; they are very closely considered and it is a matter of trying to balance the risk with the treatment options available. And the treatment option was to respond quickly, as we did some four months later. Not always do the people on the ground understand some of those broader implications. As a sergeant on the island, Sergeant Thomson's primary responsibility was to try and ensure that he was doing his best to make sure that he was in a position to treat any risks that emerged. He was not aware at that time, and he has acknowledged this in an email back to me, of the broader resource requirements, of the financial constraints or other issues around the deployment of the operations response group. His primary responsibility—and credit to him—was a focus on the island. But that does not mean that his supervisors were in error in saying that there was a greater need somewhere else by putting in place a treatment program about immediate response. Senator HANSON-YOUNG: That does not directly address my question, though. There were reports, at least those that we know, that came from Sergeant Thomson about his belief of conditions on the island. Were those reports, and the information within those reports, included in the AFP's evidence given to our committee? Mr Negus: I am not sure if they were included in the evidence given to the committee. But certainly the review of the material provided by Sergeant Thomson, that was done by a superintendent, stated that nothing in Sergeant Thomson's material was new, or was not

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already known, to the IDG management when they made the decision to redeploy the six people back to Australia. There was no new information in there that would have caused them to change their mind on the decision that was actually made. Mr Drennan: I might add there that the information that Sergeant Thomson provided

formed part of the consideration in relation to the decision to bring the people back from Christmas Island to Australia. Albeit that he is saying that he put that information in, it was actually factored into the decision making. It was not as if it was disregarded; it did form part of the considerations. As the commissioner said, it was but one part. No-one is saying that there was not a level of I guess unease in the detention centre. We have said that there were some instances of self-harm and some disorder, but that was certainly manageable from within the resources that Serco had in managing the centre and within the community policing element of Christmas Island. There are two different things here in relation to the level of resource you have there, and what you need to respond to.

Mr Negus: One of the major concerns in the email that came to me from Sergeant Thomson was that he believed that an intelligence report that he had completed and uploaded into Promise—which is our case management system—had been removed from the system. He was wrong about that. Certainly the review that was conducted identified that the intelligence report that had been put in by Sergeant Thomson had remained in the Promise system and had been properly accounted for in that context. He claimed that someone had removed that, and he was concerned that there was some foul play at play here. But again the review showed that was not the case; that it had never been removed and it remained part of the process of decision making.

Senator HANSON-YOUNG: It was quite clear during the collection of evidence from the various agencies involved on Christmas Island—AFP, Serco, who we also interviewed as the private contractor and the Department of Immigration and Citizenship—that prior to the outbreak of tension on Christmas Island there were no clear protocols for how the agencies all worked together; how you communicate if you do believe there are issues of concern. It is one of the reasons that the inquiry recommended that there needed to be better protocols in communication and agreement between them all. Mr Negus, do you accept that that was evidence put forward to the committee, including from people from those various agencies?

Mr Negus: I was not at the committee, but clearly what you have said is not inconsistent with what I know to be the case. Yesterday, I heard the secretary of DIAC talk about how matters have been significantly improved. That includes the relationship between the agencies in dealing with these very difficult circumstances through that process, with large numbers of people in detention. I do not disagree with what you have said and I certainly would agree that matters have improved significantly as a result of the committee, and as a result of other actions taken by the agencies.

Senator HANSON-YOUNG: Are you concerned that the same types of conditions are building again to what they were in March 2011? Mr Negus: Obviously the numbers are around the same levels, so we continue to monitor the situation with DIAC and our partner agencies and put in place treatments accordingly. We have 45 people on the island as of today, but we also have response arrangements in place should our intelligence tell us that we need to have more people there to deal with whatever issues may be on the horizon.

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Senator HANSON-YOUNG: If you have 45 people there at the moment and overcrowding is an issue, the freeze on applications is back in place, how many people did you have on the island in March 2011?

Mr Drennan: There was 32 officers there at that time. I just might add to what the commissioner said in relation to the current arrangements on Christmas Island. There exists now, which did not exist at the time, a far more joined up approach in relation to the intelligence regarding the mood in the centre and any level of unease. That is to the extent that there is a daily operations report that deals with that issue and there is also a weekly intelligence and resources brief that comes personally to me to review, and in that it makes some assessment in relation to the level of unrest or potential unrest within the centres, and that is a joined assessment by Serco, DIAC and the AFP. If that assessment were to raise to any significant level that would cause us concern, then we would certainly deploy additional resources there as required. To be able to deploy those additional resources there, we currently have resources in Darwin, Perth and in Canberra that will be deployed to the island if required.

Senator HANSON-YOUNG: So they are different processes and protocols than were in place in 2011? Mr Drennan: Certainly. As you highlighted a moment ago, there were lessons which were learnt, there were things that were put before the inquiry, the committee, and recommendations that came from that which certainly improved the practices which were being used, and that is only right.

Senator HANSON-YOUNG: Okay, thank you. Could we just go back to a specific issues relating to Sergeant Thomson? On the 7.30 program's website they show an email that was sent around to all of the operational response group team by professional standards, Superintendent Greg Corrin, saying that anyone who makes contact with Sergeant Thomson has to report it like they would have to report a meeting with a criminal. Was there any disciplinary action taken against the person for sending this email?

Mr Drennan: Yes. There was an email which was sent around to the international deployment group special response group and it actually had nothing to do with Sergeant Thomson at all. It was reminding them of their responsibilities of reporting obligations were in a range of things which may fall under our professional standards or code of conduct. The reason for that is solely that these officers work in a range of different locations at a particular time and are not always back in headquarters where this stuff is more readily available, so it was a proactive attempt to ensure that they were aware of their responsibilities. Unfortunately, it was misinterpreted by one of our officers who then onforwarded it and made reference to Sergeant Thomson.

Senator HANSON-YOUNG: So there was an email that made direct reference to Sergeant Thomson? Mr Drennan: That is what I am saying. The officer who sent that misinterpreted the email which was sent out to all of the specialist response group and then made reference to Sergeant Thomson in that. It has since been explained to him that it was not an email which was sent in regard to Sergeant Thomson and he has withdrawn that. So it was a misunderstanding by him as to what the intent of the original email was.

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Senator HANSON-YOUNG: How does somebody misinterpret an email that is about meeting a criminal with Sergeant Thomson? Mr Drennan: That is certainly a matter for the officer to interpret as to why he came to that conclusion, but he certainly acknowledges now that that was an incorrect conclusion to come to. There was absolutely no relationship between the original email and Sergeant Thomson.

Senator HANSON-YOUNG: What disciplinary action has been taken, if any, against the person who edited the email, as you have suggested, to include Sergeant Thomson as the link to a meeting with the criminal?

Mr Drennan: I did not say he edited it. I said he misinterpreted what the intent of the email was and then sent a subsequent email. He has been spoken to in relation to it. Senator HANSON-YOUNG: Let us be really clear because I had envisaged that you said that he had forwarded it on and included Sergeant Thomson's name. What email was sent with Sergeant Thomson's name suggesting that any meeting with him would have to be reported as if it were a meeting with a criminal?

Mr Drennan: There was an initial email which was sent to the members of the special response group. That was then on-forwarded by the officer in which he included a reference to Sergeant Thomson. He did not edit the original email; he on-forwarded it. As I said, he mistakenly interpreted that to apply to Sergeant Thomson and that is where he made those references to Sergeant Thomson.

Senator HANSON-YOUNG: Did he say, 'This email is about Sergeant Thomson'? Mr Drennan: He mentioned Sergeant Thomson, yes. Senator HANSON-YOUNG: You said he has been spoken to? Mr Drennan: He has been spoken to. He realises the error that he made. It has been left there. I do not think a misinterpretation of the application of that is something which would require any further discipline than that. It has been dealt with as a management action.

Mr Negus: The officer involved has acknowledged he has misinterpreted and done the wrong thing. But I think in his own mind this has been an ongoing workplace dispute with Sergeant Thomson for a couple of years where now there is legal action afoot. The matters have been to Comcare and back. I think they are now going to the Federal Court in relation to this. There has been a FOI request as well in regards to things about Sergeant Thomson.

As a manager within that area I think he would feel that he would need to know if Sergeant Thomson, who still has many friends in the AFP, was contacting people trying to elicit information in regards to any material also knowing that the 7.30 was looking to do a story on this in the future. It does not defend what he did because he was in error and he has acknowledged that. From his perspective, he was trying to make sure that he as a manager within the area was at least aware of any contact being made by Sergeant Thomson to his former friends or colleagues within the workplace to try and gather more information in regards to the ongoing workplace dispute.

Senator HANSON-YOUNG: Was the original email in relation to Sergeant Thomson or not?

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Mr Negus: No it was not. It was a broad based email reminding people of their responsibilities. Where they come into contact with people, we have a thing called a contact incident report. It is not only criminals but people you think you should disclose an association with or a contact with. It is a broad based thing that applies to all of the AFP. This was misinterpreted by the officer involved in this area.

Senator HANSON-YOUNG: How often do you have to send these emails to remind your officers that they have to disclose meetings with criminals? Mr Wood: The professional standards area of the organisation is within my portfolio. We have an ongoing constant campaign around education of values and professional standards. The hub page, the internal intranet page for staff, always has a message of some sort about the values of the organisation, about behaviours, about code of conduct, and we mix that message up. So it is normal for us to be talking to our staff about what we expect of them in professional standards guidelines and requirements.

Senator HANSON-YOUNG: Does it often coincide with requests from the media? Mr Wood: I just mentioned the intranet home page would have a message of some sort. Senator HANSON-YOUNG: This was a direct email to your staff to have to report meetings with criminals. One of your officers has interpreted that to be about a specific person and you cannot tell me why? Mr Wood: I am not sure what the question was related to. There are times when we get information—and this is completely unrelated to this matter—for example, we recently received advice from the Australian Commissioner for Law Enforcement Integrity that there was a particular area he would like to increase our educational on, so we increased the education in that area. That related to conflict of interest arrangements within the organisation. But even if there was not a specific trigger such as information coming from professional standards or from ACLEI or from whole of government, there is the constant education campaign within the organisation. So it is not unusual either for an individual manager or from my portfolio centrally to decide to send a clear message about a particular code of conduct issue at some point in time. Senator HANSON-YOUNG: But what prompts you to send an email of that sort, especially if that information is already available day in, day out on your website? Mr Wood: It is good governance for a law enforcement agency to constantly remind its staff of the importance of integrity. That is what we do. And I repeat: sometimes ACLEI will trigger it, because they will say there is something they would like us to further emphasise. Sometimes, as part of our own complaint mechanisms, where we are receiving complaints about the behaviour of staff, whether it be about the use of force or any other activity across the organisation, we will send out a message. It may be that the union, the AFPA, raise with us a particular issue where they believe that we should communicate with the rest of the organisation about a particular theme that they are concerned about. Even if we have none of those triggers, we still have a constant process of education for our workforce around the importance of sustaining integrity as a core value of the organisation. Senator HANSON-YOUNG: Do you send regular emails reminding individual officers to desist from bullying and humiliating others? Mr Wood: That has been part of the education campaign, yes.

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Senator HANSON-YOUNG: How often would you send those emails? Mr Wood: My recollection is that all the SES received an email from the national manager of human resources in this space about three weeks ago, maybe four weeks ago—as an example; it would not have been the only incident. Senator HANSON-YOUNG: What is the AFP doing—and I am not sure, Mr Wood, whether this is in your portfolio; Mr Negus, you could probably inform me—to ensure that, if someone believes there is something important to report, something that has not gone right, a concern about wrongdoing, there is a culture of transparency that encourages them to report those things? Mr Negus: Senator, I think it is within Mr Wood's portfolio. But we pride ourselves on being at or very near best practice in integrity. The Commissioner for Law Enforcement Integrity has mentioned to me many times that he refers to the AFP as a model in this regard, in terms of the range of activities and processes we have in place for people to report inappropriate behaviour. In fact, one of the statistics I read the other day was, I think, that 72 per cent of the complaints currently on the books have come from inside the organisation against fellow members because they are concerned about a particular issue. These can range from very minor to more major issues. But that is a very healthy sign that internally, within the organisation, people are looking at what their colleagues are doing and are not frightened to come forward and raise concerns. If you think about it, a law enforcement agency where more than half of the complaints or concerns raised with our Professional Standards area come from inside is very healthy metric for us. We have obligations, of course, under the complaints act to make sure that we report matters of inappropriate behaviour and those sorts of things. It is incumbent on all of us, including me as commissioner and everyone across the organisation, sworn or unsworn, to report inappropriate behaviour. If they do not, they themselves can be disciplined for not reporting it. It is a mandatory reporting regime. On top of that, we have a thing called the Confidant Network, which has been in place now for well over a decade, where we have around 200 listed confidants on our computer system. You can ring and seek anonymous advice from individuals on whether you can go forward and whether they can provide support. It provides a mechanism for staff to seek advice about whether a particular behaviour could constitute misconduct or something else. If nothing else, the confidant can explain it to them and can go forward on their behalf—so they can remain anonymous—and make a report. So we get intelligence, if you like, about trends and issues within the workplace. We have a range of workplace support mechanisms as well, around welfare and assistance, which again constantly move through the workplace to try and give avenues for people to raise concerns or complaints. We probably have 15 minutes before lunch and, as I said, I could probably talk till four o'clock this afternoon, because I have five pages of— Senator HANSON-YOUNG: I have one more question for you, Mr Negus. Mr Negus: But I have five pages—and I am happy to table it, if you like—of the AFP's integrity framework, which we worked very hard on. To suggest that we have done anything outside of that and done anything other than try to reconcile with Mr Thomson about his concerns, to try and explain to Mr Thomson about his concerns—in fact, sometime after he

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was returned to Australia, he was redeployed to the Solomon Islands. The person who was charged with actually evaluating this matter travelled to the Solomon Islands to see Sergeant Thomson and sit down with him and explain the essence of his review, what was happening, and seek further advice from him. So they were not returning him from that workplace but going to see him in the Solomon Islands to sit down with him and work through these issues. We have been unable to reconcile this, unfortunately. We remain committed to doing that with him, and hopefully he can find a way to do that. But the covert recording of senior officers, the playing of a three-second grab out of a 30-second conversation and then making a broad range of allegations—which we have properly referred to ACLEI to give independence to—is not the way to resolve these issues.

Senator HANSON-YOUNG: You have power under section 40YA of the AFP Act to bring criminal charges for bullying people who make disclosures. Have you ever used this power?

Mr Negus: I personally have not used it. I am not sure whether it has been used in the history of the AFP. Mr Wood? Mr Wood: Not that I recall. But I am happy to correct the record for you if we do come across a case when we return to the office.

Senator HANSON-YOUNG: Could you take that on notice. Mr Wood: Yes. Senator RHIANNON: How many AFP officials are stationed in Sri Lanka? Mr Negus: I think it is one. Deputy Commissioner Colvin will have the details of this. He has just confirmed to me that it is one.

Senator RHIANNON: Has this official been present at or involved in questioning any people intercepted by the Sri Lankan authorities? Mr Colvin: I believe we may have answered this previously, I think the answer is that, to the best of our knowledge, no. I think we checked after the last estimates hearing. It is not routine for our officers to engage themselves in a liaison officer capacity in regular interviews.

Mr Negus: Can I just add for the record that our officers who work offshore do not have any powers in the country; they are a guest of the host nation. Traditionally they are there to work with those police agencies to exchange intelligence, to help them develop capability and to do the sorts of things that they would do in a support way rather than being somebody who might conduct interviews, take statements or conduct something in more of a law enforcement or investigative sense.

Senator RHIANNON: Mr Colvin, if you need to take this question on notice, by all means do so. I know that I have asked it before, but I continue to receive information regarding concerns about this possibility. Has it occurred since we were last together that the AFP official in Sri Lanka has been present when people intercepted by the Sri Lankan authorities are being questioned?

Mr Colvin: I am very confident that the answer is no. However, I will take that on notice and will provide you with an answer in the course.

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Senator RHIANNON: Thank you. If they have been present in those meetings, could you explain the purpose of that in your answer. Mr Colvin: As Commissioner Negus has explained, the purpose would be to exchange intelligence and to work with our counterparts on whatever particular transnational crime we might be investigating at the time. You have referred to people-smuggling, but our officer in Sri Lanka works on a range of transnational crimes.

Senator RHIANNON: Has the Australian Federal Police played any role in the interviews of interceptees at the fourth-floor facilities of the Criminal Investigation Department of the Terrorist Investigation Division in Colombo? Have they just been present in an observer role or have they had any involvement?

Mr Negus: I will have to take that on notice. I believe the answer is no, and I am happy to say that now, but I will give you a full answer the notice. Senator RHIANNON: Does the AFP provide training to the Sri Lankan Police?

Mr Colvin: Yes, we do. Senator RHIANNON: How many Sri Lankan police have the AFP trained? Mr Colvin: I do not have the numbers. What I do have is the types of training that we have provided. Senator RHIANNON: Could you take it on notice to provide the numbers and provide details about the types of training. Mr Colvin: I can give you the types of training now and I will take it on notice to provide you with the numbers. The training courses have included management of investigations; development for individual police officer programs; criminal intelligence analyst training; money laundering investigations training; and train the trainer. Of course, it is our desire that these agencies build up their own capacity and do not need us to do this training with them. We have also assisted with 20 computer based training learning modules on police best practice. We have done that in partnership with the United Nations Office of Drugs and Crime. Mr Negus: Can I just add—and this goes back to questions we have previously at estimates—that the issue of human rights remains central to all of the training we deliver. Human rights to the Australian standard and to our international obligations, and any training we would deliver during that period of time in the areas you have talked about, certainly would contain elements consistent with Australia's stand on human rights. Senator RHIANNON: You use the word 'elements', which could be either minimal or considerable. Could you take it on notice to provide details of what training that is and how large a component of the training it is. Mr Negus: Certainly. Senator RHIANNON: Does the AFP provide training to the Sri Lankan Coast Guard? Mr Colvin: No, we do not. Senator RHIANNON: Does the AFP provide training to the Sri Lankan military? Mr Colvin: No, we do not. Senator RHIANNON: For either of those, have you ever done so?

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Mr Colvin: I do not believe so. I will correct the record if there has been. I might add that that it would only be in an instance where we are conducting training with the Sri Lankan Police Service. It may be that an officer from the Sri Lankan Navy investigative component is in that training but that would be very rare and unusual because our liaison and training is with the police.

Senator RHIANNON: So you will take it on notice to find out whether the military have been present when you have been training police? Mr Colvin: Yes, we will.

Senator RHIANNON: How much money has the AFP spent on this training? Mr Colvin: I have records for 2012-13, the current financial year. We have spent approximately $540,000, of which about half is ODA funding and half is our departmental funding that we have been appropriated under various new policy initiatives. Senator RHIANNON: If you do not have the figures, could you take it on notice to tell me how much money has been spent on training since the end of the civil war in 2009. Mr Colvin: I will have to take that on notice, yes. Senator RHIANNON: Did the request for the training that you provide to the Sri Lankan Police come from the Sri Lankan authorities, or did the Australian government make the offer? Mr Colvin: All training that we do with any foreign law enforcement agency is arrived at in consultation with the agency. So we would have spoken to the Sri Lankan Police Service and discussed their training and capability needs. We would have looked at what we have the expertise to deliver and what we believe is in Australia's interest to deliver as well. That is how the training is arrived at. Senator RHIANNON: That does sound like the AFP has offered the training. I am not denying that they have accepted it, but it sounds like you have offered it. I am just trying to get it clear that I have interpreted your words in the right way. Mr Colvin: Yes. We offer training but it is on the basis of our discussion and negotiating with them. For instance, some of the training I mentioned is under the banner of the UNODC, so that would be discussions that the United Nations are having with the Sri Lankan government about training needs as well. Senator RHIANNON: So we have the AFP training Sri Lankan police. Is there somebody who oversees that from the Sri Lankan authorities? Is it just police to police? I am just trying to understand the process of how this works. Mr Colvin: It would nearly always be police to police. Depending on the type of training, it may be with a selected area within the Police Force. For instance, I mentioned money laundering training, and that would be with the part of the Police Service that is involved in money laundering. As a general rule, we would also be working with their own training arm of the Police Service to make sure what we were doing was consistent with what they needed. Mr Negus: In all of these types of training the Australian national interest is paramount. This is about supporting our regional neighbours and partners in law enforcement to 'target harden' the region against money laundering, corruption, people-smuggling and those sorts of things. This is all done with a view to making sure that the capability of the nation in question

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is built to support Australia's interests of preventing or solving crime here in this country. We deliver the third largest amount of aid behind AusAID and DIAC. But this is not an aid program. This is something where we have a vested interest in building capability so that we can work strongly with our partners to prevent crime across the region. As Mr Colvin said, train the trainer programs, where we leave a legacy of capability for them to conduct appropriate investigations with the right human rights dimensions and the right prosecution outcomes, are left in the country well after we have gone. Most of these programs are three or four years in duration.

Senator RHIANNON: You have said it is to prevent crime across the region and it is not an aid program. But earlier Mr Colvin said that $540,000 is ODA eligible. Mr Negus: That is right. Certainly some of it is funded through the aid program, but it is not specifically aid for aid's sake. What I am saying is that it is aid with a law enforcement perspective attached to it.

Senator RHIANNON: But you would surely be aware that the OECD guidelines require that ODA eligible funding is for poverty alleviation. It sounds like there is a contradiction here.

Mr Negus: No, there is not. It clearly meets the ODA guidelines, the eligibility criteria around training and a range of other things, which I am sure you are aware of. But certainly AusAID are very careful to ensure that whatever we do that is funded through the aid program—all I am saying is that very clearly this has an impact upon Australia and on regional law enforcement. The capability that we leave behind helps those countries to progress to the next level of capability and sophistication as far as their own investigations go.

Mr Colvin: Senator, I mentioned $540,000 and you just said that that was all ODA eligible. What I actually said was that $280,000, or about half of the total was ODA eligible. Senator RHIANNON: Thank you for the correction. Is the AFP aware of the allegations made against the Sri Lankan police of the widespread use of torture and rape in detention? This has come up in different reports and Human Rights Watch has covered recently.

Mr Colvin: There have been numerous reports in the media and by Human Rights Watch. Of course, the AFP is conscious of those. All of our officers who go overseas are very clear on the expectations we have of them and the standards we expect them to hold themselves to. I am not sure if I have put this on the record before, but all our officers operate under the AFP guidelines on offshore situations involving potential torture or cruel, inhumane or degrading treatment or punishment. It is a very serious issue that we take seriously. If officers are party to by accident—it would not be by design—or aware of a matter involving Australians where there may have been cruel, inhumane or degrading treatment, there are protocols on what they need to do, and that is to report it to DFAT and to AFP senior management.

Senator RHIANNON: Before we get to the point where your people are caught up in that, there are situations, Sri Lanka being one of them—and you would have more detail than we would—of these allegations. So is there a point where you make an assessment that this is too traumatic for people to become involved in because they could become associated with these incidents of torture, rape et cetera? Do you consider it in that context and, if you have, what was your decision with regard to Sri Lanka? Did you make a call that it was okay to do it?

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Mr Colvin: With Sri Lanka, clearly we still have a liaison office there. Senator RHIANNON: So you have made a judgement that you can do it? Mr Colvin: Yes. But I say that knowing that the officer involved has to be make a judgement each and every day, with every situation that he is involved in, that complies with the guidelines and the values and expectations of the AFP and the role that he has been given by the Commissioner. It is very difficult for us here in Canberra to make a judgement on what he has to do each and every day, but we have made a judgement that it is important that he continue to work with the Sri Lankan Police Service. Senator RHIANNON: Mr Negus spoke earlier about human rights training, which I understand is a component of the training that you undertake. Has the AFP ever raised the need for minimum standards of human rights such as protection from torture for persons detained as a result of joint anti people-smuggling initiatives? I am trying to get a sense of this. It is one thing to have it in the training, but it is another thing for your people to take a proactive position with the Sri Lankan authorities so that they start changing their practices. Mr Colvin: The AFP has a strong presence across South-East Asia and the issues you are talking about are not just confined to Sri Lanka. This is a real issue for our officers each and every day. I have no doubt that the agencies we work with know the standards of the AFP and what the expectations of the AFP are. There are whole-of-government forums in relation to discussion of what training will or will not be provided to Sri Lanka. It is difficult for me to give you a very specific answer about when it is going to be— Senator RHIANNON: Could you take it on notice to give us a specific example of where the AFP has interacted with your counterparts in Sri Lanka to recommend changes to address these ongoing allegations about torture and rape. Mr Colvin: That will be part of our answer to you in relation to the training because that is implicit any training that we have delivered that has a human rights nature. I will also see if there have been any particular instances where we have raised it as a specific issue. Mr Negus: It is important to understand that the AFP does not work as a one-off independent agent within the country. They are part of the Australian mission there and they would work with DFAT. There would be a high commissioner or an ambassador with whom they would be in regular contact and briefings with. So any concerns, as the Deputy Commissioner has mentioned, would certainly be reported immediately to both senior management here in Canberra and also to DFAT, and we would make representations appropriately through DFAT to the countries involved. These individuals do not walk around as a free agent within Sri Lanka. They are part of the Australian mission and do work on behalf of Australia to Australian standards. Senator RHIANNON: So they are working to Australian standards as a part of the mission, and we know from previous evidence that there is interaction with the Sri Lankan authorities around people attempting to leave as asylum seekers. Has the AFP taken action to protect the human rights of the people intercepted by the Sri Lankan authorities, considering that some of these people are fearful that they could suffer torture or something quite horrible? Mr Negus: That is not really a question that the AFP can answer. This is a matter for DFAT and representatives within the country. All I can say is that our officers perform to

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extremely high standards and if they were to see anything that was considered inappropriate it would be reported accordingly and proper representations would be made. Proceedings suspended from 12:32 to 13:36 CHAIR: Let us reconvene our consideration of the budget estimates.

Mr Negus: Chair, over the luncheon break we obtained some answers to questions asked by Senator Rhiannon prior to the break. It may truncate some of the other questions. Mr Colvin: We took the opportunity over the lunch break to get some answers to Senator Rhiannon's questions. In relation to whether we have been involved in the interview, been an observer or been present during the interview of any suspects or witnesses, I can assure you that since opening our post in Sri Lanka in 2009 we have not been involved in any interviews as a participant or an observer. That is of witnesses and/or of suspects.

There is one matter that you may be aware of, and I think we put some detail on the record previously, around an allegation from a returned asylum seeker in August 2010 of mistreatment at the hands of Sri Lankan officials and that an AFP officer was present at that time. We can categorically confirm for the record that the AFP officer was present in the building on that day, most likely the same building you referred to. The officer was attending to other duties unrelated to the interview that was taking place and at no stage did the AFP officer witness any mistreatment by Sri Lankan officials of any person held in custody. I think we put quite a bit of detail on the record at the time about that matter, which was in the media, but, again, we have not been involved, nor would I expect that we ever would be, in the interview as an observer or participant of witnesses or suspects.

Senator RHIANNON: Thank you. Mr Negus, is the AFP operation in Afghanistan ODA eligible? Mr Negus: Yes, it is.

Senator RHIANNON: Does ODA cover all of your operations? Is everything ODA eligible? Mr Negus: I know the substantial amount of it is, but we will get those details for you.

Senator RHIANNON: While we are waiting, regarding the troop withdrawal from Afghanistan, will be AFP operations be withdrawing back to Kabul? Mr Negus: They already have. We originally had 28 people there; we are now down to 13. We have ceased all operations in Uruzgan Province and in Kandahar and we now have 13 people stationed in Kabul. They are holding strategic adviser roles within the ministry for police accountability and a number of other senior roles within that environment.

Senator RHIANNON: What is the budget now for your Afghan operations, please? Mr Drennan: If I may, regarding your earlier question, almost all of the funding for Afghanistan is ODA eligible. There is a small component which is not. The current ODA budget for Afghanistan is $17.7 million and $5 million is non-ODA. Senator RHIANNON: That is $5 million on top of the $17 million, obviously. Mr Drennan: Yes, it is. Senator RHIANNON: That is the current budget after you have withdrawn back to Kabul?

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Mr Drennan: That is right. That is for the 13 members we currently have in Kabul. Senator RHIANNON: What was it for the 28 people when you were in Uruzgan? Mr Drennan: I would have to take that on notice. Mr Negus: I think the savings measure which would have been announced was around $10 million. So the reduction of 15, from 28 down to 13, was a difference of around $10 million—from memory. I think the total budget would have been what we have just given you plus about $10 million.

Senator RHIANNON: Moving on to RAMSI—I understand it was due to wind down in July 2013. Mr Negus: It was not due to wind down; funding was up for renewal. It was a lapsing program. That was considered by government and announced in the budget.

Senator RHIANNON: Yes, I was aware of that. You are saying that it was not expected to wind up in July 2013. I had understood that it was. Mr Negus: The Defence components are winding up, but the AFP and the diplomatic efforts, as well as a number of other agencies, are still there. The funding was to be reconsidered at the end of this financial year.

Senator RHIANNON: Was that always the plan or has the plan been revised? Mr Negus: It was lapsing funding, so it was planned for the last four years that it would be up for renewal. Certainly major components of it have been renewed in the budget. Senator RHIANNON: The ODA component, as I remember, was fairly large. Can you remind me what it is, please?

Mr Negus: I will pass that to Deputy Commissioner Drennan. He will have more detail. Mr Drennan: For the RAMSI program, the ODA component for 2012-13 is $78.3 million. There is a non-ODA component of $26.9 million. Senator RHIANNON: That seems to be up from the previous financial year. It seems to be an increase. Is that the case? I am just trying to get a sense of it. It seems as though the budget is increasing, so therefore I am assuming your activities are increasing. I am just trying to get a sense of what is happening with that aspect of RAMSI.

Mr Drennan: The activities are transitioning. There is a program in place which is transitioning more and more from providing in-line policing in support of the Royal Solomon Islands Police Force to a program focusing more on capacity building, where they do the in-line policing role and we support them in a range of areas. We will see if we can check on the actual budget line. There was a significant component over the last couple of years—we have been building police housing, which is part of the program. We have also been refurbishing and building police stations. It may well be that some differences are in the capital components as opposed to the operational components.

Senator RHIANNON: I recollect that you nominated—I think it was in questions on notice—that you have 109 personnel there. What is it now, please? Mr Drennan: Currently there are 110 AFP people there. The size of the participating police force is 152, because there are New Zealand police and Pacific island police officers there as well.

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Senator RHIANNON: It sounds as though the program is ongoing at a similar level. There are a lot of police officers and it is fairly active. It is not winding back—is that what we assume?

Mr Drennan: That is right. It is not winding back; it is transitioning to take on a different flavour. Over the next four years, there will be a reduction in the numbers there—but that is consistent with the fact that, as the capability of the Royal Solomon Islands Police develops, there will be less of a requirement for us to fill particular roles.

Senator RHIANNON: What is the draw-down you are expecting over the next four years? Mr Drennan: Again, I do not have those precise numbers here.

Mr Grant: On page 146 of the portfolio budget statement, the dollar draw-down is reflected—not the actual staffing levels. For example, for 2013-14, the budget is $83.04 million, dropping to $82.5 million in 2014-15, to $74.7 million in 2015-16 and to $67.9 million in 2016-17.

Senator RHIANNON: That is still a considerable amount of money for the Solomons. I got the impression from what you said, Mr Drennan, that there is a draw-down, but that does not sound as if it is going to be very large.

Mr Drennan: It is not a significant drawdown. It is in the range of probably 20 to 30 AFP. As I said, I do not have the precise numbers. There is a level of flexibility around that depending on the rate of development and take up by the Royal Solomon Islands Police in some of the different areas. But the overall plan is to draw the numbers down in that transition phase as the Royal Solomon Islands Police are able to increase their own capacity and take on more and more roles in their own right.

Mr Negus: Just to add to that, sometimes you need the same number of people in country but they will be performing different roles. That is what the deputy commissioner is talking about. For instance, at the end of the day in Timor we were performing very much capacity building roles rather than policing roles in line. That is what we are transitioning to. We are stepping away from being on the frontline—attending demonstrations and doing policing work with the locals—to building up their capability and advising them on how they can do it themselves in a better way. That is where we are heading. But there is still four years of funding there to make sure that this is done properly. That is where we are heading.

Senator RHIANNON: I want to go back to some of the wider issues about ODA and the AFP. Can you give us a breakdown of how much ODA is going to each program that the AFP is involved in?

Mr Negus: That would be a fairly large effort. I will hand to the deputy commissioner. Mr Drennan: I can certainly break it down in regards to the international deployment group missions that we have. These are all 2012-13 figures. They are estimates, but they are very close estimates because it is not realised until we get to the end of the year. In any case, as I said before, for Afghanistan it is $17.7 million. For the Pacific police development program in Nauru there is $1.4 million. For the Pacific police development program PNG there is $9.6 million. For Samoa, there is $2 million. For Tonga, there is $1.8 million. There is a regional program that covers a lot of the more minor states through the South Pacific and there is $3.5 million for that. For RAMSI, there is $78.3 million. For Timor Leste there is

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$27.2 million. For the United Nations mission in South Sudan there is $1.3 million. For the United Nations mission in Timor Leste—and this is for the part year—there was $3.4 million. Therefore, there is a total of $146.2 million. Mr Wood: To add to that, in that same financial year, 2012-13, there was a further $10

million in areas that are not part of the international deployment group. That $10 million was in areas such as capacity building in the forensics area, some work in the police Pacific development program, the transnational crime unit, people smuggling and in Pakistan. Senator RHIANNON: Thank you for that. With the international deployment group, in

2012-13 where any of these personnel stationed in Australia? Mr Drennan: The people who are involved in the regional program are based in Australia. But these are for the activities that are delivered in country. Senator RHIANNON: How many of your international deployment group who are covered by what is classified as ODA are stationed in Australia?

Mr Drennan: The people are not classified as ODA. Senator RHIANNON: Sorry. But— Mr Drennan: The way that we do it is that all of the staff who are employed in the international deployment group are not funded in their base salaries by ODA. When they go to a mission, the mission cost and the activities in the mission are what is funded by ODA. Senator RHIANNON: To phrase it another way, are any of the costs of your personnel in the international deployment group who are in Australia defined as ODA eligible? Mr Drennan: Not those who are based in Australia. But there are—and this may answer your question—20 people who are in the regional Pacific police development program, which covers the minor or smaller states within the South Pacific, who travel to those various states and deliver programs there. Those activities that they perform when they are in country and the costs associated with them performing those in country would come under ODA. So there are 20 people who are primarily based in Australia who we fund through our appropriation but who when they are offshore doing activities there that are ODA eligible are funded by ODA. Senator RHIANNON: When they are offshore. Mr Drennan: Yes. Senator RHIANNON: Thank you. What are the administrative costs of the ODA program? Mr Drennan: I am not too sure what you mean. Senator RHIANNON: There is an ongoing discussion in many of the estimate hearings about ODA and what is ODA eligible. I am continually trying to understand how it is defined and how it works. One of my questions was: with programs that are deemed to be ODA eligible or can be defined as ODA, what administrative costs are covered or defined as ODA eligible? Mr Drennan: Another way to explain that would be that all the administration and the resourcing required to support those missions offshore that is conducted here in Australia is not ODA. We are quite specific in regards to where the ODA funding is applied and that is,

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expect for those 20 people who are onshore but doing the work offshore, that the rest of it relates to the activities and the programs of those people while they are offshore in a mission doing duties and performing functions that are ODA. The actual back office work to support that, which is done back here in Australia, does not fall within ODA.

Senator RHIANNON: So the personnel who are stationed in Australia have their costs and wages classified in different ways, depending on where they are. Is that how we would define it?

Mr Drennan: No. All of those who are here in Australia doing work here in Australia do not fall under ODA. That falls under our normal appropriations. Senator RHIANNON: That is what I mean. There are two components to their wages and the costs that they incur in their work.

Mr Drennan: There is a mission component. Within the international deployment group there are 680 people. There are 116 of those who are here in Australia who do the general support for missions. That is not ODA eligible. There are 426 people who make up the basis of the people who can be deployed. But at any particular time there are 188 of them deployed offshore in non UN missions and 25 in UN missions. Out of the 426, 213 would be deployed at any particular time offshore in missions that attract ODA funding.

Senator RHIANNON: Thank you. Mr Negus, do you have an officer responsible for the implementation of the National Action Plan on Women, Peace and Security within the AFP? Mr Negus: That is not a name that jumps to my mind. Can you be more specific about what the role is?

Senator RHIANNON: The government has a National Action Plan on Women, Peace and Security. It was launched in 2012. It assigns responsibility to a range of government departments for promotion of these issues. It is something that has flowed down from the UN. The government was slow in making it happen—it took a decade. But I understood from reading about this that the AFP is one of the agencies involved in this. That is what I wanted to try and understand: your involvement with this plan.

Mr Drennan: To my knowledge, we do not have a specific person. But we certainly support and contribute to that plan in general, particularly through our UN missions and non UN missions, where we are actively involved in developing women in policing, which is in accordance with that plan. We have some quite specific programs in which our people are involved in achieving the objectives of that plan.

Senator RHIANNON: Could you give us some more specifics, please. I am interested in what measures the AFP have put in place to implement this plan in Afghanistan, Syria, Mali and Sri Lanka.

Mr Drennan: In Afghanistan, there have been training programs directed towards women. Senator RHIANNON: Do you mean training Afghani women police officers?

Mr Drennan: Yes. The other countries— Senator RHIANNON: Syria, Mali and Sri Lanka. Mr Drennan: There are certainly none that I am aware of in Syria or Mali. Most likely there are none in Sri Lanka, and certainly not through the international deployment group.

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Senator RHIANNON: Any other countries apart from Afghanistan? I just named four that— Mr Drennan: In just about all the countries where we are doing capacity development work there is a focus on programs for women. Particularly in the Solomon Islands, we have done quite a few programs that support the development of women in policing.

Senator RHIANNON: Apart from Afghanistan and the Solomon Islands, any other countries? Mr Drennan: Pretty much right through the Pacific. In all of the Pacific police development programs there are specific programs for women. It is a particular focus for us. Even in PNG we have done some specific programs. In Timor Leste we have done specific programs beyond women in policing but also catering for domestic violence and victims of domestic violence. Without trying to get specific for every particular country, it is a general theme of focus for us in all of our capacity development work in line with the objectives from the UN. We also have two senior officers from the IDG, one who is the assistant commissioner in charge, and also one former commander who was in charge of our deployment to Timor Leste who are actively involved in that program. As I recall, they presented at a particular conference on that program.

Senator RHIANNON: Thank you for that response. Could you take on notice to supply more details. I appreciate that it is focus. But if you could provide details on the numbers so that we can compare that to the males who you are training and interacting with, that would be good. I would like to know how many women are you interacting with and training. If you could provide some more details on both the content and the outcome of these programs, that would be good.

Mr Negus: We are happy to do that. But we need to acknowledge upfront that we are starting from a pretty low base here in many of these countries. Women in policing roles is at the starting point. We are doing what we can to develop those people. What I was going to add was that we also second people into the AFP, particularly the international deployment group. Women come from Pacific countries and work for three or six months here in Australia and learn the skills so that they can apply them in their own countries. We are happy to provide all those details. But I want to warn you that it is starting from a low base and you would be—

Senator RHIANNON: Very much so. That is why it is important to get it down—so that we can see how it develops. If you can give the quantitative figures so that we can make the comparison that would be good.

Mr Negus: Certainly. We will do that. Senator RHIANNON: Is there a government coordination point to manage interdepartmental coordination with civil society efforts relating to the implementation of this plan? Mr Drennan: To give you a precise answer, I would need to take that on notice. I suspect that it is through the Department of Foreign Affairs and Trade. They take on a coordination role in relation to the development of any of those programs that are of an international nature.

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Senator RHIANNON: I was hoping that we could get an answer here, because this one is hard to pin down. Do you have a liaison officer that you engage with so that there is some cross-consultation between departments?

Mr Drennan: As I said, we are heavily engaged with the Department of Foreign Affairs and Trade in relation to all of our activities overseas. Likewise, we are heavily engaged and have a liaison officer with AusAID, which picks up responsibility there as well. We also have a liaison officer with the civil military centre, which deals with a whole range of peacekeeping activities on both the civilian and military sides. We have a liaison officer attached to the United Nations in New York. We are involved in a whole different range of forums and groups that pick up various parts of these responsibilities. Whether or not there is a specific person and a specific interdepartmental committee on this I do not know. But I can certainly take that on notice for you to try and assist you as to where you may best direct that question.

Senator RHIANNON: Thank you. Within that, are you reporting regularly to someone and are those reports made public? Mr Drennan: I will need to take that on notice. If there is a requirement for us to report our activities, certainly with AusAID in anything that we do with ODA funding there are fairly comprehensive reporting requirements around that, which we do. In fact, AusAID have provided the feedback to us that we are one of the more comprehensive reporters there and are able to articulate the programs we have to a very high level. But again, to get a specific answer for you I will just need to come back to you.

Senator RHIANNON: Okay, thank you. CHAIR: Senator Furner has got some questions for you. Senator FURNER: I might just start with a couple of the task forces, firstly with Polaris and Jericho. I understand the expansion of the Polaris task force from Sydney to Melbourne and Brisbane— Mr Negus: That is right. Senator FURNER: What was the need for expansion to those two capitals? Mr Negus: Clearly the Polaris task force was something that we did as a pilot, really, to engage a range of agencies who work in that port environment and to look at the level of criminality. Certainly working with partners like the Australian Crime Commission, the New South Wales police, the New South Wales Crime Commission and Customs, what we have seen in the last couple of years there has been quite disturbing. I think the results of that have been reported in the press. We have made a significant number of arrests and seized a lot of narcotics and illegal tobacco—100-plus tonnes of tobacco. What we saw was that really those circumstances were not unique to Sydney and the port environment in Brisbane and Melbourne was also worthy of attention. So, as the pilot proved what we thought was the case, we then expanded into Melbourne, and into Queensland at the beginning of next year. Senator FURNER: I understand there was a bust in a location where there was some furniture with false compartments that contained heroin. Which port was that from? Mr Negus: I might pass to Deputy Commissioner of Operations, Andrew Colvin, who will have that. The Polaris task force has made a series of arrests and seizures. This morning

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Mr Lawler from the Crime Commission mentioned the 11-tonne seizure of precursor chemicals. That was the Polaris task force who seized that—one single seizure of 11 tonnes of acid, which was used as a precursor for methamphetamine. I will hand over to the deputy. Mr Colvin: Senator, I believe you are probably referring to the November last year

seizure of 58kg of heroin, which was Operation Polblue. That was a seizure in furniture in Brisbane. Senator FURNER: What are some of the other examples since July 2010 in terms of number of arrests and charges?

Mr Colvin: For the Polaris task force? Senator FURNER: Yes. Mr Colvin: Since July 2010 the Polaris task force has had outstanding results, as the commissioner has said. It is a multijurisdictional task force but, in essence: 39 arrests, which have resulted in 190 charges—that does include two serving Customs officers as well, which has received a considerable amount of media; the seizure of over 12 tonnes of illicit substances and precursor materials; and I think you heard earlier today from the Australian Crime Commission about one very large seizure of 11 tonnes of precursor material. Since that time, there has been the seizure of 119 tonnes of illicit tobacco and 92 million cigarettes— which, for the committee's interest has prevented the evasion of approximately $77 million in tax revenue—and the seizure of over $1 million in cash and 11 firearms. So it has been a very successful task force and it continues to be successful. Senator FURNER: Okay. Operation Jericho, or Taskforce Jericho: that is a new task force that is coming online later on in the year. What are the objectives behind that particular one? Mr Colvin: The objectives are very similar to both the Polaris task force and also the Operation Trident task force, which is in Melbourne. Trident is based on the waterfront vulnerabilities as well, which is what the Polaris task force is targeting. Trident started in Melbourne in August. As the commissioner has said, Taskforce Jericho will commence mid-calendar year, at the start of the next financial year. The objectives are very much the same: it is to understand the waterfront environment, the port environment and to identify and prosecute those people who are looking to exploit the vulnerabilities in those environments. Mr Negus: I could add to that. It is important because this was a fundamental shift in AFP's thinking over the last couple of years as a result of these task forces. The vulnerabilities that the deputy commissioner mentioned have changed the way we look at organised crime. This is not necessarily about targeting a particular person or a particular group but looking to close vulnerabilities or gateways into this country for the trans-shipment of illicit substances, whether they be firearms or narcotics. It has been extremely successful in that context. We have done a vulnerabilities assessment. People who have been arrested have walked us through and shown us how narcotics are being shipped into this country. That means that we can close down all the doors, or do our very best to do so, rather than just arresting one person when there are many more to follow as couriers or other things. This is about fixing the problem rather than the root causes. Taskforce Polaris particularly, with the other two coming online, has given us fantastic insights into the way people are committing crimes in the border environment. Again, we are working with Customs and making sure processes, procedures

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and technology can all be used to harden the environment in Australia and protect it against organised criminals bringing illicit substances into the country. Senator FURNER: What sort of funding has been contributed to Taskforce Jericho? Mr Colvin: At this stage Taskforce Jericho will be funded out of our base appropriations.

There is no additional funding for the AFP for that task force. Senator FURNER: I understood there was somewhere around $5.6 million directed to Jericho. Mr Colvin: In the recently announced budget, there has been money put aside for the Jericho and Trident task forces, but they are for the state contribution, not for the AFP.

Senator FURNER: With regard to the COAG meeting in April, as I understand it, the states did not agree to the Commonwealth government's calls for national unexplained wealth laws. Would you explain to the committee what that would mean with respect to operations of the current system and what the benefits of a national approach would have been?

Mr Colvin: I believe we have put on the record on a number of occasions the challenges associated with the unexplained wealth legislation as it stands. As we have said before, we have current investigations where we are seeking to test the legislation to the full extent possible. At this stage, we have not been in a position to take any of those prosecutions under unexplained wealth legislation forward. There has been ongoing discussion between states and territories, and certainly a lot of it has been in the media as well, about a referral of powers. Effectively, regarding unexplained wealth legislation at the Commonwealth level, there are constitutional limits to the way that legislation can work. Limitations are effectively around our need to establish that the wealth, albeit unexplained, has been derived from a Commonwealth offence. With most of our investigations into organised crime, it is very difficult for us to disaggregate between Commonwealth and state or territory based defences that might be going towards accumulating a criminal's wealth. That is the nexus of the issue that is still ongoing. The department might have more information they want to put on the record about that, but from our perspective we have been unsuccessful in bringing any matters under that legislation to prosecution at this stage.

Senator FURNER: That is manner of your modus operandi, isn't it: liaising with states and branches to make sure that you have that dialogue and communication about solving crime?

Mr Colvin: Absolutely. As the commissioner has said on a number of occasions, there is almost nothing that we do that we do alone. In terms of our serious and organised crime work, the vast majority is done with either international partners or state partners. What we find is that organised criminals rarely confine themselves to one criminal endeavour. They rarely confine themselves to one commodity or one type of crime. It is irrelevant to them as to whether it is a Commonwealth crime or a state based crime. As I said, it is difficult for us to disaggregate sometimes what type of crimes they are committing.

Senator FURNER: There is another operation: Operation Conqueror. I would like some feedback from the AFP as to how you have been achieving successes in that particular operation.

Mr Negus: We will get Deputy Commissioner Phelan to explain that. The one you are referring to is a child protection case.

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Senator FURNER: That is correct. Mr Negus: It is very successful. I will ask Deputy Commissioner Phelan to come to the table. Mr Phelan: Operation Conqueror began in January this year. The AFP identified a number of persons using a peer-to-peer file-sharing network to share images depicting children, including young infants who were being sexually abused. We had a concentrated activity over a period of weeks that ended on 15 March 2013, and to date there have been 25 arrests from that particular endeavour, and 30 search warrants have been executed. The investigations are ongoing, and we expect to have some more arrests.

Senator FURNER: Without going into too much detail, how do you ascertain those particular engagements with the peer-to-peer network? Is it through mobile phones, laptops, hard drives?

Mr Phelan: A lot if it is through the cooperation that we have with overseas jurisdictions, and obviously our own technical capabilities. Once we have the information we then have the ability to either monitor those networks or indeed get the information from overseas and do our further inquiries using access to non-content data et cetera to build up profiles—enough information for search warrants and any other surveillance activity that we want, both electronic and physical—and then go in with some search warrants. The charges will depend largely on what we find in those places.

Senator FURNER: So, Operation Conqueror is just another operation in terms of a global issue of child exploitation? Mr Phelan: Unfortunately yes. Conqueror is just one of the operations we have. Even this financial year to date we have arrested 67 offenders, and it is continuing to escalate. Year on year it has been 72 people in 2010, with 158 charges; 84 people in 2011, with 205 charges; and 93 people in 2012, with 312 charges—and it continues at a rate that is ever increasing. And it is right across all demographics. The information that is coming from overseas and domestically is not slowing down.

Mr Negus: Perhaps I could just add to that one thing that gets little attention sometimes is the work we do offshore with our overseas partners. Just in this last financial year 15 children have been removed in the Philippines from positions of harm and abuse, as well as two children in Thailand. Our international partners have taken those children into care. The children have been exploited and used by paedophiles and child pornographers to actually manufacture material and then transmit that around the world. So I think that is a great success, and it gives us a lot of comfort that we are able to do something for those poor children who are the victims of this crime every other day. It is not a victimless crime, as some people might see it—just looking at an image. There are children behind this who are the victims of this every other day in many developing countries and developed countries around the world. So those 17 children are very grateful for the work done by those people and the AFP, I think.

Senator FURNER: Do those governments understand the severity and the insidiousness of this type of crime and realise that it has to be stopped? Mr Negus: Those two countries, for example—the Philippines and Thailand—both give us fantastic support. They understand, although I think the magnitude of the problem in these

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countries is difficult for them to get a grasp of. But we do receive very good assistance from them where we can, tracking down and certainly looking for linkages in terms of Australians who may travel overseas to conduct offences offshore. We have extraterritorial reach and we do regularly charge people for that. They may think they can get away with it in developing countries but we do have the reach to bring them before the courts here in Australia.

Senator BRANDIS: Commissioner, I want to start by asking you about the incident that occurred on 23 April this year on a Qantas flight between Sydney and Brisbane when the AFP were called following a complaint by the Qantas crew of that aircraft about the behaviour of the Attorney-General, Mr Mark Dreyfus. The reports of the incident in the press, which have not been disputed, tell us that Mr Dreyfus, contrary to the instruction that is routinely given at the beginning of every flight, refused to turn off his mobile telephone; that a fellow passenger then remonstrated with him to turn off his mobile telephone and he declined to do so; and that a Qantas crew member remonstrated with him to turn off his mobile telephone immediately and admonished him and he refused to do so; and that the Qantas crew member took the matter so seriously that he or she reported the situation to the captain of the flight and the captain of the flight took the matter so seriously that he alerted the Australian Federal Police, who met Mr Dreyfus and spoke to him when he arrived in Brisbane. Was a file created in relation to this episode?

Mr Negus: Yes, the matter was reported. There are some things you have said that I can confirm, and there are some things in there that I think we do not have the same account of. So perhaps I could tell you the AFP's account.

Senator BRANDIS: Well, you take me though, in your own words and as fully as you feel able, your report of the incident. Mr Negus: On 23 April at 6.50 pm the AFP attended Brisbane domestic airport—the Qantas terminal there—in regards to what was reported as an incident aboard a Qantas Sydney-to-Brisbane flight. The incident involved a passenger failing to comply with instructions—and it is not an offence of using a mobile phone; it is an offence of failing to comply with the instructions of the cabin staff or the captain.

Senator BRANDIS: And that is an offence against the provisions or regulations made under the Civil Aviation Act. Mr Negus: That is right. Now, the incident involved, as I said, a person allegedly failing to comply with instructions. The AFP was informed by Qantas staff at the time the call was made that it was the Attorney-General, Mr Dreyfus. Qantas advised that they were dealing with the issue as a customer service issue and would report the matter internally. The AFP attended and spoke to the Qantas staff member, and they provided a statement to that effect— that they did not want to refer the matter to the AFP, that they were dealing with it as a customer service issue. And, to the best of my knowledge, Mr Dreyfus was not spoken to by a member of the AFP at the time. That is not in the report. On that basis, it was not referred to the AFP and the AFP did not investigate it any further.

Senator BRANDIS: So, a file was created by the AFP, which records the interview with the Qantas officer. Mr Negus: The file would be the initial report, the fact that a team responded to that report, who they spoke to and the fact that a statement was taken from the Qantas person

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stating that they did not want any further action taken and that they were going to deal with it as a customer service issue. Senator BRANDIS: Was the Qantas person to whom the AFP officer spoke the captain of the flight, the flight attendant, or someone else?

Mr Negus: I do not know that off the top of my head. I will ask the Deputy Commissioner. Mr Drennan: I do not know the precise details of the person. It was not the captain; it was a member of the Qantas staff.

Senator BRANDIS: Was it a member of the flight crew, or the ground staff? Mr Drennan: It is my understanding that it was the ground staff. Senator BRANDIS: Was it one officer, or more, who took the statement? Mr Drennan: Again, it would have been an officer who took the statement. Whether or not there were other AFP officers in attendance I do not know, but I would assume so in that the normal process would be for at least two officers to turn up to any incident.

Senator BRANDIS: I understand that Qantas may have wished to treat the matter as a customer service matter, and I understand that there is a degree of discretion exercised in policing, given the seriousness of the matter. But it is the case, isn't it, Commissioner Negus, as you have said, that refusal to obey a direction given by a person in charge of a flight is an offence against the Civil Aviation Act?

Mr Negus: It is, but, as you would understand, without a complainant who perhaps gave that instruction being prepared to give us a statement to that effect and go to court, there was nothing more that the police could do in that matter. And, really, it comes down to a matter of whether Qantas wanted to pursue the matter in a particular way.

Senator BRANDIS: Sure, I understand that. And but for the identity of the individual concerned, perhaps nothing more would have been thought of this. But, given that the individual concerned was the first law officer of the Commonwealth, apparently engaged in a breach of the law, one can understand why this matter has attracted a degree of notoriety. How often in the last 12 months have AFP officers been called out to investigate an incident aboard an airline involving a passenger allegedly refusing to comply with a direction being given by air crew?

Mr Negus: I do not have figures for the last 12 months, but I do have figures since 2006. Senator BRANDIS: That would be helpful, yes. Mr Negus: Since August 2006 there have been 143 breaches of the regulations reported by the AFP. Senator BRANDIS: These are cases where the misbehaviour of a passenger onboard was of sufficient gravity that the AFP received a complaint which it then looked at. Mr Negus: That is right. And they generally fall into four categories. It would be smoking in the cabin, failing to comply with instruction, offensive or disorderly conduct, or being intoxicated. Senator BRANDIS: Of those four categories, I think we may assume that is was not the first or the fourth—smoking or, let us assume, intoxication. So it was certainly failing to

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comply with an instruction, and it may also potentially have been—but we cannot be sure of this—disorderly conduct. Mr Negus: Well, the report that came into the AFP, based on my understanding and on the brief, is that it was failing to comply with an instruction.

Senator BRANDIS: So there was sufficient particularity provided by Qantas to the AFP that the nature of the misbehaviour was able to be classified into one of the four categories that you classify these two things into. How many of the 143 offences since August 2006 have consisted of failure to comply with a direction?

Mr Negus: I do not have those figures, but what I do have is the outcomes of the 143 different reports. Senator BRANDIS: That will be helpful, yes.

Mr Negus: On 54 occasions a court attendance notice was issued. Senator BRANDIS: Does that mean a charge, in effect? Mr Negus: They were issued with a type of summons whereby they would be asked to come to court. Thirty-six matters were referred to CASA. For 51 matters the person was cautioned or there was insufficient evidence to proceed. And two failed to proceed for mental health reasons. Senator BRANDIS: In this case that falls into the third of those four categories—that is, either the person was cautioned or there was insufficient evidence to proceed—the insufficiency of the evidence was because Qantas, not wishing to have the matter dealt with as a criminal matter, indicated to your investigators that they would prefer to treat it as a customer service matter and—to use the inaccurate but commonplace phrase—they did not want to press charges. Mr Negus: That is correct. Senator BRANDIS: In circumstances in which the airline says to you, 'Well, we don't want to press charges; this is a customer service matter', would it be almost invariably your practice to do what the airline wanted and just let the matter lie, as it were? Mr Negus: In cases such as this, if there had been an assault or something outside of the CASA regulations, certainly we would re-evaluate that. But where the discretion lies with the failure to comply with instructions, then the evidence about instruction being given is critical to the prosecution going forward. So we would not take that matter any further. Senator BRANDIS: So you would not have been able to prosecute this case without the active cooperation of Qantas, and Qantas said they did not want it to turn into a criminal matter, effectively? Mr Negus: That is correct. Senator BRANDIS: And there have been 51 cases in that category in the last seven years, so that is about seven a year. Mr Negus: Yes. Senator BRANDIS: I suppose the matter speaks for itself. Now, let me turn to another matter. I do not know if you were following the Senate estimate on Tuesday in this committee when the department of immigration was before the committee. But the committee heard

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some evidence from Mr Bowles of the department in response to questions asked of him by Senator Cash concerning the issue of the location—that is, the locating, I suppose is the right word—of asylum seekers in communities around Australia. Senator Cash was asking Mr Bowles whether a request had been received by the department, by the New South Wales police force and/or other state and territory police forces to provide location details of IMAs—that is, irregular maritime arrivals—released on bridging visas. And Mr Bowles said, in answer to that question: 'I had a conversation with the commissioners of police services across the states and territories as recently as two weeks ago. Some were represented by their deputies, and there are also deputy commissioners meetings as well. I have been talking to commissioners about what level of data we should and should not release. We have an active engagement happening at the moment, with the deputy commissioners meeting. I am not sure when that is on.'

Mr Cahill, who I think was also from the department, said: 'I met with the deputy commissioners last week by conference call.' Mr Bowles: 'I had the initial meeting with the commissioners, and so the New South Wales commissioner was there, as was the AFP commissioner, and we talked about a range of issues. Out of that came the arrangement that Mr Cahill would meet with the deputy commissioners and work through a range of data that we can provide to police commissioners.'

Now, Commissioner: can you confirm the evidence given by Mr Bowles that you were one of the participants in that meeting of state and territory police commissioners to discuss this issue?

Mr Negus: Yes, I can. It was a teleconference. All the states were represented by the commissioner or the deputy and Mr Bowles from the department of immigration. Senator BRANDIS: And you represented the AFP?

Mr Negus: Yes, myself and Deputy Commissioner Colvin. Senator BRANDIS: Who initiated that meeting? Mr Negus: I will have to get the dates right here, but probably about six weeks ago the commissioners had a general meeting, which is a normal routine meeting at which there were some concerns expressed about the lack of information about people being placed into the community on various degrees of visa representation. Senator BRANDIS: Just pausing there: Were you only talking about irregular maritime arrivals? Or were you talking about other categories of people as well? Mr Negus: It was a very broad conversation, but it was to the effect that we, particularly the states and territories, would like to get Mr Bowles to come to the next meeting of the commissioners and to talk to them about what was being done and what information could be provided to enable law enforcement to take appropriate steps in their own communities and understand who are the new people coming into those communities at that time. Senator BRANDIS: And irregular maritime arrivals was certainly at the top of your mind, I assume. Mr Negus: Yes, it was. It was another three months, I think, before the commissioners would get back together. And I think it was at the instigation of Commissioner Scipione from

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New South Wales; he sought to have a teleconference undertaken, with the people represented, and that is what took place approximately two weeks ago. Senator BRANDIS: Now, Commissioner Scipione obviously sought to raise this matter and to convene this teleconference because he was concerned there was a policing problem. Do you agree with that view, that the presence of these large numbers of IMAs in the community represents a policing problem?

Mr Negus: From the AFP's perspective, our role in community policing is much lower than our role in national policing. Of course, the ACT is the exception. I can see where their concerns were, but I do not share those concerns. I think, from the data I have seen, people on visas in the community are under-represented compared with the general community in the commission of crime or in being victims of crime or the subject of crime. So, whilst I could understand their concerns, I think it needed to be aired, and it gave Mr Bowles an opportunity to talk about what the department was doing to try to share information accordingly and give people a sense of surety that what could be done was being done to allow them to know what was going on.

Senator BRANDIS: Would it be fair to say that the concerns expressed by Commissioner Scipione, whose organisation has, as you say, a much more direct involvement in community policing than the AFP does, were shared by the commissioners or deputy commissioners of the other state and territory police services?

Mr Negus: To varying degrees. I think that some were concerned to the same level as Mr Scipione, but some, I think, also recognised they were interested in the outcome but did not really share the same level of concern that Mr Scipione had.

Senator BRANDIS: There was a level of concern among some of the state and territory police commissioners, but it was not uniform. Would that be a fair summary? Mr Negus: That is correct.

Senator BRANDIS: What was the concern? Mr Negus: One of the main concerns was identity, in that people who were here on visas did not necessarily have a fixed address. Mr Bowles provided a range of information—I am not sure if he shared it with the committee—about identity cards that were being issued. There was some concern about whether or not that should have a residential address attached to it. There was quite a bit of discussion about that. Senator BRANDIS: I hear what you said before about what the statistics show, but was the concern expressed also a concern that this was potentially a community safety problem that there were all these people whose identities were not established being introduced into communities? Mr Negus: There were a full range of concerns, I think, expressed. An example from Western Australia, for instance, was that, if someone was injured in a car accident and had no other identification on them, how would they be identified with no next of kin? Mr Bowles was able to put that to rest in that, if they had a card, the department of immigration could be contacted and would provide the person's latest residential address. Of course, people in these types of environments do move around and we did not want to have to issue a new card every six weeks that somebody was moving to a new location. There was a general range of concerns, but I think there was also an absence of knowledge from the states and territories

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about the program, what it meant, what was being done and how it was being overseen. Mr Bowles was able to provide, I guess, a level of comfort in that regard that the department is doing what it can to monitor and oversee the movement of people into the community, and that it was prepared to help the state and territory police with any concerns they had.

Senator BRANDIS: I asked about the community safety issue. That was raised, wasn't it, by at least one of the participants in the meeting? Mr Negus: Again, I do not have notes of the meeting, but, from memory, I think the potential for community safety was certainly raised, yes.

Senator BRANDIS: So that was among the concerns that were ventilated at the meeting? Mr Negus: Again from memory, yes. Senator BRANDIS: Commissioner Scipione is in fact the current chair of the police commissioners group, the peak group of state and territory police commissioners, at the moment, isn't he? Mr Negus: There are various groups that all of us chair. At the moment, that is held with the Northern Territory—the meeting where we had this discussion was in the Northern Territory. But Commissioner Scipione sought to take ownership of this issue and organised the teleconference. Senator BRANDIS: The issue of gaining access from DIAC to the residential address details of asylum seekers released on bridging visas and placed in community detention was one of the matters discussed, wasn't it, and Mr Bowles was seeking to cooperate with you in providing those details to you. Mr Negus: Yes, he was. To go back to your earlier point, the deputy commissioners, who were already looking at some of these issues, were assigned to take these matters further. So the meeting itself did not reach any conclusions other than that it would be referred back to the deputies, who were to have the meeting that you mentioned and take these issues further. Senator BRANDIS: It is the case, isn't it, that the commissioners indicated to DIAC that they required access to residential address details for asylum seekers being released on bridging visas or placed in community detention. That was something that the commissioners took to the department and, indeed, that was one of the main reasons for the teleconference. Mr Negus: Again, I caution you using the commissioners as a generic term, because there were— Senator BRANDIS: It was an outcome of the meeting. Mr Negus: Certainly some of the commissioners or their representatives were seeking that outcome; others were less insistent upon that; but it was certainly something that was discussed. Senator BRANDIS: Was that outcome in fact secured? Did Mr Bowles give those undertakings? Mr Negus: I cannot recall other than to say Mr Bowles was very cooperative and tried to do what he could to allay any fears and referred matters back to the deputy commissioners. Mr Colvin, who would have been at that last meeting, is here. Perhaps he can give you more detail.

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Mr Colvin: I will put some dates on the record. At the 17 April deputy commissioners operational management meeting, which is a meeting we have regularly, DIAC did come and this issue was discussed. The concerns the commissioner has raised were talked about in a general sense. That was then followed by the meeting you were talking about, Senator, on 17 May—the teleconference with Commissioner Scipione—where the issue was pushed back to the deputy commissioners forum. We met by teleconference on 23 May. Mr Cahill, whom you heard evidence from on Monday or Tuesday, spoke to the deputy commissioners or their representatives and has agreed to come back to us with some information about what detail can lawfully be provided. Under the circumstances, as the commissioner has said, one of the challenges for DIAC is that these people who are placed into the community may only be in a location for a short period of time before they move. So their initial location may not be their ultimate location. DIAC and Mr Cahill were very helpful and have committed to coming back to us within the coming weeks with a suite of measures and some legal advice about what can be provided to state and territory jurisdictions.

Senator BRANDIS: Had access to this information, particularly the address details of the IMAs released into the community, been previously sought by police commissioners and refused? Or was this the first occasion on which the wish of at least some of the commissioners to have this information was, to your knowledge, raised at least at that level with DIAC?

Mr Negus: It was the first time, from my memory, that it was raised as a collective. I am not sure what has been sought by individual police forces from DIAC in the past. They all have strong bilateral relationships with DIAC in their own right. They do not come through the Commonwealth law enforcement agencies.

Mr Colvin: The issue has been around for some time and has been discussed at various deputy commissioner meetings. The issue has changed and morphed over that time. I do recall one previous occasion where, on behalf of the deputy commissioners, I did write to DIAC to say we were seeking some more information about what forms of identity those people released into the community would actually have. At the time it was paper based. As the commissioner has said, it has now transitioned into a card. So it is not a new issue.

Senator BRANDIS: How long ago was that, Mr Colvin? Mr Colvin: I would have to take an exact date on notice. Senator BRANDIS: Roughly. Mr Colvin: About 12 months ago. Senator BRANDIS: When you wrote to DIAC then, did you get the level of cooperation you were hoping for?

Mr Colvin: The issue was mainly one for the states and territories, so I cannot answer on their behalf. But certainly DIAC responded and information has been provided. The issue has, of course, been raised again.

Senator BRANDIS: I think I interrupted you, Mr Colvin. Were you going to go on to say something more about the issue? Mr Colvin: No.

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Senator BRANDIS: Does the AFP have a view about whether there are any valid privacy grounds to deny state and territory police forces access to residential address details of IMAs released into the community?

Mr Negus: I think that is a matter for DIAC to answer. They have been very responsive, from what I have seen. They— Senator BRANDIS: They have not raised privacy concerns with you?

Mr Negus: They have. As the deputy commissioner just indicated, there are a range of legal issues here which they are getting advice on so they can provide what they can in the context of meeting the requirements of the states and territories. But, from the AFP's perspective, we will await DIAC's view like everyone else.

Senator BRANDIS: That advice, as you understand it, is currently being sought? Mr Negus: From the advice of the deputy commissioner from the last meeting of the deputy commissioners and DIAC, yes, that is the case. Senator BRANDIS: Mr Colvin, you were at the most recent meeting, so why don't you just tell the committee where it was left; what, if any, decisions were made; and where we go from here in relation to this issue?

Mr Colvin: Privacy was raised, as the commissioner has said. That is one of the key issues in determining what the legislation will allow. DIAC have agreed to go away and seek some advice. They are doing that.

Senator BRANDIS: What was the legislation under discussion? Was that the Migration Act? Mr Colvin: Both the Migration Act and the Privacy Act.

Senator BRANDIS: I cannot see how the Privacy Act would have much to do with a case like that, but please go on. Mr Colvin: DIAC have agreed to come back with some further thoughts on what can be released and how it can be released. The issue comes down to services providers as well. Some of the information is held, of course, by service providers who are acting on behalf of DIAC.

Senator BRANDIS: Like Serco and people like that? Mr Colvin: No, not necessarily Serco; they are non-government organisations who look after the welfare of some of these people released into the community. We are effectively awaiting DIAC to come back to us and I have full confidence that they will do that shortly. Senator BRANDIS: I must say that it does strike me as very surprising that, if a department of the Commonwealth—that is, DIAC—has information in relation to a category of persons and the police forces of at least some of the Australian states where these people live, led by Commissioner Scipione, commissioner of the biggest of the Australian police forces, raise a concern from, among other things, a community safety point of view, there would not be a ready ability for a Commonwealth department to provide that information to the state police, subject to obvious confidentiality undertakings. Surely it is a commonplace thing for Commonwealth departments to provide information about groups of persons who the police have concerns about, from a community safety point of view, to the state and territory police. Surely that happens.

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Mr Negus: It would be presumptuous of me to try and answer on behalf of Mr Bowles. I think that that is a matter for DIAC. Senator BRANDIS: Yes, that is true. It is more a question for them and they were asked that on Tuesday. Fair enough. I have one other matter, Commissioner Negus. Earlier on, before the lunch adjournment, you were being asked some questions about the report on the 7.30 Report on Monday evening concerning Christmas Island. I do not want to go over all of that again, because you were asked a lot of questions about that by my Greens colleagues, but do I understand that your evidence was that there was no reference to Sergeant Brendan Thomson in any of the email communications?

Mr Negus: No, that is incorrect. We went through in some detail. There was an original email that was sent which had no reference to Sergeant Thomson. A subsequent email was sent to a limited number of people which did reference Sergeant Thomson.

Senator BRANDIS: I want to turn now to the question of detention centres, referring specifically to the current budget. Do you have a copy of the portfolio budget statement there? Mr Negus: We do, Senator.

Senator BRANDIS: I take you, please, to page 145, table 1.1, the agency resource statement for your agency. If we go to the bottom line of the total net resourcing for the agency, the 2013-14 estimate compared to the 2012-13 actuals shows that you have taken another haircut, haven't you? Your total resourcing in the 2013-14 year will be $1,708,534,000 compared to $1,753,749,000 in the previous year. So your budget has been cut by about $45.2 million. Is that right?

Mr Negus: I agree with the figures. I might just get Mr Wood to— Senator BRANDIS: $45.2 million. Mr Negus: That is correct. But I will get Mr Wood to give you an explanation of what that actually means. Mr Wood: The line-by-line comparison of each of those columns shows where the shifts in the funding have occurred— Senator BRANDIS: Yes, I see that. But a lot of it has come from the International Deployment Group— Mr Wood: Correct. So we have reduced the level of activity in Afghanistan which we talked about earlier here and also the funding for RAMSI is less than it was the previous year for the Solomon Islands. Also, there are shifts in the capital funding because we have had major projects around the airports ceasing, albeit in the year after this, we then have more money coming through for our new forensic facility, for example. So the line-by-line shifts in the budget show that, particularly in the area of equity injections and particularly in the areas that you have highlighted, senator, around funding the International Deployment Group, there has been an explicit reduction in some of those activities, particularly Afghanistan and the Solomon Islands. Senator BRANDIS: Yes. Some of those reductions, because of the expiry of the mission, are understandable. Mr Wood: Or redesign of the mission for the next two or three years. Senator BRANDIS: Expiry or recasting of the mission?

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Mr Wood: Yes. Senator BRANDIS: That is fine. Some of those are understandable but there is one, though, that does trouble me. It is a budget measure. Have you got budget paper No. 2 there? Page 86. The first budget measure on page 86,redirection of surge capacity program, says the government will save $19.6 million over four years—that is just a flat-out reduction over the forward estimates—by redirecting funding from the Australian Federal Police's surge capacity program into other government priorities, but the AFP will continue to have a surge capability through the Specialist Response Group. This is just a flat-out capability reduction to a standing program—that is, the surge capacity program. Can you tell me in the first place what the 'surge capacity program' is designed to do? Mr Wood: The surge capacity program within the protection function of our organisation is intended to ensure that for specific events that occur we have a capacity to increase the rate of effort to address that particular event That may be, for example, to increase our level of activity to support the visit of a head of state. It may relate to a specific event not quite on the scale of a CHOGM but a smaller-scale event where we do need to increase our rate of effort with our protection resources. Senator BRANDIS: And there has been no corresponding increase in the other program, the Specialist Response Group. So, even though it is said in the budget paper that the Specialist Response Group could deal with some of the matters that the surge capacity program deals with, in fact the surge capacity program has been degraded by about $19.6 million and the Specialist Response Group has not had any increase in its allocation, has it? Mr Wood: That is correct. Senator BRANDIS: I want to go back to my previous questions, Mr Negus, to clarify one point. Or is it Mr Colvin—whoever is best to answer this. Is it the case that notwithstanding the discussions about the provision of addresses or locations of IMAs in the community, DIAC has not at this point agreed to provide that information? Mr Negus: That is correct, but I would have to say that they have undertaken to look at the legal issues around that and come back with a response in a very short time. Senator BRANDIS: Are there any arrangements between the AFP and DIAC providing for the reimbursement to the AFP by DIAC of some or all of its expenses related to people smuggling and detention operations? Mr Wood: There are administrative arrangements agreed between DIAC, the AFP and the Department of Finance and Deregulation where in relation to costs associated with the support we are providing for, for example, the escort of IMAs between detention centres we will invoice DIAC— Senator BRANDIS: On a fee-for-service basis? Mr Wood: We have structured the relationship on a fee-for-service basis. Senator BRANDIS: But I imagine that is only in relation to specific services like the example you instanced. But for the broader policing support function that the AFP carries out that bears upon the asylum seeker and detention centre issue, do you have any cost recovery from DIAC?

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Mr Drennan: Yes. Certainly for services that we provide for DIAC in regards to transport of people on planes we directly invoice them. Similarly, where we are deploying resources to Christmas Island to support the public order issues in relation to detention centres, again, we invoice DIAC.

Senator BRANDIS: Do you? So when you send officers to Christmas Island, you charge DIAC for them? Mr Drennan: When it relates to issues regarding the detention centre. If it relates to the investigation of people smuggling and the interviews of potential witnesses then those are matters that come from our appropriations.

Senator BRANDIS: I mentioned before a fee-for-service basis, but would it be more accurate to call it a cost recovery basis? Mr Negus: That is right.

Senator BRANDIS: So you do not make a profit on— Mr Negus: No, we do not. Senator BRANDIS: Presumably you charge an administrative charge of some description? Mr Negus: It is a full cost recovery. Senator BRANDIS: That is fine. Senator KROGER: Is it full cost of recovery of direct costs of services and so on, not cost recovery in terms of the value of personnel on the ground at the time? Mr Drennan: It is the actual direct costs in relation to providing the services. Some of those include salaries. In some other cases it does not. How we determine that is quite complex. But certainly providing the services and the deployment of our people to those particular roles are all the costs except for salary, which is only included in some instances. Senator BRANDIS: Can I move to something else, please. You have seen reports, I am sure, in the media about an Egyptian asylum seeker who it is alleged had been convicted of terrorism offences some years ago in Egypt. His name is not in the public domain, but you would be aware of the case. Has the AFP been involved in investigating that man? Mr Drennan: As you would appreciate, we are limited in what we can say. Senator BRANDIS: Sure. I am not going to ask you to say more than you should— Mr Drennan: Thank you. Senator BRANDIS: but I do not think it is asking too much to know whether the AFP has been involved in investigating this man. Mr Drennan: We have been involved in identifying the person who is the subject of the issue. Senator BRANDIS: And that person's identity has been established, has it? Mr Drennan: That is correct. Senator BRANDIS: Is the man still at Inverbrackie? Mr Drennan: No, he is not. Senator BRANDIS: Are you at liberty to tell me where he is?

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Mr Drennan: He is in a detention centre in Sydney. Senator BRANDIS: As I understand it, he was taken back into detention after having been released on community detention. When did he go from Inverbrackie to the detention centre in Sydney? Mr Drennan: On 17 April this year he was moved by DIAC to a secure detention centre. Senator BRANDIS: By 'establishing the identity' I assume you mean matching his identity with the identity of the person whom he was alleged to be. Is that a fair characterisation? Mr Drennan: Yes. Senator BRANDIS: Is that the limit of the AFP's role? Mr Drennan: Yes, it is. Senator BRANDIS: Who has progression of the matter at the moment, by the way? Is it DIAC? He has been taken back into detention. Is your role finished for the moment or will there be further steps undertaken by you involving the investigation of this man's alleged past offences? Mr Drennan: Certainly the person's offences are matters which, you would appreciate, Senator, will need to take another course, but we would assist with that if requested. As far as anything else we may do here in relation to him, that is something that we are monitoring but it is not something we are actively doing at the moment. As far as the person's progression through the immigration processes is concerned, it is a matter for Immigration. Senator BRANDIS: I understand that. While the man was released into the community before being taken back into detention was he investigated for any offences in Australia? Mr Drennan: I need to be cautious here in relation to what I say. Firstly, he was in the Inverbrackie Alternative Place of Detention; that is to be precise as to where he was. Senator BRANDIS: At some stage, though, he had been released into the community, hadn't he? Mr Drennan: The advice I have is that he was detained in Inverbrackie Alternative Place of Detention. Senator BRANDIS: Since he has been on the Australian shore, has he been under investigation for any offences? Mr Drennan: Our role was to attempt to identify him and establish his identity and to establish that he was the same person who was the subject of those other matters. That has been the extent of our involvement. Senator BRANDIS: And the other matters were alleged terrorism offences tried in Egypt some years ago, were they not? Mr Drennan: Yes. Senator BRANDIS: There is also the case of a Sri Lankan man who allegedly murdered his girlfriend. Are you familiar with that case? Mr Negus: We are. I will get Deputy Commissioner Colvin. That is a separate area of responsibility.

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Senator BRANDIS: Mr Colvin, what can you tell us about the AFP's involvement in that case? Mr Colvin: Certainly we are aware of the matter. We have been in constant discussion with DIAC about the allegation that this person was involved in a murder in Sri Lanka. Similar to the matter that you have just heard about from Deputy Commissioner Drennan, our role has been principally to identify whether this is the same person. There are limitations and restrictions on what we can do to identify him while he is going through an immigration process.

Senator BRANDIS: Have you established that identity or is your investigation into the matter still ongoing? Mr Colvin: We cannot with a 100 per cent guarantee establish the identify, but we are satisfied that it is most likely the same person, yes.

Senator BRANDIS: Has that person being taken back into detention? Mr Colvin: Yes, he has. Senator BRANDIS: Was there a time when he had been released into the community? Mr Colvin: Yes, there was. Senator BRANDIS: When was he taken back into detention? Mr Colvin: He was taken back into detention on 20 April 2013. Senator BRANDIS: When did he arrive in Australia? Mr Colvin: He arrived on 18 May 2012. Senator BRANDIS: When was the AFP first alerted to the possibility that this man may have committed that crime in Sri Lanka?

Mr Colvin: We were first alerted by the Australian consul in Colombo, Sri Lanka, in July 2012. Then there were subsequent pieces of information that we had begun to pull together to work out whether we could establish conclusively that it was the same person. But July 2012 was when we were first alerted to the possibility that this person had travelled to Australia and was a wanted murder suspect in Sri Lanka.

Senator BRANDIS: In relation to both the Egyptian terrorist and the Sri Lankan man who is wanted for murder in Sri Lanka, were either of those two individuals the subject of an Interpol red notice?

Mr Colvin: The Sri Lankan gentleman is not the subject of a red notice. The Egyptian gentleman was the subject of a red notice, yes. Senator BRANDIS: Just explain to the committee, would you, please, what a red notice does and particularly who in the Australian law enforcement network has access to these Interpol red notices.

Mr Colvin: Firstly, red notices are managed and facilitated by Interpol. We are the representative for Interpol in Australia. We are the conduit for information from Interpol. All Australian law enforcement agencies, though, have access to Interpol information. Mostly it will be via us. Interpol have a range of notices that have different colours and they relate to different types of matters. It could be a family law matter or a missing person notice. It could be a list relating to passport offences. A red notice is the most serious of the notices. It is a

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notice that effectively signals to a jurisdiction that there is another jurisdiction that has an interest in a particular individual. A red notice will normally be particularised to the point that we can identify who that individual is and what the charges relating to that individual are. What it is not—and this is a common misconception in the community—is a notice to arrest. It is not an arrest warrant in any way. It has no legal basis here in Australia. What it is for us, though, is a flag so we can go back to the country that has asked Interpol to create this red notice if we need to establish certain things, which includes their preparedness to seek extradition and their ability to meet the Australian thresholds and the complete extradition process that you are quite familiar with. That is a process that is managed by the Attorney-General's Department.

Senator BRANDIS: So the red notice is kind of the wanted poster of the digital age, is it? Mr Colvin: You could put it that way, yes. Senator BRANDIS: If the Egyptian terrorist was the subject of an Interpol red notice, one would expect that when the security checks on him after his arrival were carried out that fact would have been checked and discovered. Would it not? Mr Colvin: The AFP does not routinely play a role in the vetting of each individual. Senator BRANDIS: I understand that. By the way, I am not saying that you missed anything here. In fact, you are the one who picked it up, so this is not a criticism. I am just asking you to help me understand the process. At the earliest point at which the Egyptian terrorist was assessed those who assessed him, whether it was DIAC or ASIO or whoever carrying out a threat assessment, would have been in a position to access the Interpol red notices and check each IMA to see whether there was a red notice out for him or her, wouldn't they? Mr Colvin: I may have to take that on notice. I do not believe that DIAC would ordinarily check Interpol alerts. On this occasion, we brought it to the attention of DIAC. Senator BRANDIS: You brought it to their attention? Who brought it to your attention? Mr Colvin: We will double-check. Deputy Commissioner Drennan feels it was through routine checks on the names. Senator BRANDIS: The information on the Interpol red notice I think you told us a moment ago also includes the crimes for which the person is being sought. What were the crimes for which this person was being sought by the Egyptian government? Mr Colvin: The offences on the red notice related to his conviction in absentia for terrorism related matters. Senator BRANDIS: By an Egyptian court? Mr Colvin: Correct. What I do not have are the particulars of the offence. Senator BRANDIS: Were they not on the red notice? Mr Colvin: Ordinarily they would be because a red notice is normally quite detailed. Senator BRANDIS: You do not have a copy of the red notice to hand? Mr Colvin: No, I do not. Senator BRANDIS: Even if you do not, can one of the other officers tell us a bit more fully about the crimes this Egyptian man had been convicted of.

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Mr Drennan: Yes. As Deputy Commissioner Colvin said, he was convicted in absentia by a military tribunal in Egypt. Senator BRANDIS: When, by the way? What year?

Mr Drennan: I do not have that date. Senator BRANDIS: What more can you tell us? Mr Drennan: The conviction was in relation to being a member of a terrorist organisation and for being involved in terrorist activities. Senator BRANDIS: I see. Were there two convictions on those two separate charges? Or was there a multiplicity of terrorist activity? Mr Drennan: The red notice was for those two particular offences. Senator BRANDIS: Do we know what the proscribed organisation was? Mr Drennan: I did not say it was a proscribed organisation; it was a terrorist organisation. As you can appreciate, proscription is different in different countries in relation to what organisations may be proscribed. Senator BRANDIS: Quite right. So under Egyptian law there is a crime relating to being a member of a terrorist organisation and the Egyptian authorities have their own way of deciding what is a terrorist organisation and what is not and if you are a member of a terrorist organisation for the purposes of Egyptian law you have committed that crime against Egyptian law? Mr Drennan: That is correct. Senator BRANDIS: Can you take on notice what terrorist organisation he was convicted of being a member of? Mr Drennan: Yes, I can. I can tell you that the Interpol red notice was issued on 9 October 2001. Senator BRANDIS: And would we expect in the ordinary course of events that that means that the convictions were recorded reasonably soon before then? Mr Drennan: Probably not. I would like to think so, but when a person is convicted here in Australia of a significant offence it would not be the normal course of duty to automatically take out a red notice with regards to that person unless we thought that person was overseas or travelling. I would hate to jump to that conclusion. Senator BRANDIS: No, that is fine. I do not think much turns on that. So the second offence for which he was convicted by the military tribunal was for terrorist activities. So we know at least, assuming the conviction by the Egyptian court was a regular and valid one, that he was not just a passive member of a terrorist organisation in the eyes of the Egyptians but had actually done things that were terrorist acts. Do we have any particulars on what the terrorist acts were? Mr Drennan: I am just looking at what I have here. My recollection of the red notice is that there were two specific offences, but the briefing we have here says that he was convicted in absentia of: premeditated murder; destruction of property; possession of firearms, ammunition and explosives without a permit; and membership of a terrorist group.

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Senator BRANDIS: Does that note you are reading from now tell you the name of the group? Mr Drennan: No, it does not.

Senator BRANDIS: Are there any other offences? Mr Drennan: Forgery of documents. Senator BRANDIS: So—premeditated murder, destruction of property, possession of firearms and possession of explosive devices without a permit. Do we know whether all of those offences related to a particular terrorist act? They would all be consistent, for example, with exploding an explosive device and killing people in the course of that act. Does your note tell you whether those offences were all generated by a single terrorist act or by a multiplicity of different terrorist events? Mr Drennan: Again, the note does not tell me. My recollection from the red notice is that it was for offences both inside and external to Egypt. Senator BRANDIS: So this person was a serial terrorist as well as, obviously, a serious terrorist if he is engaged in premeditated murder, among other things. Is it a man we are talking about? Mr Drennan: Yes, it is. Senator BRANDIS: When did this man arrive in Australia? Mr Drennan: He arrived on 9 May 2012. Senator BRANDIS: Where was he first accommodated when he arrived in Australia? Mr Drennan: The first note that I have says that he was processed by DIAC and then moved to Inverbrackie detention centre. Senator BRANDIS: Did he come to Christmas Island initially? Mr Drennan: I think that is correct, but I would need to confirm that. Senator BRANDIS: You think he went to Christmas Island but you are sure he then went to Inverbrackie. Mr Drennan: Yes. Senator BRANDIS: When did he go to Inverbrackie? Mr Drennan: He was moved to Inverbrackie on 9 May 2012. Senator BRANDIS: That is the day you told me he arrived. Mr Drennan: Yes, sorry. Just let me clarify that. He arrived on that date. We do not know on what day he was moved to Inverbrackie. Senator BRANDIS: You do not know what day he was moved to Inverbrackie? Mr Drennan: No. Senator BRANDIS: Was he released into the community? Mr Drennan: I do not know. You would need to ask DIAC. My records show only that he was in Inverbrackie detention centre. Senator BRANDIS: What was the date on which you became aware of the existence of the Interpol Red Notice?

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Mr Drennan: I think it took some time to establish the identity and tie it up with the Interpol Red Notice, but I can say that definitely on 26 June we were aware that he was possibly the person who was a match for the Interpol Red Notice.

Senator BRANDIS: Then you carried out a process of investigation and arrived at the conclusion that he was in fact the same person as the person identified on the Interpol Red Notice. When did you arrive at that conclusion?

Mr Drennan: On 14 November 2012. Senator BRANDIS: Was he still in Inverbrackie at that stage? Mr Drennan: Yes, he was. Senator BRANDIS: I assume you advised DIAC immediately you had arrived at that conclusion.

Mr Drennan: Yes, we did. Senator BRANDIS: When was he taken back into more secure detention? Mr Drennan: Again, the records we have are that he was moved on 17 April 2013 to a secure immigration detention centre. Senator BRANDIS: That is the one in Sydney? Mr Drennan: That is correct. Senator BRANDIS: Does that mean that between you having finally established his identity as the person who was the subject of the Red Notice, on 14 November, and him being moved to the more secure facility, on 17 April 2013, five months elapsed while he remained in Inverbrackie? Mr Drennan: On the notes that I have, we confirmed on 14 November when he was in Inverbrackie, and he was transferred to the detention centre in Sydney on 17 April. Senator BRANDIS: And that is where he is now? Mr Drennan: To my knowledge, yes. Senator BRANDIS: I should ask this, but it may be that you are not able to answer it; I am just not sure whether you are able to answer it or not. Are you at liberty to tell us this man's name? Mr Drennan: No, Senator. If I can just clarify two of the issues you asked about before. The actual conviction was on 18 April 1999 and the terrorist organisation is the Egyptian Islamic Jihad. Senator BRANDIS: I know this is more a question for DIAC than for you, but perhaps you may be able to give us some information about this, Deputy Commissioner. Is there any explanation of why this man, who is plainly a dangerous terrorist, was allowed to stay in Inverbrackie for five months before he was taken into more secure detention? Mr Drennan: Senator, I think you answered the question: it is more a matter for DIAC. Senator BRANDIS: Fair enough. Thank you very much, Deputy Commissioner, that is very helpful. I want to ask you a question about the Anti-Gang Taskforce. I understand— though I am sorry I do not have the source document with me—that you, Commissioner, have

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indicated to the staff that $58 million has been allocated over four years for the establishment of an AFP-led national anti-gang task force. Is that is right? Mr Negus: That is correct. Senator BRANDIS: Was that in the budget?

Mr Negus: It was, yes. Senator BRANDIS: Was that a specific budget measure? Mr Negus: Yes, it was, announced by the Prime Minister on 3 Mar 2013. Mr Wood: Just while you are looking for your next question, Senator, in the PBS on page 147 there are measures announced since the MYEFO and the top of the page addresses gang violence and organised crime et cetera. There are also entries in other agencies that are part of the task force, but that is our entry.

Senator BRANDIS: Yes, I see. Is that money actually in the budget? Mr Wood: It is on page 137 of our PBS and is in our budget— Senator BRANDIS: No, but— Mr Wood: Sorry, yes, Senator, it is. Senator BRANDIS: At least the first $15 million for 2013-14 is in the appropriation acts for this year, is it?

Mr Wood: That is correct, yes, it is. Senator BRANDIS: Thank you very much. I have finished. Mr Colvin: Madam Chair, can I answer one question that Senator Brandis asked me to take on notice? CHAIR: Sure. Mr Colvin: Senator, I indicated that the issue in relation to information being provided to state and territory police by DIAC was not a new issue; it had been around for some time. I initially wrote to my counterpart in DIAC in December 2011 and they responded on those issues, which were very similar, in January 2012. Senator BRANDIS: Thank you very much. Senator KROGER: I wanted to ask a question about what I think you referred to as a red notice—the description used— Mr Negus: The Interpol red notice, yes. Senator KROGER: for the No. 1 classification with Interpol. What is the process if there is an Interpol red notice on an Australian citizen? How do you deal with that? Mr Colvin: It could come to our attention in a number of ways, but once it has been brought to our attention the first step we would take would be to liaise with our counterparts in the Attorney-General's Department who control and administer the extradition and mutual assistance in criminal matters processes and acts. The first step in the process would be to go back to the source country who asked Interpol to register the notice and to seek detail from them about, firstly, whether they still intend the red notice to be in existence. Often they can be put on there long after a country has stopped looking for somebody. We would ask questions about the actual offence. We would try to establish whether they would seek that

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person’s extradition. If the answer to that were yes then they would need to satisfy a range of measures under Australian law about the standard of the conviction, about the information. We would have to satisfy ourselves of certain requirements with the country about their human rights records and what might be the outcome if we were to extradite a person back to that country. On the basis that all of that can be assured—

Senator KROGER: Firstly, it would be a fairly straightforward process in assuring yourself of the sentence, whatever it may be, in another country. Mr Colvin: Yes.

Senator KROGER: That would be a fairly straightforward exercise. What is the process in assessing human rights—whether they subscribe to the UN human rights— Mr Colvin: Senator, I should not put over-emphasis on human rights above other things, but perhaps the department may wish to answer the question.

Mr Negus: Just while we are going to the department, I think it is important to recognise that it does not override the traditional extradition checks and balances that are in place, and the courts would still have a role in this. You would have to satisfy all of the preconditions that would exist in any extradition process before this were a flag to say that this could be something that is interesting, and we would go to that country and then start a formal process around how this might be taken forward further. But it certainly does not entitle or allow other countries to do anything to Australian citizens other than say, 'Someone should contact this country because they may be wanted there,' and we then start the normal process from there.

Senator KROGER: Given that you confirm that they have been sentenced for something in another country— Mr Negus: It is not only sentencing; they could be wanted for a particular matter or—

Senator KROGER: Or wanted for charges or whatever, and Australia has an extradition treaty with that country, and what is then the process? You determine that, yes, Australia has an extradition treaty. Is it then a court process?

Mr Negus: Yes, it is. But, again, I will probably go to the department to explain that for you. Mr Wilkins: It should have been one that we answered last night, Madam Chair.

CHAIR: In terms of the department answering questions, we can do it later tonight. Mr Wilkins: But those people were all here last night to answer these questions. Senator KROGER: I am happy to look at Hansard. As it was just raised by the gentleman at the table, I was interested to know to what extent it is up to the individual to, I guess, fight this through the court system. I am aware of instances where red notices have been unfairly sought and Interpol has done that. Mr Wilkins: Can I quickly say, Senator, that the process is one which is determined through the courts, but it is actually a mixed administrative and judicial process in most countries. There would need to be an application by the country wishing to extradite the person. They would need to demonstrate to the satisfaction of the Attorney-General and probably a magistrate that there was an offence committed that this jurisdiction recognises as parallel to certain offences that occur in this jurisdiction, so we do not just recognise any sort of offences, and that the processes that obtain in that country are ones that Australia would

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recognise as being according to certain standards laid out in the extradition legislation passed by this parliament. On the basis of that there would then be an opportunity for the person to utilise all the facilities, including judicial review and including the courts. There have been a number of cases, as you have watched in the court processes in this country, where things have gone all the way to the High Court on judicial appeal. Some extradition cases take decades to be dealt with. But if, finally, the person either consents, or the courts determine and the Attorney General determines—or if the Attorney General determines and the courts are not invoked—then the person can be return to the country which has made the application for their extradition. But that is basically the way the system works.

Senator KROGER: I appreciate that, and I do not want to go down the track of the extradition process itself. I was more interested in: once a red notice Interpol had—what is the terminology?

Mr Negus: Red notice. Mr Wilkins: There is nothing magical— Senator KROGER: As to the onerous process of having that red notice lifted, which I know a number of people have had, what is your approach to that in the meantime? So, from an AFP perspective, if an Australian citizen has a red notice, clearly it would be very difficult for them to travel for starters. Mr Negus: I think travel is the major concern, and we were just having that conversation here. They would have to apply back through Interpol to have that red notice lifted. But it can be put on by any of the member countries—I think we are up to 190 member countries— around the world. And then the individual, if they wanted to fight that notice being in place, would have to go back, and it could either be lifted by the country who put it in place, or it could go to the Interpol General Assembly, I think, for oversight and voting on in that context, about how it is lifted. So it is a very serious matter to have it removed. But as I said, you can imagine that there are a range of levels of development in countries around the world, and all of those are eligible to put on red notices which could apply to an Australian citizen. But as I said, all the protections under law that apply in this country, as far as extradition, apply across the board for people on Interpol red notices as well. Senator KROGER: Could you give us an indication of how many Australian citizens would have a red notice? Mr Negus: There would not be many. I could not tell you off the top of my head—and I am not even sure whether or not we would divulge that sort of material, for operational reasons— Senator KROGER: Sure. Mr Negus: but it is not a large population. There have been occasions when Australian citizens have been involved in, particularly, offshore issues, where they have found difficulty in travelling and have tried through a number of means to have those removed or settled in the country of origin. CHAIR: Let us go to afternoon tea; there is no point, I think, in starting the Australian Government Solicitor with only about two minutes to go. So, Commissioner Negus and your team, thanks again for your presence at estimates this year.

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Mr Negus: Thanks, Chair. CHAIR: Thanks for your time this afternoon. Let us go to afternoon tea. Proceedings suspended from 15:27 to 15:45 Australian Government Solicitor

CHAIR: Welcome. Mr Govey, do you wish to make an opening statement? Mr Govey: No, I do not. CHAIR: Senator Brandis has questions. Senator BRANDIS: Mr Govey, can you confirm for me, please, that earlier this month your office—specifically Mr Nigel Oram—wrote to the solicitors acting for the Federal Circuit Court judges in their litigation, going back to the days of the Federal Magistrates Court, with the Commonwealth, in the course of discussing settlement of the matter? In that letter he indicated that the Commonwealth's party/party costs to date had been $1,114,000.

Mr Govey: I do not have that correspondence. I am able to confirm that there was correspondence. What I do not know—and I might need to seek some guidance from my colleagues in the department—is whether or not the correspondence was privileged.

Senator BRANDIS: We had this discussion yesterday afternoon—and no doubt Mr Wilkins will jump on me if he thinks I am not describing this correctly—but I think it would be fair to say that objection was taken on behalf of the Commonwealth to the disclosure of details of correspondence in the course of, potentially, the settlement of litigation, to which I responded that all I was after was a confirmation that those are in fact the Commonwealth's assessed party/party costs to date. There was information volunteered from the department that a cost assessor had been engaged and had made an assessment of the Commonwealth's costs to date. So the only question is: what is the figure? I have given you the context in which that figure has been proffered, but, really, the only question I am asking is: is it not the case that the Commonwealth says that, as at May, its party/party costs in this litigation was $1,114,000?

Mr Govey: Yes, but for the reasons you have outlined, Senator, I am not in a position to disclose what that figure is or provide any form of confirmation, because it is privileged and because negotiations are going on or discussions are going on—

Senator BRANDIS: I am not asking about the negotiations. I am asking you whether in fact the Commonwealth has incurred a certain amount of costs in a particular matter. That is all. The fact that I may have become aware of this in a particular context is neither here nor there. You are answerable to the committee in relation to the Commonwealth's legal expenditure, as I think is uncontroversial. I am asking whether the Commonwealth's legal expenditure in a particular case has so far been in a particular sum, which, as we have already heard evidence, has been assessed by a cost assessor.

Mr Govey: I would want to refer that to the Attorney-General's Department, because the instructions I have are that disclosure of matters relating to the handling of the costs settlement are being treated as confidential.

Senator BRANDIS: But whether or not the Commonwealth has spent a certain amount of money in a case is not confidential, is it?

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Mr Govey: Ordinarily not, but I think in the situation where the Full Court of the Federal Court has made a costs award and there are discussions going on and there is correspondence between solicitors for both sides, it is not something that I, as the solicitor, or as the chief executive of the solicitor for the Commonwealth, would want to disclose without discussing it with the department.

Senator BRANDIS: So you want to take it on notice? Mr Govey: We are certainly happy to do that. Senator BRANDIS: All right. CHAIR: Thank you for your evidence.

Australian Security Intelligence Organisation [15:52] CHAIR: Welcome to the hearing. Do you have an opening statement? Mr Irvine: I have a couple of brief remarks, because ASIO its seems has been rather a lot in the news this week for a range of reasons, so I think it is probably appropriate for me to make some brief opening remarks in relation to ASIO's core national security mission, a mission that you need no assurance we take very seriously indeed.

In terms of the work and the threats that ASIO is dealing with, whilst these threats continue to evolve there have been some persistent themes over the last few years. I will touch on three of those.

The recent attacks in Boston and London have given the Australian community, I think, reason to pause and reflect on the security environment here in Australia, bearing in mind the parallels in the United States and the United Kingdom. The threat from home-grown, lone-actor terrorists or small localised groups, who are often largely self-radicalised and see it as some sort of religious or political obligation to conduct an attack, remains real. Nor can we ignore, as events a few years ago in Norway showed, the possibility of terrorism from the extreme right.

In Australia we cannot think that just because we have prevented attacks on our soil in the past we are now immune from such threats. They are threats that the security intelligence agencies and the law enforcement have been focused on for more than a decade and we expect to have to continue to focus on them for some time into the future.

But I wish to say to this committee that in the light of these overseas attacks we have again reviewed the terrorism threat level for Australia and, based on the assessment of the situation in Australia a present, the level remains at 'medium'. In other words, a terrorist attack is assessed as feasible and could well occur.

ASIO continues to work closely with law enforcement agencies across Australia. Countering terrorism in a democracy such as Australia must be a combined effort between state and federal agencies and, importantly, with the community. ASIO and law enforcement agencies continue to work extremely hard to identify and counter any threats as early as possible. In doing so, we are extremely grateful for the support we receive from the community, particularly Australia's Muslim community, who are, if you think about it, among the potential victims, directly or indirectly, of terrorist violence. It is this cooperation and

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mutual support between the security intelligence organisation, the police and the community that has so far helped keep Australia safe. While no responsible head of a security intelligence organisation is able to provide an absolute guarantee that a terrorist attack will not occur in Australia, I think that some sort of crippling fear of a terrorist attack should not dominate the way Australians live their lives. But, nevertheless, we should all be alert and continue to be alert to the fact that there are and will be a very small number of people within our midst who still talk, and some aspire to walk, the language of terrorism. If people have concerns they should be reporting them immediately to ASIO or the police.

Our second important mission relates to national security in terms of protecting the nation against espionage and sabotage. We tend to talk less about this in public, and I do not intend to say very much today. But it remains a very important part of our national security work.

Behind the scenes ASIO continues to work closely with agencies such as the Defence Signals Directorate, the Computer Emergency Response Team in the Attorney-General's Department, the Australian Federal Police and the Australian Crime Commission to protect the government and the private sector against the burgeoning fear of cyber attack, which can threaten national security, personal privacy, intellectual property or other commercial interests. Our aim is to promote stronger cyber security awareness and stronger cyber security strategies to mitigate the threat. This has become a large part of our work in recent years— but, I stress, in partnership with the other cyber related agencies. For this reason ASIO warmly welcomes the announcement made by the Prime Minister earlier this year of the Australian Cyber Security Centre, which is in the process now of being established. This centre will contribute to the security, safety and privacy of all Australians.

Finally, the third issue that has occupied a considerable amount of our time remains our responsibility for providing a range of security assessments covering all sorts of classes of visa applicants, as well as personnel security assessments, and that continues to be a major task.

Senator BRANDIS: I want to take you first to ASIO's submission to the Parliamentary Joint Committee on Intelligence and Security Review of administration and expenditure, No. 11: 2011-12. Do you happen to have a copy of that document?

Mr Irvine: I do not have a copy at hand. Senator BRANDIS: I have asked for another copy to be brought to the hearing room. I will try to get a copy of that to you quickly. Mr Irvine: Was that classified or unclassified?

Senator BRANDIS: I was going to clarify this with you before I asked any questions. I obtained a copy of this document from the committee secretariat today and I made an inquiry as to whether it was classified or unclassified, and I was told it was unclassified.

Mr Irvine: I think you are right. Senator BRANDIS: However, out of abundant caution, can I give you my copy and ask you to satisfy yourself that it is unclassified. Mr Irvine: Thank you.

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Senator Ludwig: Thank you for that, Senator Brandis. I was just going to check whether Mr Irvine has a copy of that document, if you are going to go to particular paragraphs. Senator BRANDIS: I am getting a copy brought to the hearing. Mr Irvine, can you confirm to the committee that that is an unclassified document?

Mr Irvine: That is unclassified. Senator BRANDIS: To explain the context for the record, this is your submission to the review the Parliamentary Joint Committee on Intelligence and Security routinely undertakes into the administration and expenditure of the national security agencies. Is that a fair description of the exercise? Mr Irvine: Yes. Senator BRANDIS: In the executive overview of the document, on page 9, under the heading 'Expenditure', ASIO observes: ASIO’s budgetary situation will continue to place pressure on our ability to meet the expectations of Government and the Australian public. ASIO is continuing to examine options to manage the situation without a significant diminution of core operational work or capability.

The copy of the document I asked for is now available for you. Go to page 9 please. Then, below that sentence, beside the box 'Funding and expenditure' you say: Revenue from Government in 2011-12 was $328.1 million, a decrease of $16.8 million from the 2010-11 financial year.

Pausing there, you are of course familiar with the Parliamentary Joint Committee on Intelligence and Security's review No. 10, which dealt with the previous financial year, which was tabled in the House of Representatives by the chair of the committee, Mr Anthony Byrne, on Monday, who made some well publicised remarks. In that report the committee, on the basis of, among other things, the submissions of the national security agencies, it states, to quote paragraph 3.18:

Funding to ASIO in terms of total price of program expenses was $353 million, a decrease of $62 million (15 percent) from 2009-2010.

That is the 2010-11— Mr Irvine: Can I interrupt. What page are you reading from in that document? Senator BRANDIS: Paragraph 3.18, on page 30. Mr Irvine: Yes, I can see that. Senator BRANDIS: Then, at the top of the next page, paragraph 3.19 states: Revenue from Government in 2010-11 decreased $61 million (15 per cent) to $345 million, from

$406 million in 2009-2010.

I assume that it is the second of those paragraphs, 3.19, that marries up with the equivalent reporting period in your submission, on page 9. So we have a situation that, as the committee on a bipartisan basis found, revenue from government fell 15 per cent from $406 million in 2009-10 to $345 million in 2010-11, and that in the current period being reviewed you submit to the committee that the revenue has fallen again, in 2011-12, to $328.1 million, a decrease of $16.8 million, from the 2010-11 financial year. So it has gone from $406 million to $345 million to $328.1 million.

You go on to say in your submission:

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In 2011-12, ASIO's operating result was a loss of $5.3 million against a Government approved operating loss of $6.2 million. This loss is a technical loss and is attributable to the accounting treatment …

So we won't need to dwell on that. I will now take you to page 15. What I have been reading to you from so far is the executive summary. I will take you to the more detailed treatment of expenditure. On page 15 you say:

Revenue from Government in 2011-12 was $328.1 million, a decrease of $16.8 million from the 2010-11 financial year. This decrease was due to savings provided to Government in prior year budgets.

ASIO’s budgetary situation will continue to place pressure on our ability to meet the expectations of Government and the Australian public, and will continue to be impacted by ongoing Government efficiency dividends and absorbed additional functions.

ASIO is continuing to examine options to manage the situation without a significant diminution of core operational work, including: - Reductions to our overseas presence;

- Reducing our foreign engagement for training and capability development purposes; and - Reducing the amount of domestic and overseas travel undertaken by ASIO officers.

Then, if we go over to the next page, page 16, you say: ASIO has been required to make some difficult decisions regarding prioritisation and resourcing of activity over the 2011-12 financial year, and this is expected to continue in subsequent years. The fundamental considerations underpinning such decisions are the need to continue to invest in capability as defined by the professional skills of our staff and the technologies required to support our business.

Then, finally, I take you to the page 25, under the item 'Recruitment' in the chapter 'Human Resource Management', you say: In 2011-12 revisions to ASIO’s budget resulted in an indefinite deferral of the remainder of organisational growth.

In February 2012 ASIO’s approved staffing target was reduced to 1,760.

That is against a full-time staff of 1,860, which was identified in the Taylor report as the optimal growth target. In order to manage within its current budget, ASIO is maintaining a level of 1,730 full-time equivalent staff. While overall staff growth has been deferred indefinitely, ASIO will continue to recruit new intelligence professionals and technical officers in budget allocations.

The extracts from the submission which I have read you and the chart, figure 1 on page 16, charts the fluctuations in the revenue received from the government—that is, the top line. Mr Irvine, in your own words they all tell the same story—that ASIO is being placed under greater pressure by funding reductions in successive years and by increase in operational demands placed upon it by new demands, in particular the threat assessment of irregular maritime arrivals, which were not a cost pressure on ASIO in years gone by. I have quoted your own words to you but I am going to invite you to comment on what I have put to you to explain to the committee and to the public the pressures that your organisation faces from this continued depletion of financial resources to it by the government.

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Mr Irvine: The figures that you quoted are indeed the published figures that are publicly available for our budgetary situation. As you can see from the graph on page 31 of the review of administration by the PJCIS, over a period of the last five years our budgetary situation has moved upwards from about $250 million or thereabouts to a high in 2009-10 of about $400 million. Coinciding with the budgetary situation the government was facing, our funding has dropped off a little. As a result, the organisation has had to take appropriate steps to ensure that we deliver always the same and appropriate high level of security assurance.

In looking at the measures we took—and you listed some of them—we introduced very substantial efficiency measures across the organisation. We had a significant reorganisation. We reduced staff in certain areas. As you know, the staff growth to the figure of 1,860 was deferred—I think I have mentioned this in previous hearings—as well as the other measures that you have outlined.

What we have also done is look at our work and prioritised it so that we continue to give the most significant threats the attention and the treatment they deserve. Senator BRANDIS: I am sure you are doing your utmost and I am sure you and your officers are giving the Australian people exemplary service in a difficult environment. But I want to focus in particular on what you describe in your submission to the PJCIS inquiry as your absorbed additional function. So it is not just that the money coming to you from government has fallen, but you have been given more work to do. I want to focus in particular on the threat assessments that ASIO undertakes in relation to irregular maritime arrivals. Some of the figures that I am going to quote to you are based on evidence given by DIMIA in this committee the day before yesterday.

As at 30 April 2013, in the period beginning on 24 November 2007, which was the date of the election of the Labor government, to 30 April 2013, which is the last date on which these figures had been assembled, there have been, to Australia, 39,224 irregular maritime arrivals. I am told that there were approximately another 2½ thousand last month. So there have been more than 40,000 irregular maritime arrivals. ASIO has had the task, has it not, of preparing security assessments in relation to each of those irregular arrivals?

Mr Irvine: That is correct. Senator BRANDIS: Rather than me put words in your mouth, can you tell me what the preparation of a security assessment in relation to each IMA involves from ASIO's point of view. Mr Irvine: Four years ago, the policy was that ASIO would conduct what I will call a full and detailed security assessment of every arrival—what we call IMAs, or irregular maritime arrivals. That might have been possible and feasible when you had a very small number of arrivals, but as the number grew it was proving much, much more difficult to give everyone a full assessment. So we then introduced a series of what I will call appropriate risk management measures—I think in 2010, if my memory serves me right—whereby people who received or were on the track to receive a protection visa would be what I will call triaged according to criteria set by ASIO to determine whether they needed to have a full security assessment. That process was introduced, and currently ASIO is providing a full security assessment for somewhere between 10 and 15 per cent of people who are on track to get a protection visa. It was decided to do it that way partly because of the resourcing

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problem, partly to make the process more efficient and to speed it up, rather than having people who were on track and did not necessarily present any serious security indicators having to wait around forever. In more recent times that load has increased, as you can see by the number of people who have come in. In recognition of that the government has increased the funding available to ASIO to assist us to meet that increased load. That is one set, if you like, of security checking issues. Perhaps it is easier if I explain what the current situation is in this way.

When a person comes and the Department of Immigration and Citizenship would like to or feels it appropriate to release those people into what is called community detention ASIO is asked to provide a very brief assessment, which essentially says, 'Is there anything in your holdings or anything you know about this person that would immediately preclude that person going into community detention and not being held in some of the more customer deal detention facilities?' That is one practice. The next stage in the process is that, if a person is on track to be given what is called the 1A-met status—that is, they have been adjudged by the appropriate people in the immigration machinery to have qualified for a protection visa—we look at those people through that triaging process that I mentioned to you. Out of that comes about 10 or 15 per cent who will then proceed to what is essentially a full investigation.

Senator BRANDIS: Ten to 15 per cent? Mr Irvine: Yes, it varies. That figure can go up and down. Senator BRANDIS: Just pausing there, please, Mr Irvine. Before, under the pressure of the very large increase in the influx of IMAs, you decided to change the way in which you undertook these assessments and introduced what you call the triaging process, it would have been 100 per cent, wouldn't it? In the days when we had a few dozen boat people a year— Mr Irvine: Yes, and it was up until about four or five years ago. Senator BRANDIS: Can you tell me with a little bit more specificity when the procedure was changed? Mr Irvine: To give you precise timing, I would have to take that on notice. Senator BRANDIS: It was about four or five years ago? Mr Irvine: 2010 sticks in my mind for one set of decisions. I would need to go back and check on the other one. Senator BRANDIS: So as well as you can remember it was in about 2010 in response to the sharp increase in the number of IMAs that ASIO moved from a system in which 100 per cent of arrivals were threat-assessed to watch you called the triaging system, under which, at the moment, between 10 and 15 per cent are the subject of a level of assessment that all of them used to receive? Mr Irvine: Roughly I think that is correct. Senator BRANDIS: Okay, go on. Mr Irvine: The triaging process, as I say, then produces about 10 to 15 per cent. Up until this year, for example, it has meant that we have conducted a bit over 3,000 full assessments. Senator BRANDIS: This calendar year so far or this financial year?

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Mr Irvine: This financial year: from 1 July to 30 April. In the previous financial year it was about 4,700. If you like, I can give you those figures. In 2009-10 it was 2,800—these are rough figures. In 2010-11 it was 3,500. In 2011-12 it was 4,700.

Senator BRANDIS: So there were 4,700 in the last full financial year. These are rounded figures, are they? Mr Irvine: They are rounded figures. I can give you the exact figures, if you wish.

Senator BRANDIS: These are for the 10 months from 1 July to 30 April? Mr Irvine: Yes. Senator BRANDIS: Sorry, were you going to continue to describe the process, or have you finished? Mr Irvine: That is the process that you asked for. Senator BRANDIS: This is the evidence that came out on Tuesday. As of Tuesday this week, or the most recent figures that DIAC officials could give us, there were 10,327 IMAs on bridging visa E; there were 11,549 IMAs in detention; there were 713 in offshore processing centres; and as at Tuesday afternoon there had been 3,061 arrivals so far in May. So there were 3,061 arrivals in 28 days. It is the case, it isn't it, at least this was the evidence from DIAC, that none of those people—that is, bridging visa E IMAs, offshore processing centre IMAs, the May arrivals and according to DIAC it least, 11,549 people in detention— had not received an ASIO threat assessment. Can you confirm those figures, please? That is what Mr Bowles from DIAC told the committee. Mr Irvine: We have got to be very careful here with the old apples and onions. If the people have been released into community detention—I am working on your figures, Senator— Senator BRANDIS: Yes. Mr Irvine: If it is people who have been released or put into community detention—that is, detention within the community on a bridging visa—then it is likely that those people will have received the initial community detention check. Senator BRANDIS: That is the triage process? Mr Irvine: No. That is the process that is the very, very light touch— Senator BRANDIS: The 'light touch'? It is funny that you should say that, because that is exactly what Mr Moorhouse described it as—a 'lighter touch'. So the 'light touch' assessment. All right. Mr Irvine: They would have had what I would call a light or preliminary assessment purely on the basis of whether we had any information that would prevent those people going into community detention. So they have, in terms of your question, at least received some form of ASIO assessment. Of those who are still in detention and those who are in offshore processing and those who have arrived just recently one can expect that, if they are moved into community detention at some point, then we will have done that short assessment—light, call it what you will—on them. For those who are in detention and are likely to remain there, they will not become, can I call it a 'customer' for further ASIO attention until such time as they have been through the immigration processes for determination of refugee status.

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Senator BRANDIS: It was you, not me, Mr Irvine, who used the term 'light touch' assessment. Does the 10 to 15 per cent of IMAs who are assessed by ASIO include the light touch assessments?

Mr Irvine: From time to time, and perhaps increasingly, it will include people who have been released into the community awaiting their refugee status determination processes. Senator BRANDIS: Again, focusing on this 10 to 15 per cent, and I understand it fluctuates which is why you have given us the range, the 10 to 15 per cent of people who are the subject of some ASIO assessment include those who get the light touch assessment. Is that right?

Mr Irvine: Could you say that again, Senator, sorry. Senator BRANDIS: The 10 to 15 per cent of IMAs who get some ASIO assessment include those who get the light touch assessment. Mr Irvine: All IMAs who are released into detention called 'light touch' are assessed against our immediate holdings.

Senator BRANDIS: What does that mean? Mr Irvine: We check them against our own holdings about people. Senator BRANDIS: I am sorry, I do not quite know what the word 'holdings' mean in this context. Mr Irvine: It is information we have about those people; have they come to attention before in some form or another. They go into community detention on a community detention assessment. It is a fact that a number of those people will subsequently be given an adverse security assessment against the criteria that we have for providing a full protection visa. Senator BRANDIS: In what percentage of cases would that occur? Of all IMAs, of all the more than 40,000 IMAs that have come into Australia under the Labor government, in what percentage of cases would that occur? Mr Irvine: Very low. Senator BRANDIS: Below one per cent? Mr Irvine: Who receive an adverse security assessment? Senator BRANDIS: No, who receive a full threat assessment process. Mr Irvine: At the moment about 10 to 15 per cent. Senator BRANDIS: Receive the full threat assessment process? Mr Irvine: Yes. Senator BRANDIS: Okay, go on. I thought I understood to say before, but perhaps we are cross purposes, that the 10 to 15 per cent included those who just received the light touch assessment. Mr Irvine: Anyone who goes into community detention gets an ASIO assessment. A second ASIO assessment is done when those people in community detention, or still held in detention, or assessed somewhere else go through the triaging process when they are declared to be, or on the track to be, 1A met. Most of them in fact will probably have been in community detention.

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Senator BRANDIS: If it is 10 to 15 per cent of 42,285, which was the number as of Thursday afternoon, that means between 4,000 and 6,000 have received the full assessment and more than 35,000 have not.

Mr Irvine: My figures say that between 2010-11 and the present about 11,000 people have received the full assessment. Senator BRANDIS: Sorry, could you say that figure again, please?

Mr Irvine: About 11,000 people have received the full assessment over a three-year period. Senator BRANDIS: If that 11,000 is right that is about 25 per cent.

Mr Irvine: It is much higher. Senator BRANDIS: But in the early part of the period that I have taken—that is, the period beginning with the election of the Labor government in November 2007—in the first year, when the Howard government policies were still in place, there was a negligible number of arrivals. The escalating upward spiral in the number of IMAs has coincided with the period of your moving from the full threat assessment to the triage system. Mr Irvine: Yes. Senator BRANDIS: Obviously, we used to assess everyone who came in and now we assess 10 per cent to 15 per cent of those who come in. We have had 42,285 since the election of Mr Rudd and last Thursday and over that period you have assessed about 11,000, so that is a quarter. At the moment, you are assessing between 10 per cent and 15 per cent, so the proportion being assessed has fallen. The numbers are going up and the proportion being assessed is going down. That must create a greater risk that something is going to be missed, mustn't it? As a matter of logic, it must. Mr Irvine: Except that I would also say that in reducing the percentage of people who go through the full assessment we use some pretty rigorous risk assessment criteria to determine based on a whole series of indicators that I will not go into who should receive the additional assessment. Senator BRANDIS: I understand that, Mr Irvine. But these are probabilistic judgments. Mr Irvine: Yes. Senator BRANDIS: If you give the full assessment to 100 per cent of people then you can be sure that 100 per cent of people are going to get the full assessment ex hypothesi. Mr Irvine: Yes. Senator BRANDIS: If you apply a test or a series of criteria to 100 per cent of people— and this is the triage system—to try and identify the most potentially dangerous IMAs to reduce the number who get a full assessment to between 10 per cent and 15 per cent, which is what it is now, then there is a risk of indeterminate amount that somebody is going to slip through because the criteria are not a perfect system, are they? Mr Irvine: If you can streamline and make your risk management processes more efficient and more effective, and we believe that we have, then I do not think that it is quite fair just to apply a simply statistical comparison.

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Senator BRANDIS: But with respect that is what you are doing. I mean, 100 per cent of people used to get the full threat assessment. Today, 10 per cent to 15 per cent of people who do. And you winnow out those 10 per cent to 15 per cent of people, the subclass, by applying a series of tests to the whole of the class to identify the most at risk at 10 per cent to 15 per cent. But there is no guarantee, is there, that you are not going to miss someone?

Mr Irvine: When we did 100 per cent, we probably did 85 full assessments that we did not need to do out of every 100. Senator BRANDIS: Sure. But that gave you the peace of mind of knowing that nobody was missed.

Mr Irvine: Yes, but— Senator BRANDIS: And the Australian people do not have that peace of mind because you only do the risk assessment of the 10 per cent to 15 per cent who you think are most likely to be dangerous people. Mr Irvine: In the circumstances, I would submit that that triaging process is the most effective and efficient way of enabling the greatest resources to be applied to the greatest potential risk. Senator BRANDIS: Sure. I am sure that, given the reduced resources that the government has given you and the vastly greatly number of boat people who come to Australia today, you are applying those resources to that problem in the most rational and efficient way. But nevertheless it is a different system. It is a system that does not have the assurance that every irregular maritime arrival will get the full threat assessment, isn't it? Mr Irvine: That stands to reason. Senator BRANDIS: Yes, it does. Mr Irvine: But the issue is by how much are we altering the risk? My submission to you is that the system that we have adopted does apply the greatest resources to the greatest probability of risk. Senator BRANDIS: I do not have any issue with you. I am sure that you and your officials worry about this. Mr Irvine: We do. Senator BRANDIS: I have complete confidence that you have applied your resources in the most efficient and rational way so as to maximise the chances of identifying every dangerous individual. But it is nevertheless a matter of risks and probabilities, isn't it? Mr Irvine: It is always a matter of risks and probabilities. Senator BRANDIS: Except it was not a matter of risks and probabilities when you could give the full and thorough threat assessment to every irregular maritime arrival, as you used to be able to do before 2010. That is right, isn't it? Mr Irvine: In absolute terms, if you are going to give 100 per cent treatment, then you have one level of risk. But with a properly managed risk management system you can reduce the risk very considerably by focusing on the real problems. Senator BRANDIS: Of course. And in fact people have slipped through the net, haven't they? Dangerous people have slipped through the net.

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Mr Irvine: There have been a number people who for one reason or another we have had to, as it were, recall from community detention in the last three or four years, yes. Senator BRANDIS: Indeed. That makes my point. I am now going to go to an area on which I received a confidential briefing from you a couple of months ago but which has been laid out in the open this afternoon by the Australian Federal Police and so I am not going to trespass upon anything you told me in the confidential briefing. I am merely going to put to you what has been volunteered in this open forum by the Australian Federal Police. You are aware, Mr Irvine, of a man who arrived in Australia as an IMA in May 2012 who had on 18 August 1999 been convicted in absentia by an Egyptian court of terrorism offences, aren't you?

Mr Irvine: I am aware of that, yes. Senator BRANDIS: The evidence from Mr Negus and his deputy commissioner, which I assume you are also aware of, is that the terrorist offences for which that man was convicted in Egypt were of two categories: first of all, belonging to a terrorist organisation, namely the Egyptian Islamic Jihad; and secondly engaging in a number of terrorist acts, including, according to Mr Negus and his deputy commissioner, premeditated murder, destruction of property, unlawful possession of firearms, unlawful possession of explosives and forgery. Are you aware of that, too, Mr Irvine? Mr Irvine: In broad terms, yes. Senator BRANDIS: I take it that you are aware that that man was sent from Christmas Island—and this was the evidence from Mr Negus—to the Inverbrackie detention centre in the Adelaide Hills on 9 May 2012. In any event, whether you are aware of it or not, that is the evidence that was lately given. Mr Irvine: What the date? Senator BRANDIS: It was 9 May 2012. Mr Irvine: I am not sure about that date. Senator BRANDIS: All right. To give you a full account of the evidence from Mr Negus and his officers, they told the committee a couple of hours ago that this man came to the attention of the Australian Federal Police as possibly being one and the same as a man who was the subject of an Interpol red notice issued on 9 October 2001 in relation to the terrorist crimes that I have just mentioned to you. Mr Negus's evidence was that on 14 November 2012 the Australian Federal Police confirmed to DIAC that the man concerned, whom in the meantime they had investigated, was in fact the self-same man as the one convicted of the terrorist crimes by the Egyptian court on 18 August 1999 and the subject of the Interpol red notice dated 9 October 2001 and that for a reason that of course the Australian Federal Police cannot explain and nor would I ask you to explain that man was left in the Inverbrackie detention centre until 17 April 2013, when he was moved to a more secure facility in Sydney, where he still is. That was the evidence. Mr Irvine, ASIO missed that man, didn't they? Mr Irvine: Initially, there was a clerical or some other mistake that we subsequently identified that meant when he was referred to us in early July— Senator BRANDIS: Of 2012? Mr Irvine: of 2012 we did in fact clear him for community detention.

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Senator BRANDIS: So you cleared him for community detention in July 2012. Mr Irvine: Yes, on the basis that we thought either that he was someone else or that he was not registered in what I will call our holdings again. We also checked subsequently for this name, which was on an alert list, and were told by the country that put him on the alert list that it was not the same person. They subsequently came back and said that it was the same person. We looked at the case again. Senator BRANDIS: On what date did the country concerned—I take it that this is Egypt—come back to you and confirm— Mr Irvine: I will not confirm the country. Senator BRANDIS: That is fine. Mr Irvine: It was on 25 August. Senator BRANDIS: 25 August. Mr Irvine: Yes. Senator BRANDIS: That was when you, on the basis of the advice to which you have just referred, reversed your earlier assessment that he was not the relevant— Mr Irvine: We reversed our earlier assessment. The decision was reversed within a matter of weeks. May I stress that at no stage, as it turns out, was that person not in detention. Senator BRANDIS: But he was in the Inverbrackie facility, with whatever is the relevant level of security associated with the Inverbrackie facility. Mr Irvine: As I understand it, yes. Senator BRANDIS: When ASIO reversed its earlier clearance of this terrorist for community detention on 25 August, having discovered the error— Mr Irvine: Actually, it was a couple of days later that we took the formal action. Senator BRANDIS: What was the date? Let's get these dates straight. Mr Irvine: 30 August, I think. Senator BRANDIS: Who did you tell? Mr Irvine: We advised DIAC. DIAC asked us for the assessment; we advised them. Senator BRANDIS: But there is something I am having difficulty in understanding at this point. If it had come to ASIO's attention on or before 30 August that this man should not have been cleared for community detention and that he was indeed the terrorist then I do not understand why it took until 14 November for the Australian Federal Police to arrive at the same conclusion. Their evidence is finished. I cannot ask Commissioner Negus now. But there was a period, on your evidence, of 2½ months between 30 August 2012, when ASIO had decided that the man was a terrorist, and 14 November 2012, when the Australian Federal police made the same decision, even though the matter had been referred to them, according to Mr Negus, on 26 June. Did you communicate your conclusion of 30 August to the Australian Federal Police? Mr Irvine: I do not know that. I cannot answer that. Senator BRANDIS: Can you take that on notice for me, Mr Irvine.

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Mr Irvine: Yes, I would have to take that on notice. It would not normally be our practice on a case referred to us by the Department of Immigration and Citizenship to automatically refer it to the Australian Federal Police as well, and I do not see any evidence that we have done so.

Senator BRANDIS: I am speculating now, but it may very well be that DIAC referred it to both you and the Australian Federal Police and that, working separately and independently of each other, you followed a process of investigation and that yours finished a little earlier in time than the Australian Federal Police.

Mr Irvine: I cannot really speak for the other agencies there. Senator BRANDIS: No, I understand that. What was the date when you cleared the man for community detention? Mr Irvine: About 5 July.

Senator BRANDIS: That was not a full threat assessment. That was a light touch assessment. Mr Irvine: No, that was the testing against the holdings.

Senator BRANDIS: You said a clerical error had been committed. Did that clerical error consist of failing to test the man's identity against Interpol red notices? Mr Irvine: Or it was potentially an incorrect test of identity.

Senator BRANDIS: Well, everybody makes mistakes, of course. Mr Irvine: It is written down here as a processing error, but that could cover a multitude of reasons, which our people have looked at; they have taken appropriate measures to make sure that that sort of thing does not happen again. Senator BRANDIS: Mr Irvine, was it an ASIO officer who made the processing error, or was this a case where the assessment against holdings or the light-touch assessment had been contracted out, as it were, by ASIO to another agency? Mr Irvine: No, it would have been an ASIO officer. Senator BRANDIS: Thank you. Senator FURNER: Mr Irvine, I want to follow up on the funding being discussed, and correct me if I am wrong. I understand that, since coming to office in 2007, this government has increased funding for ASIO from $291 million for 2007-08 to $369 million in 2013-14. By my calculations, that represents an increase of 27 per cent since 2007-08. Mr Irvine: That is correct. Senator FURNER: Also, over the same period, the average staffing level of ASIO has increased from 1,349 to 1,778, representing a 32 per cent increase. Mr Irvine: Within one or two staff members, those figures are essentially correct. Senator FURNER: Thank you. Senator LUDLAM: What would the funding and staffing allocations for the agency look like if we compared your budget with the financial year 2001? Mr Irvine: I would have to get that figure; I do not have that figure for you— Senator LUDLAM: Is it in the magnitude of a four- or fivefold expansion?

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Mr Irvine: I have figures back to 2005-06. Senator LUDLAM: That will do for a baseline for the purposes of the discussion. Mr Irvine: It was roughly $175 million at that time. Senator LUDLAM: According to the discussion you just had with Senator Brandis, you are up to $328 million now. Is that right?

Mr Irvine: For 2012-13 it is $337 million. Senator LUDLAM: It has roughly doubled. How about staff? Ms Hartland: I only have the staffing figures back to 2007, but it was around 1,300 at that stage. Senator LUDLAM: I do not wish to detain us here too much further, so I wonder if you would provide us with some figures on notice for 2001, because I suspect we will find that the order of magnitude increase is quite severely higher come 12 years later. Mr Irvine: I am absolutely certain that that is the case, and it is entirely explicable in terms of the need of governments of the day to respond to a new and very substantial threat. Senator LUDLAM: For the purposes of this discussion about resourcing, which Senator Brandis has pursued fairly exhaustively, and remaining with budget and staffing at the moment, do the resources of ASIO compare with the height of the Cold War, say, using 1983 as an example? Mr Irvine: Making all sorts of allowances for inflation and everything else— Senator LUDLAM: Staffing numbers do not inflate. Mr Irvine: I imagine that they are substantially greater, but you have to remember that in 1983 ASIO was essentially a small, single-issue organisation. It was not dealing with threats to the lives and safety of Australians that subsequently emerged in the late 1990s and in the first decade of this century. Senator LUDLAM: You would not concur that the national security threat to Australia at the height of a Cold War nuclear arms stand-off between two superpowers, in which Australia was intricately enmeshed, was much higher then than it is now? Mr Irvine: No, I do not subscribe to that view at all. The nature of threats changes. During the Cold War there was one form of security threat dealt with by ASIO, as opposed to all of the rest of government, which essentially related to espionage and sabotage. Today we have similar levels of concern about espionage and sabotage as we had then— details will differ, but in principle we have similar concerns—but today also we now have very substantial concerns about terrorism, which, in a sense, represents a more direct threat to individual Australians and the lives of Australians than some of the wider issues of the Cold War which were being managed in a whole variety of other ways. Senator LUDLAM: I think this would be a conversation worth exploring in a bit more detail later, because I do not necessarily accept your position there. I will move on. I am just wondering, Mr Irvine, if there is a reason why you did not mention the issue of the apparent or the alleged lifting of the floor plans for your new building in your opening—or perhaps you did and I missed it.

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Mr Irvine: On that subject, the Prime Minister and the Attorney have already made it very, very clear that we are not going to comment on intelligence matters and operational intelligence matters, neither to confirm nor deny, for all the well-known reasons.

Senator LUDLAM: We have had these sorts of exchanges a fair number of times since you first started coming to these. Mr Irvine: Yes.

Senator LUDLAM: Mr Irvine, this was screened on Four Corners. It would appear, then, that the only voice that has really been absent in the debate since this was broadcast to the whole country is yours.

Mr Irvine: That is, in one sense, a frustrating element of my job, but it is a necessary element of my job, that we incur all sorts of risks if intelligence operational matters are aired in public. Can I just assure you, though, that I am satisfied that the security of the ASIO building is, and will be, meeting the very, very high standards that are required of a building of that nature.

Senator LUDLAM: Okay. Is it reasonable to say that ASIO's information security protocols and internal procedures are probably among the most stringent of any government agency in the country?

Mr Irvine: Necessarily, yes. Senator LUDLAM: I would have thought so. Mr Irvine: There are a few other agencies as well. Senator LUDLAM: Okay, but they would all be in the Australian intelligence community sort of tier?

Mr Irvine: Mostly. Senator LUDLAM: I would have thought so. Mr Irvine, I believe you are on the record as supporting a national data retention regime in which all Australians' private telecommunications exchanges would be stored for a period of up to two years. Mr Irvine: Our organisation has made submissions to the Joint Parliamentary Committee on Intelligence and Security to that effect, yes. Senator LUDLAM: Okay. If ASIO is not able to keep track of the floor plans of its $600 million building, how can we trust intelligence, security and policing agencies to maintain the records of the entire Australian population for a period of two years? Mr Irvine: That is a very neat way, if I may say so, of trying to get me to comment on an operational intelligence and security matter— Senator LUDLAM: Not at all. Mr Irvine: which I cannot really do. I have given you an assurance that the ASIO building is of the highest security order, and I am confident of that, and I would expect that that confidence should be reflected in the confidence of the Australian public for ASIO to maintain, as it has always maintained, the security of the information it holds, including the security of the information it holds on Australian individuals. Senator LUDLAM: Some of the information that you hold has been broadcast by Four Corners as being allegedly in the hands of Chinese hackers.

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Mr Irvine: And, again, I am not going to comment on that. Senator LUDLAM: Okay. Last night, in a different portfolio session, it was revealed that an agency within the portfolio responsibility of the Attorney-General is filtering online content from viewing by Australians. Is ASIO that agency? Mr Irvine: Sorry, could you ask that question again, Senator? Senator LUDLAM: I was referred last night, by Senator Conroy, from the communications hearings to this committee because apparently ASIO participated in a meeting on 22 May convened by the broadband department to discuss the use of section 313 notices to block internet content from being viewed in Australia. It was revealed that an agency in this portfolio was also using these notices to block internet content. Is ASIO that agency or not? Mr Irvine: I am not going to confirm a particular incident, again under our 'confirm and deny' policy, but it is open to ASIO to use, or to seek under ministerial direction to use, section 313. If you asked me whether or under what conditions I would seek action under section 313, my immediate response would be that it would be something that was a significant and probably relatively immediate threat to security and lives. Senator LUDLAM: To me that does not sound like a reason to block content. We had a bit of explanation, which was quite helpful, from the Federal Police this morning, where they were explaining how they used to use these notices to knock out sites that were firing malware into, for example— Mr Irvine: I think, given ASIO's responsibilities, you could draw your conclusions that, if we were to use it, the immediate example that would come to mind would be an extreme terrorist site that was—well, I believe it would have to be exercising a very significant and immediate influence. Senator LUDLAM: A proximate threat. Mr Irvine: The other issue about blocking in the terrorist area is: what do you actually block? Senator LUDLAM: I could put that question to you. We could have this discussion all day. If you want to, in about 15 minutes, or probably 15 seconds, online you could find the manufacturing instructions for putting a nuclear weapon together. Mr Irvine: Yes. Senator LUDLAM: There is a lot of material online that arguably breaks various forms of local and international law. Is ASIO blocking that kind of content to Australian users? Mr Irvine: The answer is no. But, if we felt a need to, section 313 is available to us. Senator LUDLAM: That is certainly my reading of the definitions under the TIA Act as well. I believe you might have just breached your longstanding commitment to neither confirm nor deny anything. Have you just denied that ASIO has used or is using these notices to block content? Mr Irvine: I am not confirming or denying that. Senator LUDLAM: You came awfully close to it just then. I will leave it there. CHAIR: Senator Furner, we will go to you.

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Senator FURNER: How long have you been in the position of DG with ASIO? Mr Irvine: A bit over four years. Senator FURNER: During that time, what have been the occasions and the convention of the opposition seeking briefings from ASIO? Mr Irvine: The ASIO Act makes provision for the briefing of the Leader of the Opposition. For convenience and for other reasons, I have briefed the opposition in the persona of the shadow Attorney-General more frequently. Senator FURNER: Obviously, if the convention is to generally brief the Leader of the Opposition, the leader may delegate that to the shadow or— Mr Irvine: I do not think that that is specifically applied in the act, but it is up to the director-general to brief as he sees fit anyway. We have sort of merged those to ensure that, where the opposition needs to have information about a particular security issue, then as director-general I would be prepared to do so. Senator FURNER: In the last four years in your position of director-general, how many times have you briefed the Leader of the Opposition? Mr Irvine: I think once. Senator FURNER: Just once? Mr Irvine: There have been a couple of other occasions where a briefing has been requested but has not been possible for timing and other reasons. But, according to my records—you might need to check these against the records of the Leader of the Opposition— certainly once. Information has been provided on another occasion. When I brief the shadow, I am assuming that, if necessary, he will tell the Leader of the Opposition. Senator FURNER: I am, through my role as chair of the Defence subcommittee, familiar with the processes involved in receiving secret briefing. I am wondering what the process is in terms of the level of classification in briefings with ASIO—in respect of persons receiving those briefings. Mr Irvine: Normally I would inform the person of the level of the briefing—the classification of the briefing. Senator FURNER: For example, the briefing which was provided to the opposition the other day—what was the level of that classification? Mr Irvine: Let me just say that it was classified. Elements of it, obviously, were classified. Senator FURNER: Do you think it is important that, when briefings are identified as being classified, they should not be used for political purposes? Mr Irvine: I would simply say that the government follows a policy of not commenting on operational matters. But I do not want to get into any sort of discussion on recent events in that sense. I do not think that is appropriate for me as a public servant. Senator FURNER: I understand that. I am just trying to establish the convention. As I indicated, in my experience as chair of the defence subcommittee, when we receive a secret briefing from the government or from Defence—members from both the government and opposition—when we walk out of that room, the contents of those briefings stay in that room.

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Mr Irvine: Yes. Senator FURNER: That is your understanding of the practice or the convention—how it should apply? Mr Irvine: That is how the convention applies.

Senator LUDLAM: I have one follow-up. Mr Irvine, that courtesy that Senator Furner has been teasing out relating to briefing the Leader of the Opposition is not extended to the leaders of minor parties or other cross-benchers?

Mr Irvine: It is not so stipulated in the act. But I do recall there has been an occasion where we briefed people who were not in the opposition or the government. Senator LUDLAM: ASIO has briefed me on occasions. But I am just checking whether the briefings which are in your act are of a different security status from those which, from time to time, are extended to cross-benchers or other senators.

Mr Irvine: It would depend on the issue every time. Senator LUDLAM: I may be going dangerously close here to asking you for an interpretation. But is there a reason why it would seem appropriate to brief one opposition party but to be precluded from briefing another? Mr Irvine: I brief on request. I have not received a lot of requests. Whether we would be able to do it is another matter. Senator LUDLAM: That might be a bit of a chicken-and-egg situation. Mr Irvine: I am not issuing an invitation. Senator LUDLAM: Your offer may well be accepted. I will leave it there. Senator PARRY: When was the provision placed in the act for briefing the Leader of the Opposition? Mr Irvine: I cannot tell you exactly. Senator PARRY: Has it been there for decades? Mr Irvine: The act dates from 1979, so I am assuming it was in the act right from the start. That would be logical given the recommendations that Mr Justice Hope made at the time prior to the act being introduced. Senator PARRY: Are you aware whether or not it was the practice for you and your predecessors to brief the shadow Attorney-General in previous administrations? Mr Irvine: I am not aware of that, no. Senator PARRY: The shadow Attorney-General, being the first law officer or potentially the alternate first law officer would be an appropriate person to brief matters pertaining to ASIO? Mr Irvine: And the Leader of the Opposition. Senator PARRY: And by extension—I think you intimated this is in your earlier answer to Senator Furner—you would assume that the shadow Attorney-General would brief the Leader of the Opposition as a matter of course when necessary and that would be allowable and expected? Mr Irvine: Yes.

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Senator PARRY: I am aware that the Leader of the Opposition and the shadow Attorney-General meet for half an hour every morning of every parliamentary sitting day so I imagine there would be plenty of scope to have that briefing.

CHAIR: Mr Irvine and your colleagues, thank you very much for your time at estimates this afternoon. We are going to move on to the Insolvency and Trustee Service Australia. Insolvency and Trustee Service Australia [17:18]

CHAIR: Ms Ingram, do you have an opening statement? Ms Ingram: No, I do not. Senator WILLIAMS: I want to raise an issue but I want to be careful how I raise it—if you know what I mean. If ITSA examines the affairs of a bankrupt and believes there are areas of concern that could warrant police investigation, are those matters referred to police or law enforcement agencies? Ms Ingram: Generally we would have to prepare a brief of evidence before we would give the matter to the DPP. If it was a police matter, say fraud or a breach of other than the bankruptcy act, we would refer it to the police. It really depends on the facts of the case. Senator WILLIAMS: If there was clear evidence of criminal wrongdoing—I am not mentioning anyone here—and you thought that evidence was clear and it was obvious, would you either send a brief to the DPP or inform the police? Ms Ingram: If it was a breach of the Bankruptcy Act we would prepare a brief of evidence and refer it. If it was fraud or a breach of the Crimes Act or something else, or it was a state matter, we would refer it to the appropriate authorities. Senator WILLIAMS: To quote the newspaper at Grafton, it says this is public knowledge: Bankrupt Yamba boatbuilder George Edward Lousick has elected to face two charges levelled against him in the District Court for deception …

Are you familiar with that case? Ms Ingram: I do not have the latest details with me. Senator WILLIAMS: I did raise the issue with you some time back about Mr Lousick. Ms Ingram: I do recall— Senator WILLIAMS: As I said, it is in the public arena now it has been out in the

newspapers and so on. 'Bankrupt boat builder to appear at District Court. Mr Lousick did not appear in person at Grafton Court. Obtaining money by deception and dishonesty, obtaining property by deception'—in the higher court. I raised this with you some time ago, the matter involving this particular bloke, the boatbuilder in Yamba. His business is called Japolo Boats and Others. You were investigating this matter, I believe.

Ms Ingram: I do recall that we looked into the matter and the issues you had raised. I do not have the brief with me on that matter. I would have to take it on notice if you want an update on that matter.

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Senator WILLIAMS: That would be good, if you could give me an update on that, please, because the Grafton Daily Examiner of 11 April reports that Mr Lousick is now facing two charges. You do not know whether you have a reference on this?

Ms Ingram: Do you mean we refer to— Senator WILLIAMS: You were investigating this particular business. I am wondering whether or not you made a referral to— Ms Ingram: I would have to take that on notice.

Senator WILLIAMS: Because there is $1 million lost here and I believe the individual is back in North Queensland. My particular interest is that a good friend of mine has lost a substantial amount of money. So this would just take its course through the courts. If that investigation is still ongoing, if you are still doing it, my chief of staff has been in contact with your office. Could you give us an update? That would be very good.

Ms Ingram: Certainly, Senator. Office of the Director of Public Prosecutions [17:30] CHAIR: Mr Bromwich, good afternoon and welcome. Do you have an opening statement?

Mr Bromwich: No, I do not. CHAIR: Senator Pratt has questions. Senator PRATT: Mr Bromwich, hello. Your organisation is clearly responsible for prosecuting alleged offences against Commonwealth law, from minor regulatory infringements through to quite serious terrorism charges—and I know that is a very broad remit. In your opinion of all the types of offences your organisation prosecutes, which are the most important? Mr Bromwich: I do not think it is really capable of being described in terms of one particular area being inherently more important than another. Different areas have a different importance for different parts of government and the community. Senator PRATT: My questioning today is really in relation to the prosecution policy of the Commonwealth. I note that that policy states: The Policy is a public document based on the principles of fairness, openness, consistency, accountability and efficiency that the Office of the Director of Public Prosecutions (DPP) seeks to apply in prosecuting offences against the laws of the Commonwealth.

Mr Bromwich: That is correct. Senator PRATT: Indeed, those are the attributes that are supposed to be applied. My question is about the prosecution of Mr Peter Slipper. The offence that he is charged with concerns a sum of money that would usually be acquitted internally in the department of finance, according to the Minchin protocol. Mr Bromwich: The Minchin protocol, as I understand it, is a protocol within the department of finance. This matter came to my office from the Australian Federal Police and we assessed the brief that came from the Australian Federal Police in the way that we assess every other brief of evidence that comes to the office.

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Senator PRATT: When Sophie Mirabella's staffer had a $906 cab charge, that was dealt with under the Minchin protocol. Is that because it was not referred to you by the AFP? Mr Bromwich: We are not an investigative agency. We do not carry out any form of investigation. We advise, of course, from time to time on investigations, but we deal with briefs of evidence that come to us and unless a brief of evidence comes to us there is nothing for us to assess.

Senator PRATT: What is the decision based on for someone to be dealt with under the Minchin protocol or by the Department of Public Prosecutions or the AFP. Mr Bromwich: We have no part to play or no say in relation to that protocol. That is a protocol for, as I understand it and I have read it, dealing with matters within the department of finance in determining whether or not a matter, amongst other things, should or should not be referred to the police. That is the question of how the department determines what it will and will not, for example, and not only that, refer to the Australian Federal Police. It is not something that we have any part to play in.

Senator PRATT: I note your office made a decision not to prosecute former Liberal Party minister Peter Reith or his son on $50,000 worth of private phone calls. Is that because his son thought that use of the card was innocent or within the use of entitlement?

Mr Bromwich: My knowledge of that matter is limited to what I read about it in the press. I was not with the office at the time; I was at the private bar. I would have to take it on notice to look into that. But the prosecution policy of the Commonwealth has, amongst other things, at its core, two questions: sufficiency of evidence and whether or not a prosecution is in the public interest. All cases are assessed against those two criteria. Whether that was a case of sufficiency of evidence or whether there was a public interest test, I could not say in the abstract.

Senator PRATT: That is entirely reasonable. I note that the Minchin protocol provides a process by which someone can argue that they thought that their use of that entitlement was innocent and then repay any debts that they might have incurred. It appears to me that similar behaviours could be treated entirely differently depending on which forum they land before, be that the AFP, the DPP or the department of finance.

Mr Bromwich: I really cannot comment on how the department of finance chooses to administer that protocol. I can only speak about the rigorous and uniform application of the prosecution policy of the Commonwealth in relation to briefs of evidence that come to us.

Senator PRATT: So you cannot comment on whether it is fair or consistent as to whether Mr Reith was afforded an opportunity under the Minchin protocol to resolve that but that Peter Slipper was not?

Mr Bromwich: I cannot comment on a case like that without having knowledge of what example, for example, was available by way of admissible evidence, what it was capable of proving and what other public interest factors were present. I should add, though, that there has been prosecutions on both sides of politics over time. When matters come to us, they are assessed in accordance with the policy not in accordance with something like that protocol.

Senator PRATT: I understand the decision to prosecute over a debt of about $900 worth of cab charges has been made—is that correct?

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Mr Bromwich: Yes, it has. Senator PRATT: My question goes to the efficiency of government. I appreciate the process by which this has landed before you is not something that you can control. But it has been reported as a seven-day criminal trial with 39 witnesses, seven Australian Federal Police and significant legal fees and costs for each party. When you look at value for the taxpayer, it would seem to me to be more efficient to resolve that issue via the Minchin protocol. Clearly, you have outlined that that question was never put before you. Mr Bromwich: The prosecution policy has those two central features. We have not yet reached—and I hope we never reach—the point of making decisions to prosecute on the basis of resources alone, given that the two thresholds that have to be passed is sufficiency of evidence and public interest in prosecuting. Both of those matters were seriously and carefully considered in relation to this matter. Senator PRATT: So I can ask how many barristers from the DPP are working on this matter? Mr Bromwich: There are no in-house barristers working on the matter. Senator PRATT: Does this mean they are contracted to work from outside on it? Mr Bromwich: Amongst the lawyers that we have within the office are legal practitioner lawyers. The greater number are solicitors rather than barristers. So in most cases, any lawyer working on a matter will be a solicitor. Occasionally one of the in-house lawyers happens to be a barrister and we do have some counsel including a senior counsel and one of our officers employed in-house. In this case, the lawyers involved in this matter are solicitors. They are not barristers. Senator PRATT: Are there any private consultants and expert witnesses? Mr Bromwich: I would have to go back and check. I think there is one expert witness. There may be more than one but I recall one. 'Expert witness' is a term that has a fluidity about it because there are people who have a form of expertise which is not the same for example as a scientist or something like that. Senator PRATT: Have the costs of this trial been estimated at all? Mr Bromwich: There will have been some degree of estimation but I do not have any figures of that nature available to me at the moment. There may well have been some sort of estimate done but we do not make decisions ordinarily on the basis of dollars as such. The public interest test is the principal test in relation to resources and resources do have a part to play. That forms part of the public interest component. Senator PRATT: So resources do play part of the part interest component. Mr Bromwich: It is measured. I can find you the paragraph in the policy. But it is rarely a determinative factor. Senator PRATT: What other kinds of costs do you expect to incur? Mr Bromwich: There is the staffing cost. If any witnesses have to be brought from outside of the ACT there would be those costs. I do not recall for the moment, without looking them up, who they are. Senator PRATT: Are you able to provide me with what a total cost might look like?

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Mr Bromwich: We would be able to obtain a figure for that, I imagine, but we would have to take that on notice. Senator PRATT: I understand it was reported in the Financial Review on 24 May that one senior lawyer told paper that a seven-day criminal trial could exceed $150,000 in legal fees and court time.

Mr Bromwich: He might be talking about defence costs rather than prosecution costs. To speak in the abstract like that rather depends on how much out of court time there is and how big and complex the matter is. Sometimes your out of court time can be equivalent to your in court time. Sometimes it can be half, sometimes it can be 10 times more. It depends on the matter. I have prosecuted cases that fit all of those different criteria.

Senator PRATT: How many child pornography offences could the DPP prosecute with that kind of money? Mr Bromwich: Again, if you are talking about the $150,000, that is to somehow suggest that such cases have some almost cookie cutter single figure. They do not. It depends on the size and complexity of the matter, the number of offences, the amount of expert evidence that is required, whether they are defended or not, whether they are dealt with at a local court or more often these days given the indictable offences the dominant offence in the district or county or equivalent courts and so on. Very few of our matters are highly homogenous in their nature to allow that sort of single calculation.

Senator PRATT: So in relation to consistency for those matters that get resolved inside and outside the mentioned protocol, you are essentially saying that that is not a matter for the DPP?

Mr Bromwich: The Minchin protocol as I read it, as I mentioned before, is a process for deciding whether or not something, amongst other things, will be referred for investigation. Senator PRATT: Yes. That is correct.

Mr Bromwich: That point has been passed by the time a brief of evidence was referred to us, and so a determination about whether or not something is going to be referred for investigation—that point has passed.

Senator PRATT: That makes sense, except that it was never put before that protocol. Mr Bromwich: But that is because the matter did not go from the department of finance to the Australian Federal Police. Senator PRATT: Essentially, do you think that means that matters can be resolved in entirely different ways in terms of similar behaviour being resolved one way under the Minchin protocol—for example, to repay a debt and not to behave in such ways again? Or the Minchin protocol might also decide that that is inappropriate and repaying the debt is not appropriate and then it should, at that point, be referred to the AFP. But that was never questioned in this case, was it?

Mr Bromwich: As I said, the Minchin protocol appears to be at least in part directed to whether or not something should or should not be referred to the Australian Federal Police. It is a sterile debate, with respect, senator, to have a debate about whether something should or should not be referred to the Australian Federal Police when they have already investigated it and referred it to us.

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Senator PRATT: The only issue being that when you look at consistency in terms of how things are resolved, someone who makes $50,000 worth of private telephone calls is given the opportunity to resolve it through that protocol. I am not familiar with what it is that Mr Slipper has or has not been accused of doing, but it surprises me greatly that the Minchin protocol was never looked to in order to resolve them, that that opportunity before the department of finance never came up.

Mr Bromwich: But it did not go from the department of finance to the Australian Federal Police. That was not the path by which it went to Australian Federal Police. And any other matter that goes directly to the Australian Federal Police will similarly not go through what is a referral protocol. That is essentially what it is.

Senator PRATT: Yes, okay. I think I understand that now very clearly, Mr Bromwich. But I think it leads me to some concern, given I have just been asking questions in estimates of the department of finance to try and give me some clarity around what is and is not within the use of entitlements when it comes to parliamentary travel. The discussion left me rather more confused than less confused in terms of what use of entitlement might be within or might be without reasonable use. So I can understand that, should questions be raised with the department, if someone is seen using their entitlement in what may be an appropriate or an inappropriate way, those questions would come up before the department of finance. But it would leave me with some displeasure if I am unclear about whether catching a Comcar, as it has just appeared to go to dinner, is within or without entitlement and that that could be a matter for the Federal Police.

Mr Bromwich: All I can say is that the case is before the courts. It is best that I do not comment on the content of a case that is before the courts. However, I do not believe the case is of that character.

Senator PRATT: Thank you. CHAIR: That is all we have got then I think, Mr Bromwich. There is no one else due to come? No? Thanks very much. Mr Bromwich: The question we had effectively on notice is as to the legal costs of anticipated legal costs of the prosecution.

Senator PRATT: Yes, that is correct. Thank you. CHAIR: I am going to ask representatives from CrimTrac to come on up. CrimTrac Agency [17:51] CHAIR: Good evening, Mr Smith. Do you have an opening statement at all? Mr Smith: No, I don't. CHAIR: Well we will start with questions from Senator Humphries then. Senator HUMPHRIES: The first thing I want to take up with CrimTrac is the extraordinary lateness of the answers we have had to questions lodged in the February estimates. They arrived in my office at 2.30 this afternoon. Some of these questions are not complicated, such as: when was Mr Rankin appointed to the chair of the portfolio board? When did he cease to be a member of the portfolio board? They are not hard questions to answer. Can you offer any plausible reasons why we are treated in this contemptuous way by

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having answers provided so late to this committee on matters that you know are of some concern to the committee? Mr Smith: I can only apologise for the lateness of them. Some of those questions required some significant legal advice and then they were submitted through the department.

Senator HUMPHRIES: If some required legal advice I can understand that you might want to get that advice, but the length of Mr Rankin's appointment cannot have required legal advice: when did he start and when did he finish? Why couldn't that information have been provided beforehand? You did not have to give it all to us at the one time. Plenty of departments and agencies give answers as they come to hand.

Mr Smith: I can only apologise. They were taken together as a package. Senator HUMPHRIES: Will you take on notice that in future if multiple questions are asked of your agency and you have some answers to provide the answers when they are available to pass up the line and not wait for them all to come at the same time, because if the army marches at the pace of its slowest soldier they will all come at the very last minute, won't they? Mr Smith: That is noted, Senator. Senator HUMPHRIES: We asked questions in the February hearings about the investigation that was underway into issues that apparently touched on your conduct that the Attorney-General's Department was overseeing. When I referred in the hearing to an investigation into your conduct you said: There was not an investigation into my conduct.

When I asked what language was appropriate to use you said: Just the connotation around 'investigation' would sort of suggest that there had been a code of conduct matter commenced against me, and that was not the case.

When that question was ultimately taken on notice by Ms Kelly the answer came back: A number of issues were raised with the CrimTrac board by the CEO. A code of conduct investigation was auspiced by AGD which considered conflict of interest, procurement irregularities and bullying and harassment.

So do I take it that in fact it is the view of the Attorney-General's Department—if not of you, Mr Smith—that indeed this was an investigation and it was an investigation into conduct matters or code of conduct matters?

Mr Smith: Is that question being addressed to me? Senator HUMPHRIES: Yes. You quibble with the term 'investigation'. Do you agree that it was an investigation after all? Mr Smith: There was no investigation of that nature into my conduct at all.

Senator HUMPHRIES: Then I will ask the question of the department. I assume it was the department that answered my question, No. 30, asked on 12 February. I asked about what was the appropriate description of what was being conducted and auspiced by AGD and you have come back to say that a code of conduct investigation was auspiced by AGD. Was that a loose term, or do you stand by the term 'investigation'?

Mr Wilkins: I think that that was probably a loose term. I do not really care whether we call it an investigation or not.

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Senator HUMPHRIES: It was an issue that was in front of the committee and was being debated in the committee, so the language I thought would have been— Mr Wilkins: You might be right. I would have described it as an investigation; I would not have been as precious as Mr Smith is about the use of the term.

Senator HUMPHRIES: If it is an investigation and it is into matters of conduct, can we know a bit about this investigation? Has it been completed? What were its findings? What are the consequences of the investigation?

Mr Wilkins: I am just trying to get some advice, first of all, about who is entitled to release the report, if anybody is, and whether the report can be released. It has been released to the people into whose conduct there was an investigation. I think that there are probably restrictions on how far they could go public because it does deal with a lot of people's private affairs, evidence, reputations et cetera.

Senator HUMPHRIES: Why would the department be investigating people's private affairs— Mr Wilkins: We did not.

Senator HUMPHRIES: if their private affairs were touched on in an investigation into conduct of a CEO? We are not talking about his conduct at the beach or his conduct in private, we are talking about his conduct as CEO of this organisation, aren't we?

Mr Wilkins: Let me just say, it is their privacy. It concerns various individuals. Senator HUMPHRIES: Maybe so, but this is an investigation, presumably conducted at public expense, using public money— Mr Wilkins: I am perfectly happy to release it publicly. I am just saying that I would like to take advice as to whether that is appropriate, whether there is anything that restricts me in terms of the Australian Public Sector Management Act, and whether there is anything in the Privacy Act that prevents me from doing that. That is what I want to know. And I want to know whether it is mine to release as well, because I auspiced the investigation, that is true.

Senator HUMPHRIES: Whose could it be to release, if not yours? Mr Wilkins: It could be a matter for CrimTrac. It may be that I need the concurrence of some of the people who were involved in it, and I do not know the answer to that. Senator HUMPHRIES: I am just a little surprised to hear that answer, to be frank, given that this issue has now been batted backwards and forwards for at least three estimates hearings. I really think that it is surprising you would come forward and not have a view about this. We have discussed it on three separate occasions in front of this committee and now not to know whether you can release it is puzzling. You must have known that I was going to ask this question about this report.

Mr Wilkins: I did not know, because I do not think about these things all the time. Maybe some people should have thought about it. Senator HUMPHRIES: If it is your decision—

Mr Wilkins: Why don't I let you know after dinner? Senator HUMPHRIES: That would be great. All right, thank you very much. I will turn to a different issue. I asked a question on 12 February, which was answered at 2.30 this

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afternoon, about variations in a work order, No. 20110001, and I received an answer. The answer describes a number of decisions that were made within CrimTrac about variance to increase the value of that work order. The answer includes reference to a contract manager. It says:

The contract manager identified that a further period of time would be required to support the development of the Portfolio Program and Project Governance Framework—

and it was increased by $24,000 to the value of $107,000. Can you tell me who the contract manager was? Mr Smith: Mr Uri Von Durrick. Senator HUMPHRIES: Thank you. I have also had answers to question No. 81—again,

provided at half past two this afternoon—dealing with the circumstances of the departure from CrimTrac of Mr Storer and Mr Brumby. I would like to get some more information on these matters. Mr Storer, aside from salary increases over the three or four years that he was with CrimTrac, was paid a performance payment lump sum of just under $13,500 in September 2009. He was paid a further $16,789 in performance pay on 22 June 2011, and a further $14,403 on 14 September 2011. Can you tell us anything about the nature of those payments? Why did he receive those payments?

Mr Smith: They were in accordance with contractual arrangements that pre-dated my arrival at CrimTrac. A number of those were not approved by me. They pre-dated me and it was part of the practice at CrimTrac that people had a performance payment arrangement, which I stopped not long after arriving at CrimTrac. With respect to the first two of those payments, they were largely the result of work that was done prior to my arrival at CrimTrac. The payment that was made on 14 September 2011 was in accordance with the contractual arrangements at the time. With a new enterprise agreement on 1 July 2011, I stopped all performance payment within CrimTrac because I did not think it was a useful and productive thing.

Senator HUMPHRIES: That seems like a good thing, if I might pass editorial comment. What kind of thing would Mr Storer have done to warrant under his contract a performance payment?

Mr Smith: There were a number of performance indicators in his pre-existing contract and he had met those requirements and, therefore, they were contractually bound to be paid. I would have to take it on notice—I would have to go back to his contract—to give you the exact performance criteria, but they were pre-existing performance criteria in his contract.

Ms Mayo: Senator, if I may assist, with respect to the enterprise arrangements that existed for all staff at CrimTrac, performance pay was linked to basically a performance criteria assessment, so that, if you ranked at, for example, eight meets you were potentially able to be paid a performance bonus of a particular percentage of your salary. If you exceeded, that percentage was increased and so on. The arrangements that existed under the enterprise agreement for CrimTrac staff—a similar scheme was incorporated into the contracts for the senior executive officers.

Senator HUMPHRIES: Okay. But I want a flavour of the kind of thing we are talking about. Would it have been 'number of criminal records incorporated into CrimTrac's

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database'? Could it have been hours he worked? Give me an example of what kind of thing under the contract that a person might get a performance payment for. Mr Smith: Under their contract it was meeting some criteria with respect to the delivery of particular reports to the board, reports to the strategic issues group. As I indicated, when I arrived at CrimTrac in late January 2011, I wasn't at all pleased with the structure of the performance payment. The contracts largely reflected the enterprise agreement, and I negotiated that out for 1 July 2011.

Senator HUMPHRIES: Could I please find out what exactly were the criteria that Mr Storer met in order to qualify him for those bonus payments? Mr Smith: Certainly.

Senator HUMPHRIES: So Mr Storer was receiving bonus payments for presumably good performance, something he had done that was commendable and worthwhile from the point of view of CrimTrac.

Mr Smith: It was in accordance with his contract. I need to emphasise that. Senator HUMPHRIES: I would hope his contract was written in a way that meant that some benefit accrued to CrimTrac for achieving these criteria and that it was not if his hair turned a certain colour or whatever. It would have to be something that was beneficial to CrimTrac; otherwise, you would not have it in the contract, would you? Mr Smith: As I indicated, I was not satisfied with the criteria that were in the contracts or in the enterprise agreement. That is why they were removed. I will provide you with the terms of those performance clauses. Senator HUMPHRIES: When you do that, I hope you will tell me that these criteria were things that were of benefit to CrimTrac in some way. If you are paying people money for things that do not benefit the organisation, I would be extremely surprised. However, after receiving these performance payments, suddenly Mr Storer was being offered incentives of a different kind. He was being offered incentives to retire from the Public Service. He was offered an incentive payment under section 37 of the Public Service Act. That, I gather, is the payment he was made of $115,015.92. Is that correct? Mr Smith: Yes. He was also made a payment under section 73 of the Public Service Act, which I gather was related to his severance, because it comes under the heading 'severance packages'. That was for a further $100,000. Senator HUMPHRIES: That is correct. So Mr Storer was being given money for performing well and then given money to leave the organisation. Can you explain how that occurred? What changed between the dates he was being given pats on the back and rewards for good performance and being given incentives to get out of the organisation? Mr Smith: With respect to the performance bonus payments, they were in accordance with the pre-existing contracts. You have chosen to term them as being for excellent work, but I have to emphasise that they were in accordance with the existing contract. I took the decision not long after I arrived that I would negotiate those out both in the contracts and with respect to the enterprise agreement. Subsequently, matters which you have asked about were investigated and a decision was taken on advice that it was best that Mr Storer exit the organisation. Because of the deed upon which those terms are negotiated, there are clauses

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about which I cannot release all of the information, but a very defensible process was followed with respect to the incentive to retire and the other payments, the separation payments that you have spoken about. We engaged senior counsel from a very experienced firm in this regard, and all of the arrangements were signed off in accordance with the legal services directions of the Commonwealth.

Senator HUMPHRIES: That may well be the position that CrimTrac was left in by the terms of a contract which arguably should never have been signed if it led to incentive payments being made to a person who subsequently needed to be gotten rid of from an organisation. Again, I am editorialising. There was an investigation into Mr Storer and Mr Brumby. You have said that in your answer to question 81. Was that investigation completed at the time Mr Storer was offered those first two payments?

Mr Smith: Sorry, Senator. Could you repeat that, please? Senator HUMPHRIES: You said to me that, at the time of their departure from CrimTrac, Mr Storer and/or Mr Brumby had been investigated. Mr Smith: They had been investigated. The investigation was still ongoing with respect to Mr Brumby when he left, but it had been completed with respect to Mr Storer.

Senator HUMPHRIES: What was the finding of the investigation into Mr Storer? Mr Smith: Again, because of the terms of the deed upon which Mr Storer left, I am a little constrained with the detail that I can provide, but no breaches of the Public Service Code of Conduct were identified. Senator HUMPHRIES: Are you saying incentive payments under section 37 or section 73 of the Public Service Act, by statute, are not capable of being revealed, must be kept secret or that there is provision to keep them secret? Ms Mayo: No, we are not saying that at all. Senator HUMPHRIES: These were very substantial payments of public money to a public servant who was being investigated. I can only assume that the investigation came up with an adverse finding, because he was subsequently given a golden handshake. Why can't we know what the outcome of the investigation was? Ms Mayo: The outcome of the investigation was that there were no breaches of the Code of Conduct determined as a consequence. The amounts that are recorded there and disclosed are payments that will properly be disclosed and included in our annual report for this year and the following year. Senator HUMPHRIES: We know what the payments are because you have answered the question about what they are. What I am trying to find out is whether they were paid to a person who had had a finding by a duly convened inquiry that they had committed some inappropriate behaviour or conduct. You said there was no breach of the Code of Conduct. Were there any other adverse findings about Mr Storer in that inquiry? Mr Smith: There were no adverse findings. Senator HUMPHRIES: So he was investigated and there were no adverse findings about him arising out of that investigation? Mr Smith: That is correct.

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Senator HUMPHRIES: So why was he offered very substantial incentive payments to leave the Public Service? Mr Smith: The employment relationship between Mr Storer, me and the agency as a result of the investigation had become untenable and, by mutual consent, Mr Storer decided that we would enter into negotiations for him to depart the agency.

Senator HUMPHRIES: So the short answer is that he could not work with you any longer? Mr Wilkins: That is right. Essentially relationships had broken down. I attempted at the end to talk to him about the possibility of going back. He made it fairly clear that he did not think that that would work, and I think also Mr Smith made it clear that he did not think it was going to work. These things happen and they need to be resolved in some practical way. That is what this was—a practical way of trying to solve the problem.

Senator HUMPHRIES: It is a hell of a way of dealing with a conflict of personalities. Mr Wilkins: My philosophy was that the organisation needed to get on with its work and it was too important to be stuffed around with. Senator HUMPHRIES: I agree. But paying someone $215,000 from the public purse because the organisation cannot work with him anymore, does not like him, wants it out of the place is a big price to pay for an inability to work with other people.

Mr Wilkins: His view is that he could not work with them either. Senator HUMPHRIES: If he could not work with them, he should have gone. He should not be incentivised to go out the door. It is a lot of money to spend on essentially a way of solving a personality conflict inside an organisation. Mr Wilkins: I think it was probably more than—but anyway. Senator HUMPHRIES: I am astonished. Mr Brumby also received a substantial performance payment of almost $14,500. He was also investigated— Mr Smith: And he was still under investigation at the time. Senator HUMPHRIES: At the time that he left? Mr Smith: Yes. Senator HUMPHRIES: Does that mean that the investigation was discontinued when he left? Mr Smith: By law it does. Senator HUMPHRIES: So we do not know whether he committed any breach of the Code of Conduct or other inappropriate behaviour? Mr Smith: There was a breach of the Code of Conduct identified, and I think we have outlined that in our answer, but it had not been included through the processes. Senator HUMPHRIES: But he received no incentive payment to exit the organisation? Mr Smith: No. He resigned. Senator HUMPHRIES: Performance bonuses totalling approximately $899,500 were paid to 159 staff over the 2010-11 performance assessment period. You said that you brought those sorts of payments to an end, is that right?

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Mr Smith: In fact it was one of the first things that I identified when I arrived at the agency that needed to be dealt with, and they were dealt with as soon as I could under the new enterprise agreement which came into effect on 1 July 2011.

Senator HUMPHRIES: Were any of those 159 staff who received performance bonuses subject to payments to incentivise them to subsequently retire? Mr Smith: I would have to take that on notice but I do not believe so.

Senator HUMPHRIES: I want to ask about Mr Rankin. Mr Rankin was the chairman of the portfolio board from 7 March 2011 to 29 March 2012. I think we are told on the previous occasion that there was an ongoing dispute between Mr Rankin and CrimTrac. Is that still the case?

Mr Smith: That is correct. It is still the case. Senator HUMPHRIES: What stage has that reached? Is that litigation? Mr Smith: It is not at litigation, it is at negotiation, and it should not take much longer to resolve. Senator HUMPHRIES: I hope my questions do not complicate the exercise but I have to ask. Mr Rankin, I understand, was accused of not disclosing apparent conflicts of interest between work that his company Connection Business Solutions was doing for CrimTrac and his own chairmanship of the portfolio board. There were payments to Connection Business Solutions during the time that he was the chairman of the portfolio board of CrimTrac, weren't' there? Mr Smith: There were. Senator HUMPHRIES: You have told me in answer to question No. 80 that the records of CrimTrac indicate that no disclosure had been made by Mr Rankin's company in accordance with the contract that had been signed which provided for a process for disclosure of conflict of interest. Mr Smith: None were known to me at all. Senator HUMPHRIES: And none were on the record of CrimTrac? Mr Smith: There was nothing on the record and nothing was disclosed to me until it was identified in about mid-September 2011. I cannot speak for anyone else within the agency though. In fact, that is one of the matters of dispute. Senator HUMPHRIES: I want to go lastly to the question of the investigation into you, Mr Smith. Has it actually completed? Mr Wilkins: Sorry, I think I have misled you because— Senator HUMPHRIES: Confession is good for the soul, Mr Wilkins! Mr Wilkins: I thought you were referring to the formal investigation that Mr Cornell was carrying out into Mr Storer. Senator HUMPHRIES: No, I mean Mr Smith. Mr Wilkins: I have just been talking to Mr Smith. I am quite happy to give you the exchange of communications in which I raised certain allegations in relation to Mr Smith and he has replied to those allegations and explained himself. That is really the nature of it. I can see why he might say that that is not actually an investigation of the classic sort, but that is

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how public sector investigations are carried out. I have formally asked him and then gone back again and asked for further and better particulars, rather along the lines that you just did, Senator: 'Why exactly did you pay these extra salaries and what was the justification for that?' That is the nature of the investigation. I am happy to give you the exchange of documentation around that if you wish. So I can see why there might be some quibbling over whether you call it an investigation, or an inquiry or what. I thought you were referring to the Storer or the Brumby inquiry, which is clearly a long and ramified form of inquiry.

Senator HUMPHRIES: So when this answer to question 30 came back to me—I do not know who has answered it—it has come back in respect of CrimTrac, but presumably it was not CrimTrac that answered the question. I do not know who actually answered the question.

Mr Wilkins: I do not think it is a particularly good answer, when I look at it—and I am not entirely sure—but let me say— Senator HUMPHRIES: But there wasn't a code of conduct investigation auspiced by AGD. In fact, it was an exchange of correspondence by email between you and Mr Smith.

Mr Wilkins: Whether you call that a code of conduct—it raises issues around conduct. Questions of conduct were raised about Mr Smith—he is sitting here on my left. There were questions; they were raised, some anonymously, some through correspondence of various sorts. It is, I think, an obligation of a portfolio secretary at least to raise those with him and say, 'Listen, I need an explanation of what is going on here.' Also, the board of CrimTrac had asked for an explanation.

Senator HUMPHRIES: I would have thought that after waiting four months for the answer it would have been clear and concise, and with respect it does not appear to be concise, does it?

Mr Wilkins: It is concise. I am not sure it is clear. Senator HUMPHRIES: Okay, clear, accurate and concise. Mr Wilkins: I am saying it is probably best if I give you the documents that constitute the actual investigation or inquiry or whatever you want to call it. You can then classify it as you wish. Senator HUMPHRIES: When did the investigation, correspondence, whatever it is, whatever you want to call it, actually finish? Mr Wilkins: I think you can probably end-date it around March—no, probably later than that. On 9 May. Senator HUMPHRIES: This year? Mr Wilkins: 2012. Senator HUMPHRIES: I was asking questions about this investigation at the last estimates and the estimates before. If it had been concluded by then why could I not have been given it at that stage, if it was just an exchange of correspondence? This borders on running interference with the committee's work, doesn't it? I have been asking about this thing, wanting information about it, and have been told there is an ongoing investigation. You had some correspondence you say you are perfectly happy to release. Why have I had to pull teeth today to get that correspondence, Mr Wilkins?

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Ms Bailey: I was the officer charged by Secretary Wilkins with managing this process. I think I have misinterpreted your question. I provided those answers. I thought you were referring to the formal code of conduct that was also auspiced by the department into the two other officers. I apologise, but I took that to be about that. That is my error in the answer.

Senator HUMPHRIES: It is perfectly clear that I was talking about Mr Smith. Are there any ongoing investigations into Mr Smith at this stage? Mr Smith: No ongoing investigations.

Senator HUMPHRIES: Were there any investigations subsequent to the 'investigation' that you just referred to, Mr Wilkins, that was settled by an exchange of correspondence? Mr Wilkins: Apparently not. We will make this available to you, Senator.

CHAIR: We do not have any other questions for CrimTrac. We will suspend for dinner and come back at eight o'clock for group 2 and group 1 of the Attorney-General's Department. Proceedings suspended from 18:24 to 20:01

CHAIR: We resume with consideration of budget estimates in the Attorney-General's portfolio. We have gone through all of the agencies. We are up to our continuation of group 2. Senator Brandis, you have questions.

Senator BRANDIS: I was asking when we adjourned last night about the appointment of Ms Suzanne Jones as a judge of the Federal Circuit Court. What was the particular specialisation that Ms Jones, now Judge Jones, brought to the court?

Mr Wilkins: I will refer to Ms Glanville. Ms Glanville: In appointments to the Federal Circuit Court, the panel looks for generic dispositions— Senator BRANDIS: What does 'dispositions' mean?

Ms Glanville: Expertise, in other words. Essentially, because the jurisdiction of the Federal Circuit Court is quite broad and perhaps will become broader into the future, the panel looks for a range of areas of expertise. It could be family law, it could be migration law, it could be some taxation law—a variety of those sorts of matters. So, in relation to Ms Jones, that candidate—I do not have her CV with me—comes with a background I think that relates to the general federal law side rather than family law.

Senator BRANDIS: General federal law, really? Does Her Honour have any expertise beyond industrial law? Ms Glanville: Without having access to her CV and other documentation, I could not comment on that.

Senator BRANDIS: You said that the court deals with a range of matters across the whole of federal law, which of course is true. But it is also true, as we heard from Mr Foster yesterday afternoon, that more than 80 per cent—closer to 85 per cent—of matters are family law matters, and the much smaller proportion of Federal Circuit Court matters are what are called general federal law matters. Does Ms Jones have any expertise in family law?

Ms Glanville: Once again, I would need to look at her CV to give you an answer to that specifically—

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Senator BRANDIS: I can tell you, according to the Attorney-General’s press release of 16 May, to which he has attached a brief CV of Ms Jones, there is no suggestion that she has any experience in family law matters at all.

Ms Glanville: I accept what you say. Senator BRANDIS: It is the case, is it not, that, for that particular appointment for that particular position on the court, the court was looking for another specialist family lawyer? Ms Glanville: Well, the court looks for, as I said, generalists. That is the reality. The court looks for people who can work across the jurisdictions—

Senator BRANDIS: Really? Even though up to 85 per cent of its work is in one specialisation, it looks for generalists? That does not sound right to me. Ms Glanville: Well, it looks for people who can work across the jurisdictions and, importantly, as part of that, it would also look for people who have the capacity to quickly pick up on new jurisdictions. The Darwin court is a good example of where there is only a single judge, so that person is required to be working across the range of matters of the jurisdictions that would be possible for applicants to have brought in that sense.

Senator BRANDIS: I am sure, at a court in a relatively small population centre like Darwin, there would be a greater premium placed on somebody being a generalist, but we are talking about the Melbourne registry of the court, the second largest registry, where the judges—I can tell you; I know many of them—are quite clearly specialised between the family law judges, who do the family law work, and the general federal law judges. And while, Ms Glanville, what you say is true of the general federal law judges—because they are either people with a specialisation within one of the fields of general federal law or people with familiarity across a number of general federal law areas—in Melbourne, at the Melbourne registry, there are a reasonably large number of family law specialists who do the family law matters and then a relatively small number of federal law or general federal law judges who do the rest. That breaks up, as Mr Foster said to us yesterday, roughly in proportion to the caseload of the court. You do not dispute that, do you?

Ms Glanville: No, I do not. Senator BRANDIS: And what I am putting to you is that, in relation to the particular position on the court that Ms Jones, Judge Jones, was appointed to fill, the court was looking for a family law specialist to replace a family law spot. Ms Glanville: As I said, in the panel and the convening of the panel, what the panel looks for are applicants who can work across the jurisdictions of the court, and the importance of having the chief judge, John Pascoe, on the panel is to advise on exactly those sorts of issues. Senator BRANDIS: So is it your evidence to the committee that Chief Judge Pascoe did not acquaint the panel with the fact that the position to which Ms Jones was being appointed was a position in which the court was looking for a family law specialist? Ms Glanville: No, that is not my evidence. My evidence is that, in looking for suitable applicants for Federal Circuit Court positions, the panel considers the breadth of jurisdiction of the court and, given that the chief judge is part of the panel, that provides an immediate ability to tap into those sorts of issues. As I indicated previously, with the diversity of candidates before the panel what is also considered is an ability to adapt quickly to new areas

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of law, perhaps. That is an important part of what a judicial officer needs to be able to do and to demonstrate. In fact, often, when candidates are presented with several scenarios where they must choose one to give a decision in, candidates will often pick the area that they are not familiar with, or the area that is not as much part of their everyday practice, in order to demonstrate their ability to work across the jurisdictions of the court.

Senator BRANDIS: Does Ms Jones have any family law experience at all? Ms Glanville: As I said, without looking at her full CV I could not answer that question. Senator BRANDIS: Well, the answer is 'no'. She was an industrial lawyer and she had been recruited from the Fair Work Commission— CHAIR: Senator Brandis, I think that maybe you might want to rephrase that. In your opinion, that is not correct, but Ms Glanville has said that she cannot provide you with that answer; she does not have the range of CVs in front of her. Senator BRANDIS: Would you like to see the Attorney-General's press release, to which a brief CV is appended? CHAIR: I just want to make sure that you are not correcting Ms Glanville by saying 'no', that is all. She gave you an answer and I think that you should accept it. Senator BRANDIS: Okay. I was not in fact correcting Ms Glanville—I am putting a proposition to a witness based upon the Attorney-General's press release, which appends Ms Jones's CV. I should say that I do not doubt Ms Jones was an experienced industrial law specialist. I am sure the fact that she was a commissioner of the Fair Work Commission at the time of her appointment to the Federal Circuit Court, as it was called by the time she was appointed, demonstrates that her experience in industrial law should not be criticised—could not be criticised. What strikes me as surprising about this appointment is that I know from conversations I have had with many senior figures in the court that the court was looking in this particular case for a family law specialist to handle the family law list, which comprises upwards of 80 per cent of its work, and instead, from the large number of applicants for the position it received, it ended up with an industrial law specialist with no background in family law matters at all. Can you explain how that could have happened, Ms Glanville? Ms Glanville: Firstly, as I said, the panel looks for applicants who can work across all the jurisdictions of the court. I accept that there are applicants who often come with a preferred area of expertise, or one that they have practiced in for some time. But the process the panel is engaged with is finding applicants who can act in all jurisdictions of the Federal Circuit Court. In addition to that, the legal expertise—the ability to deliver judgements and decisions and to understand and apply the law—is one part of the interview. There is a broader range of questions and issues that are captured not only in the expression-of-interest advertisements but that are the subject of questions as part of the interview process. So this would include matters such as the ability of candidates to contribute to the overall health and wellbeing of the organisation; the ability of candidates to contribute to a collegiate environment, given the very difficult and comprehensive nature of the work that the Federal Circuit Court, as the trial court, does; the ability to understand and deal with people who are particularly disadvantaged because, often in a lot of the lists before the Federal Circuit Court, that is the nature of the

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work that comes before it; their own interests in learning and self-development; how they manage stress; and what issues they think would be confronting the court into the future. So, while their legal expertise and their ability to undertake the core function of a judge of the Federal Circuit Court is clearly very central, there are a range of other issues that are explored as part of the interview process.

Senator BRANDIS: Would their political values be relevant? Ms Glanville: No. Senator BRANDIS: I can understand, because this is not a perfect science, that it might be able to be explained that a person who, from a very large number of applicants, did not make the shortlist on its first iteration might have ended up getting the job. I can understand, perhaps, how when the court was looking for a specialist family lawyer it ended up with a specialist industrial lawyer with no experience in family law. Each of those circumstances is anomalous but, nevertheless, they might each be able to be explained away. But when both of those sets of circumstances operate in the case of a particular selection—a person is chosen with no expertise or experience in the field where the court is looking to find a replacement, and the person who is chosen is somebody who did not even make the shortlist in its first iteration—and then we learn that the person happens to be married to the president of the ACTU, do not you think, Ms Glanville, that that raises suspicions that perhaps this was not a purely meritocratic process? CHAIR: I think you are asking the public servant for an opinion. Mr Wilkins: I think Ms Glanville has been trying to give her evidence, but if now the suggestion is that there were some corruption involved— Senator BRANDIS: No, I am not suggesting corruption. Mr Wilkins: If somebody is suggesting that, particularly if the chief judge was involved— Senator BRANDIS: I am asking whether it was a purely meritocratic process. Mr Wilkins: I think she has explained the process. CHAIR: Senator Brandis, you are asking Ms Glanville for her opinion, and we know that that is not what you should be doing. Senator BRANDIS: Let me tackle you, Mr Wilkins. I think it was quite inappropriate for you to characterise my questions as suggesting corruption. There is a world of difference between corruption— Mr Wilkins: You said suspicious. Senator BRANDIS: and favouritism. Mr Wilkins: Not necessarily in the public sector, where meritocracy is actually the key value. So to say to a public servant that they are presiding over a process which is being bodgied in that sense, I think, is— Senator BRANDIS: That is what I am asking. Are you satisfied with this person? Mr Wilkins: The chief judge was on the process as well. I was not in the process, but I have listened. From what I have heard, it seems to have been done by people with immaculate

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qualifications in the sense that they have acted in good faith and they have gone through a process. I just do not know what we could say to you, Senator. Senator BRANDIS: I am exploring this, Mr Wilkins; hence my question to Ms Glanville. Let us disregard Judge Jones's political connections. Where you have what you say is a competitive process, and the court is looking for a family law specialist—

Mr Wilkins: That was not conceded. I was listening to the answer; that was not what Ms Glanville said. Senator BRANDIS: It was, Mr Wilkins. When the court is looking for a person with a specialisation and expertise in a particular area of the law, which is of course the lion's share of its work, and it appoints somebody with no expertise or experience in that field and that person is a person who did not make the first iteration of the shortlist, surely it raises at least a question about whether this was a purely meritocratic selection process or whether other considerations may have intruded themselves. What do you say about that?

Ms Glanville: I say that is entirely inaccurate. I say that the panel, which was comprised of myself, the Chief Judge of the Federal Circuit Court and the Hon. Susan Morgan—a former Family Court judge—participated in this process and participated in it according to all the principles of meritorious selection. That is what I would say in response to your question.

Senator BRANDIS: Even though we know from the evidence night last that the first iteration of the shortlist went to the Attorney-General's office? Ms Glanville: Yes.

Senator BRANDIS: I have one other small matter in relation to the upcoming appointments to the Federal Court. Are you involved in those Ms Granville? Ms Glanville: No.

Senator BRANDIS: Who at the table is involved in those? Mr Fredericks: That would be me. Senator BRANDIS: Mr Fredericks, can you give the public an assurance that Ms Nicola Roxon is not on the shortlist? Mr Fredericks: I have not actually seen the shortlist. I should say that I have not actually seen the lists yet. As I advised you last night, the panel has not convened yet to do any shortlisting. Senator BRANDIS: Senator Ludwig, you are a member of the government who will ultimately make this recommendation to the Governor-General in counsel. Can you give the public an assurance that Ms Nicola Roxon is not going to be the next Federal Court judge? Senator Ludwig: I can give you an assurance that the public service will carry out its duty in the way that has been prescribed, unlike the way the previous Howard government selected people for the Federal Court, the High Court and everywhere else. It did not have an open and transparent process for selection, did it? No. Senator BRANDIS: So you cannot give me the assurance I am seeking? Senator Ludwig: The assurance I gave you was very clear: that we have a process— unlike the Howard government, which did not have a process and which then would leave you with a suspicion that there may have been favouritism in some cases. Not that I ever, in the

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time that I was shadow Attorney-General, even suggested that for an appointment of Mr Ruddock. I find it unusual for you to be putting that now, but, given that you are and you have explored it, and come to the conclusion that there is none there, then what I always support is the process that we have put in place, unlike the 'no process' that you had in place.

Senator BRANDIS: Senator Ludwig, can I correct you— Senator Ludwig: Always. Senator BRANDIS: in pointing out that the process for appointments to the High Court adopted by your government, is the identical process— Mr Wilkins: That is true. Senator BRANDIS: I see Mr Wilkins nodding—to the process adopted by previous governments of both a coalition and a Labor political persuasion. Senator Ludwig: And conceded. Senator BRANDIS: So, you should not make that observation. In relation to other courts, it is true that a process has been adopted, and, as I observed last night, in 5½ years as the shadow Attorney-General I have not thought it appropriate to criticise a single one of the numerous judicial appointments—more than 20—to the federal judiciary made by your government. Senator Ludwig: That is true. Senator BRANDIS: In any event, the answer to my question is that you cannot give me that assurance. Senator Ludwig: The assurance I have given you is unlike the previous government. Senator BRANDIS: That is not the assurance I am seeking. Senator Ludwig: We have a system in place, and you have heard tonight that it is separate from the political process. I would hope that you would give an assurance, as the shadow Attorney-General, that in any future government you might participate in you would also have a system that ensures that you cannot reach in. Senator BRANDIS: I am by no means suggesting, by the way, that if Ms Roxon were to be appointed she would not be a suitable appointment, because she is a very good lawyer. Just as when your government appointed a former ministerial colleague of yours, Mr Duncan Kerr, to the Federal Court, I praised it because I thought it was a good appointment. I am by no means suggesting that it would be the wrong appointment; I am merely seeking to explore whether Ms Roxon is one of the candidates. I think the public are entitled to know that. Senator Ludwig: And you have a response in relation to that: I do not know whether she is or is not on a particular list, and nor should I—nor would I. The appropriate way that we have dealt with this in the past is that we have an open and transparent system to appoint, unlike the that system you had. But I have not heard yet whether or not you would commit to the new system, to continue the current system. Senator BRANDIS: All right— Senator Ludwig: No, I did not think so. Senator BRANDIS: I am sorry? Senator Ludwig: You are not committing to continue the current system should you be—

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Senator BRANDIS: I am not here to answer questions. Senator Ludwig: No, I did not think you did. So there is no guarantee from you either? Senator BRANDIS: I think I am finished with this outcome. I have some questions about legal services expenditure. The Commonwealth legal services expenditure report 2011-12 was, as I am sure you know, released on 20 December last year. It showed an increase of 8.4 per cent on legal services expenditure in the previous financial year to $722 million. The total legal services expenditure of FMA agencies increased by 8.4 per cent. The total expenditure of CAC Act agencies actually decreased by 6.4 per cent. Mr Fredericks: Senator, I suspect it was just a slip of the tongue, but, in relation to the total, I think you may have said that the total increase was 8.4 per cent. Senator BRANDIS: Yes. Mr Fredericks: The total increase was 6.7 per cent. You then accurately said, in relation to FMA agencies, that the increase was 8.4 per cent. Senator BRANDIS: There must be a mistake in my notes. For what percentage of litigation work is the Australian Government Solicitor retained by FMA Act agencies and CAC Act agencies? Mr Minogue: We do not have figures for the breakdown of work. Senator BRANDIS: You do not disaggregate that? Mr Minogue: That is right, we do not disaggregate it at the level of the type of work AGS does for different agencies. Senator BRANDIS: But you must, because the legal services expenditure report tells us. Mr Minogue: It tells us the services provided by the providers and the expenditure that the providers earn, but it does not tell us for what services. Senator BRANDIS: Either you misunderstood my question or I did not put it properly. All I wanted to know is what the breakup is of work done by the AGS for, respectively, FMA Act agencies and CAC Act agencies. Mr Wilkins: Separately or together? Senator BRANDIS: Separately. Mr Fredericks: That is in relation to all legal services expansion, not just litigation. Senator BRANDIS: Correct. Mr Minogue: We have a total for both FMA and CAC agencies that AGS has earned, but it is not broken down between FMA and CAC. Senator BRANDIS: Can you take that question on notice? Mr Minogue: We can. Mr Wilkins: Let us take it on notice and see if we can figure that out. It sounds like we might have the data. Senator BRANDIS: What was the total amount of money spent by the Commonwealth on barristers—that is, private barristers—including 2011-12? Mr Minogue: In 2011-12, the total spent on barristers was $53.2 million. Senator BRANDIS: And what was the total amount paid to private law firms?

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Mr Minogue: The total amount paid to private firms—I might take that on notice. We will have those figures. We do know that AGS earned just under 40 per cent—that is 39 per cent of the fees earned by all law firms providing services to the Commonwealth. I might take that on notice.

Senator BRANDIS: The principle is, isn't it, that the AGS is treated from the point of view of competitive neutrality as if it were just another private law firm? Mr Wilkins: Except the tied work.

Senator BRANDIS: Except that it exclusively acts for the Commonwealth agencies. Mr Wilkins: Except for tied work. There is certain constitutional law; there are certain categories of work of that sort which cannot go into the market. But, apart from that, that is right. Senator BRANDIS: The categories of legal services acquired by the Commonwealth are that you have the services provided by the AGS; you have the services provided by private law firms; you have the services provided by barristers at the private bar; you have the services—in particular advice to government—provided from within the Attorney-General's Department; and then you have the services provided to departments and agencies by in-house lawyers. Mr Wilkins: That is right. All of these. Senator BRANDIS: Are those all the categories? Mr Wilkins: They are pretty exhaustive, I think. Senator BRANDIS: I am interested in the last of those categories. In aggregating the entire Commonwealth legal services expenditure, are the services of in-house lawyers provided to Commonwealth agencies or Commonwealth departments accounted in that aggregate, and are they accounted as a separate item? Mr Wilkins: I will get Mr Minogue to answer that. Mr Minogue: Yes, internal legal services are included and accounted for. Senator BRANDIS: And that includes all internal legal services for every Commonwealth agency or department regardless of what it is? Mr Wilkins: It is supposed to, yes. Senator BRANDIS: And who supervises the reporting requirements by those agencies for those services? Mr Wilkins: I guess we do in the sense that we ride herd on people if they do not get them in on time, we try to ensure they have a consistent set of criteria that they are applying and we amalgamate the information when we get it. Senator BRANDIS: And in 2011-12 what was the aggregate of the expenditure by Commonwealth departments and agencies, excluding the Attorney-General's Department, on in-house lawyers? Mr Minogue: I would have to work backwards to exclude Attorney-General's, but the— Senator BRANDIS: I think it is right to exclude Attorney-General's, don't you, because Attorney-General's is meant to provide the legal advice directly to the senior levels of government?

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Mr Wilkins: In certain areas we do. We do some constitutional advising. We certainly do international law. I do not know whether you can exclude that. Mr Minogue: We can. Let me work through and see how we go. For FMA agencies across the board the internal legal services provided in 2011-12 were $309.4 million. For CAC agencies their internally provided legal services was $41.3 million. I am just trying to work backwards in terms of—

Senator BRANDIS: So $350.7 million for in-house lawyers. Mr Wilkins: What was that? Senator BRANDIS: That was $350.7 million by my arithmetic, Mr Wilkins. Mr Minogue: Yes. Our internal legal spend for 2011-12 for Attorney-General's Department was $1.422 million.

Senator BRANDIS: This is a slightly arcane question, Mr Wilkins, but my understanding of the way in which the Attorney-General's Department provides legal advice to government is that it sometimes provides formal written advice but it also, because of the nature of the Attorney-General's Department, is consulted all the time, particularly by the central agencies of government, in relation to, as it were, high-level matters. Are consultations included in that or—

Mr Wilkins: I think we are only identifying quite formal advising— Senator BRANDIS: That is what I was wondering. Mr Wilkins: And I think there is a lot of other scrutiny, advice, consultation, where we sit on committees and give— Senator BRANDIS: Yes, that is what I was getting at. Is the Commonwealth Solicitor-General’s salary included in that, by the way? Mr Minogue: I would have to take that on notice. I do not think it is. Senator BRANDIS: So that is yet another very discrete source of advice? Mr Wilkins: That is true, and the DPP might be another source too, if you wanted to be exhaustive. Senator BRANDIS: I want to know how all of the Commonwealth’s legal service expenditures break up. That is what I want to know. You have told me about the CAC Act and the FMA Act and agencies from in-house counsel. You have told me about the amount spent on barristers. You have not been able to tell me, because you have taken it on notice, the amount spent on private law firms. You have told me the amount of the Attorney-General’s Department. Is there a trend evident, Mr Wilkins, in the relative shares of the pie, as it were, between those different categories? Mr Wilkins: I think we are only beginning to come to terms with empiricism on this. We have not been collecting these statistics for that long to talk about trends, but there seem to be impressions. If you talk to people, they certainly talk about, if you have been around for a while, what the trends are. There seem to be, one would say, an expansion of in-house lawyers in the Commonwealth, and that may be for reasons that, whether they are sound judgements or not, they may appear to be quicker and cheaper; I do not know. That certainly seems to be a trend that is of some concern to private practitioners at probably the AGS and, I

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guess, even the Treasury or the department of finance—I cannot talk for them. That could be a trend, Senator. Senator BRANDIS: You think there is something of a trend towards in-house lawyers? Mr Wilkins: I think so.

Senator BRANDIS: And does the Attorney-General’s Department or indeed Finance have a view about the desirability of that trend not only in terms of getting the best value for the taxpayers' dollar out of your legal service providers but also in terms of the quality of the legal services provided for that spend? Is there a view about the most desirable allocation of function between the several different legal service providers?

Mr Wilkins: I think the view would be that, if in-house lawyers were treated as, say, corporates treat their corporate counsel and they were very clear about the functions of their in-house corporate counsel, then that would make sense, but I think it has gone beyond that in some cases. There is a mixed bag out there.

Senator BRANDIS: I am very interested in what you are saying, Mr Wilkins. Please expand at some length on this. Mr Wilkins: When Krieger and Blunn had a look at some of these issues, I think their view was that it was a very mixed bag when they looked at the capacities and the skills of lawyers across the public sector and also whether or not the strategic views about how those lawyers were to be used within a department were actually being employed. So, in some cases, where you get really a commoditised type of legal transaction, it might make sense—

Senator BRANDIS: By commoditised, do you mean sort of routine transactions? Mr Wilkins: Yes, with some volume. Senator BRANDIS: So, for example, with a Commonwealth housing authority, it would make sense to have in-house lawyers doing the leases because it is a very routine thing and they would develop a high level of expertise in doing one reasonably narrow thing. Mr Wilkins: Exactly. And you would be able to fully employ a person on that and build up a level of expertise. On the other hand, that is not always the case. There seems in some cases—I will not choose any particular departments—to be some confusion about exactly what the role of these in-house lawyers is. Senator BRANDIS: Do you think it is time, Mr Wilkins, that we had some standards or guidelines across government for in-house lawyers? Mr Wilkins: I would like to think that we do have some standards, but it could be taken to another level. Certainly the Legal Services Directions are meant to lay down some guidance to the type of behaviour that is expected of government lawyers— Senator BRANDIS: But a lot of these departments, and more particularly agencies, are laws unto themselves, are they not? How do you, as the Attorney-General’s Department, enforce the Legal Services Directions? Mr Wilkins: I try and use suasion. Suasion is the main technique, Senator. And occasionally you might try and recruit a central agency with some power and clout and use the power of the purse. But essentially it comes down to building relationships and using suasion. It is quite difficult—

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Senator BRANDIS: So the Legal Services Directions are unenforceable? Mr Wilkins: As a mandated enforcement tool, yes. You cannot rely on that. Senator BRANDIS: That is fine. Mr Wilkins: There is another trend that Mr Fredericks has just drawn to my attention that you might be interested in, Senator.

Mr Fredericks: Senator, in the report, I think we appreciate you have an interest in direct briefing of counsel. Senator BRANDIS: Well, I suppose I am a little bit interested in it. I do not have the direct financial interest in it I had 15 years ago.

Mr Fredericks: The report reveals, Senator, on the question of trends that there has been quite a trend over the last four years in favour of direct briefing of counsel. Senator BRANDIS: Direct briefing meaning not through the AGS or through a private law firm?

Mr Fredericks: That is right. Senator BRANDIS: And that reflects the state of the market in the private legal services sector. Mr Fredericks: Yes. So that is a discernible trend.

Senator BRANDIS: It is a discernible trend. It is not a surprising one, given that is the way counsel get briefed these days, in a way that they did not used to. Mr Fredericks: Yes. You would probably see the same trend in the private sector.

Senator BRANDIS: Indeed you do. There is one last thing. I want to ask some questions about the waiver of court filing fees for irregular maritime arrivals. Is that in this outcome? Mr Wilkins: Tell me what the question is, Senator, and I will try and figure out—

Senator BRANDIS: What I want to find out about is the cost of the waiver of court filing fees in relation to review applications for IMAs. I should have asked that of Mr Foster. Mr Wilkins: Whether we know what it is? I do not know what impact it has, Senator— that is the question.

Senator BRANDIS: Perhaps you could take this on notice. I would just be interested in knowing what the cost that would otherwise be recouped by the Commonwealth is as a result of the government's decision to waive filing fees in federal courts for IMAs seeking judicial review of their matters.

Mr Wilkins: Okay. Mr Fredericks: Yes, thank you. CHAIR: Senator Brandis, do you have anything for group 1? Senator BRANDIS: I think that is all I have for the department. CHAIR: Senator Humphries wanted an hour if he was here, but said if we finished early, so be it. That is it for tonight!

Mr Wilkins: Sorry, Madam Chair: just before we do break, could I take this opportunity on behalf of the portfolio, because I understand that this is going to be your last session with

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us and will also be Senator Humphries' last session with us too, I think, if I understand how the Constitution works! I think I can speak on behalf of everybody who has appeared before you that we have really quite enjoyed it. I do not want to overstate that and give people the wrong idea, but we certainly hold you in the highest respect. You have done a fantastic job in terms of your charmed good humour and your wise advice—and steadying advice at times. From a public servant's point of view I think I could say the same, too, for Senator Humphries and for the other members of the committee. I think it has been a salutary experience for public servants to appear before a committee where, really, most of the people are interested in substantive policy issues and the good of the country. I think you have done a terrific job, Madam Chair, in presiding over that over a number of years.

So, on behalf of my portfolio and my portfolio colleagues, I would just like to wish you the best, and I would also like to wish Senator Humphries the best for the future. Thank you. CHAIR: Thank you.

Senator BRANDIS: Madam Chair, before you adjourn: I was also going to make some valedictory remarks. I will make some proper valedictory remarks in the chamber before the parliament finishes, but for all the time my party has been in opposition you have been the chair of this committee and I have been the shadow Attorney-General and there have been many memorable sessions of this committee. A lot of issues have been illuminated, and you have, on occasions, found the need to chastise my exuberance. But I wanted to as well thank you very much indeed for the steady and firm, and decent and fair, way in which you have conducted the business of this committee.

Mr Wilkins: Absolutely. Hear, hear! CHAIR: Thank you. Thanks very much for that. As you know, I pride myself sometimes in a sense that I do not have a law degree, and that I am not a lawyer. I sat for nine years on the Education, Employment and Workplace Relations Committee, which was my comfort zone, and then, of course, I picked up the deputy chair's job under Marise Payne. When Nick Bolkus left I thought that I would jump into the space and give myself some new challenges, which I certainly did. I think the day George Williams actually sent to my office four thick volumes of constitutional law and how to understand it, I wondered whether he was sending me a hint or if he was just being very kind, and welcoming me into his area of knowledge. The one thing that I really do say is how incredibly impressed I have been with the people in the department who have appeared before us at estimates, but particularly during our inquiry. I said this, I think on Tuesday night, in front of the Department of Immigration and Citizenship—and if there are people watching this publicly, they should really know—about the outstanding talent and wealth of knowledge that our public servants have and the ability they have to actually do the best they possibly can, despite who is in government and despite whatever enormous, horrible task they have been given—like personal property security legislation, for example! That is one thing. I have sat here over the years and watched people move about. There is a particular person I identified last night—I will not name who she is because she will not want to be named in Hansard—who popped up in another area of your department, and I was really pleased to see that. I had been looking for her for two days, and I think she is there

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because she got a promotion—which is even more exciting. So I have watched public servants move around, and I have watched people who have gone or been promoted. The work I do, though, is miniscule compared to the work that people like Julie and the team in the Legal and Constitutional Affairs Committee secretariat of this parliament do, and I will say more about that in my valedictory speech. But thanks a lot: you have been a great lot of people to work with. I am very disappointed that we never, ever, ever get to share that bowl of lollies with you, so maybe in the next parliament you will be a bit more generous with your sweets in the course of the two days!

Mr Wilkins: I will take that onboard; comes out of consolidated revenue! CHAIR: But all the best for the next couple of months, because I know that no matter what happens come September your jobs will be eminently busy after that period of time. It has been a great ride and a great journey, And thanks for actually challenging me and put me in a space that I would never have normally gone into in my life. So thanks very much. With that, I am very pleased that on my list of 'will I ever regret estimates?' I will have to be honest and say, 'No, I won't!' I am happy to adjourn, and you can reconvene at estimates way after the next election, and I do not think I will be watching you! Thank you everybody, and thank you broadcasting and Hansard.

Committee adjourned at 20:52

COMMONWEALTH OF AUSTRALIA

Proof Committee Hansard

SENATE

LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE

Estimates

(Public)

MONDAY, 18 NOVEMBER 2013

CANBERRA

BY AUTHORITY OF THE SENATE

[PROOF COPY]

CONDITIONS OF DISTRIBUTION This is an uncorrected proof of evidence taken before the committee. It is made available under the condition that it is recognised as such.

INTERNET

Hansard transcripts of public hearings are made available on the internet when authorised by the committee.

To search the parliamentary database, go to: http://parlinfo.aph.gov.au

SENATE

LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE

Monday, 18 November 2013

Members in attendance: Senators Birmingham, Boyce, Brandis, Bushby, Cameron, Jacinta Collins, Edwards, Furner, Ludwig, Ian Macdonald, Marshall, Peris, Rhiannon, Seselja, Siewert, Singh, Wright, Xenophon.

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ATTORNEY-GENERAL PORTFOLIO In Attendance

Senator Brandis, Attorney-General and Minister for the Arts, representing the Minister for Justice Senator Birmingham, Parliamentary Secretary to the Minister for the Environment Attorney-General’s Department Mr Roger Wilkins AO, Secretary

Ms Louise Glanville, Acting Deputy Secretary, Strategic Policy and Coordination Group Mr Tony Sheehan, Deputy Secretary, National Security and Criminal Justice Group Mr David Fredericks, Deputy Secretary, Civil Justice and Legal Services 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 Program 1.1—Attorney-General’s Department Operating Expenses - Civil Justice and Legal Services Access to Justice Division Dr Albin Smrdel, Acting First Assistant Secretary Ms Tamsyn Harvey, Assistant Secretary, Family Law Branch Ms Margaret Meibusch, Assistant Secretary, Courts, Tribunals and Justice Policy Branch Mr Peter Arnaudo, Assistant Secretary, Marriage and Intercountry Adoption Branch Civil Law Division Ms Jane Fitzgerald, Acting First Assistant Secretary Ms Catherine Fitch, Assistant Secretary, Office of Legal Services Coordination Mr Andrew Walter, Assistant Secretary, Commercial and Administrative Law Branch Ms Toni Pirani, Assistant Secretary, Royal Commission - Commonwealth’s Representation International Law and Human Rights Division Mr Greg Manning, First Assistant Secretary Mr Bill Campbell QC, General Counsel (International Law) Ms Helen Daniels, Assistant Secretary, International Human Rights and Anti-Discrimination Branch Mr John Reid, Assistant Secretary, International Law, Trade and Security Branch Mr Stephen Bouwhuis, Assistant Secretary, Human Rights Policy Branch Mr Mark Jennings, Senior Counsel, International Tobacco Litigation Taskforce Social Inclusion Division Mr Kym Duggan, First Assistant Secretary Ms Marjorie Todd, Assistant Secretary, Legal Assistance Branch Ms Cathy Rainsford, Assistant Secretary, Native Title Unit Ms Elizabeth Quinn, Change Manager, Legal Assistance Branch Mr Nathan Rudder, Principal Legal Officer, Financial Assistance Section, Legal Assistance Branch Defence Abuse Response Taskforce Mr Matt Hall, Executive Director Program 1.2—Attorney-General’s Department Operating Expenses - National Security and Criminal Justice Criminal Justice Division Mr Iain Anderson, First Assistant Secretary Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement Branch Ms Rachel Antone, Acting Assistant Secretary, Crime Prevention and Federal Offenders Branch Ms Kelly Williams, Assistant Secretary, AusCheck Branch

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Emergency Management Australia Mr Chris Collett, Acting Director-General Ms Catherine Jones, Assistant Secretary, National Disaster Recovery Programs Branch Mr Chris Collett, Assistant Secretary, Crisis Coordination Branch Mr Aaron Verlin, Acting Assistant Secretary, Dignitary and Major Events Security Branch

International Crime Cooperation Division Ms Katherine Jones, First Assistant Secretary Mr Cameron Gifford, Assistant Secretary, International Crime Cooperation Central Authority Ms Alex Taylor, Assistant Secretary, Transnational Crime and Corruption Branch Ms Catherine Hawkins, Assistant Secretary, International Legal Assistance Branch

National Security Resilience Policy Division Mr Mike Rothery, First Assistant Secretary Mr Andrew Rice, Assistant Secretary, Cyber and Identity Security Policy Branch Mr Michael Jerks, Assistant Secretary, Critical Infrastructure and Protective Security Policy Branch Ms Samantha Chard, Assistant Secretary, Emergency Management Policy Branch Mr Michael Pahlow, Assistant Secretary, Capability Development Branch

National Security Law and Policy Division Mr Geoff McDonald PSM, First Assistant Secretary Ms Elizabeth Brayshaw, Acting Assistant Secretary, Security Law Branch and National Security Capability

Unit Ms Jamie Lowe, Assistant Secretary, National Security Policy and Programs Branch Ms Catherine Smith, Assistant Secretary, Telecommunications and Surveillance Law Branch

Program 1.3—Justice Services Access to Justice Division Dr Albin Smrdel, Acting First Assistant Secretary Ms Tamsyn Harvey, Assistant Secretary, Family Law Branch

Ms Margaret Meibusch, Assistant Secretary, Courts, Tribunals and Justice Policy Branch Mr Peter Arnaudo, Assistant Secretary, Marriage and Intercountry Adoption Branch Social Inclusion Division Mr Kym Duggan, First Assistant Secretary

Ms Marjorie Todd, Assistant Secretary, Legal Assistance Branch Ms Cathy Rainsford, Assistant Secretary, Native Title Unit Ms Elizabeth Quinn, Change Manager, Legal Assistance Branch Mr Nathan Rudder, Principal Legal Officer, Financial Assistance Section, Legal Assistance Branch Civil Law Division

Ms Jane Fitzgerald, Acting First Assistant Secretary Ms Catherine Fitch, Assistant Secretary, Office of Legal Services Coordination Mr Andrew Walter, Assistant Secretary, Commercial and Administrative Law Branch Ms Toni Pirani, Assistant Secretary, Royal Commission - Commonwealth’s Representation International Law and Human Rights Division

Mr Greg Manning, First Assistant Secretary Mr Bill Campbell QC, General Counsel (International Law) Ms Helen Daniels, Assistant Secretary, International Human Rights and Anti-Discrimination Branch Mr John Reid, Assistant Secretary, International Law, Trade and Security Branch Mr Stephen Bouwhuis, Assistant Secretary, Human Rights Policy Branch Mr Mark Jennings, Senior Counsel, International Tobacco Litigation Taskforce

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Program 1.4—Family Relationship Services Access to Justice Division Dr Albin Smrdel, Acting First Assistant Secretary Ms Tamsyn Harvey, Assistant Secretary, Family Law Branch

Ms Margaret Meibusch, Assistant Secretary, Courts, Tribunals and Justice Policy Branch Mr Peter Arnaudo, Assistant Secretary, Marriage and Intercountry Adoption Branch Program 1.5—Indigenous Law and Justice Social Inclusion Division Mr Kym Duggan, First Assistant Secretary Ms Marjorie Todd, Assistant Secretary, Legal Assistance Branch Ms Cathy Rainsford, Assistant Secretary, Native Title Unit Ms Elizabeth Quinn, Change Manager, Legal Assistance Branch Mr Nathan Rudder, Principal Legal Officer, Financial Assistance Section, Legal Assistance Branch Program 1.6—National Security and Criminal Justice Criminal Justice Division Mr Iain Anderson, First Assistant Secretary Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement Branch Ms Rachel Antone, Acting Assistant Secretary, Crime Prevention and Federal Offenders Branch Ms Kelly Williams, Assistant Secretary, AusCheck Branch Emergency Management Australia Mr Chris Collett, Acting Director General Ms Catherine Jones, Assistant Secretary, National Disaster Recovery Programs Branch Mr Chris Collett, Assistant Secretary, Crisis Coordination Branch Mr Aaron Verlin, Acting Assistant Secretary, Dignitary and Major Events Security Branch Ms Raelene Thompson, Assistant Secretary, National Security Training Education and Development Branch. International Crime Cooperation Division Ms Katherine Jones, First Assistant Secretary Mr Cameron Gifford, Assistant Secretary, International Crime Cooperation Central Authority Ms Alex Taylor, Assistant Secretary, Transnational Crime and Corruption Branch Ms Catherine Hawkins, Assistant Secretary, International Legal Assistance Branch National Security Resilience Policy Division Mr Mike Rothery, First Assistant Secretary Mr Andrew Rice, Assistant Secretary, Cyber and Identity Security Policy Branch Mr Michael Jerks, Assistant Secretary, Critical Infrastructure and Protective Security Policy Branch Ms Samantha Chard, Assistant Secretary, Emergency Management Policy Branch Mr Michael Pahlow, Assistant Secretary, Capability Development Branch National Security Law and Policy Division Mr Geoff McDonald PSM, First Assistant Secretary Ms Elizabeth Brayshaw, Acting Assistant Secretary, Security Law Branch and National Security Capability Unit Ms Jamie Lowe, Assistant Secretary, National Security Policy and Programs Branch Ms Catherine Smith, Assistant Secretary, Telecommunications and Surveillance Law Branch Program 1.7—Australian Government Disaster Financial Support Payments Emergency Management Australia Mr Chris Collett, Acting Director General Ms Catherine Jones, Assistant Secretary, National Disaster Recovery Programs Branch

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Mr Chris Collett, Assistant Secretary, Crisis Coordination Branch Mr Aaron Verlin, Acting Assistant Secretary, Dignitary and Major Events Security Branch Ms Raelene Thompson, Assistant Secretary, National Security Training Education and Development Branch. Program 1.8—Royal Commission into Institutional Responses to Child Sexual Abuse Royal Commission into Institutional Responses to Child Sexual Abuse Ms Janette Dines, Chief Executive Officer Strategic Policy and Coordination Group Corporate Division Mr Stephen Lutze, General Manager Mr Trevor Kennedy, Assistant Secretary, Financial Management and Property Branch Ms Rachael Jackson, Assistant Secretary, People and Corporate Support Branch Strategy and Delivery Division Ms Louise Glanville, First Assistant Secretary Ms Sarah Chidgey, Assistant Secretary, Cabinet and Ministerial Coordination Branch Office of Corporate Counsel Ms Maggie Jackson, First Assistant Secretary Office of Constitutional Law Mr Jeffrey Murphy, Assistant Secretary Information Division Ms Joann Corcoran, Acting Chief Information Officer 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, Executive Director Mr Stephen Arnott, Assistant Secretary, Creative Sector Development Branch Ms Stacey Campton, Assistant Secretary, Indigenous Culture Branch Mr Grant Lovelock, Assistant Secretary, Arts Partnerships Branch Ms Lyn Allan, Assistant Secretary, Collections and Cultural Heritage Branch Agencies Administrative Appeals Tribunal Mr Philip Kellow, Registrar and Chief Executive Officer Australia Council for the Arts Mr Tony Grybowski, Chief Executive Officer Mr Tim Blackwell, Executive Director, Corporate Resources Australian Crime Commission Mr Paul Jevtovic APM, Acting Chief Executive Officer Mr Richard Grant APM, Acting Executive Director Operations Ms Judy Lind, Executive Director Strategy & Specialist Capabilities Mr Paul Williams, Executive Director Corporate Services Australian Federal Police Mr Tony Negus, Commissioner Mr Andrew Wood, Chief Operating Officer Mr Peter Drennan, Deputy Commissioner, National Security Mr Andrew Colvin, Deputy Commissioner, Close Operations Support Mr Michael Phelan, Deputy Commissioner, Crime Operations

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Australian Financial Security Authority Ms Veronique Ingram, Chief Executive and Inspector General in Bankruptcy Mr Gavin McCosker, Chief Operating Officer Mr Andrew Sellars, General Counsel Mr Robert Hanlon, Chief Financial Officer

Australian Government Solicitor Mr Ian Govey, Chief Executive Officer Mr Daryl Adam, Corporate Secretary

Australian Human Rights Commission Professor Gillian Triggs, President Mr Graeme Innes AM, Disability Discrimination Commissioner Dr Tim Soutphommasane, Race Discrimination Commissioner

Australian Institute of Criminology Dr Adam Tomison, Director (Chief Executive) Mr Brian Russell, Acting Deputy Director Corporate and Chief Finance Officer

Australian Law Reform Commission Professor Rosalind Croucher, President Ms Sabina Wynn, Executive Director

Australian Security Intelligence Organisation Mr David Irvine, Director-General of Security Ms Kerri Hartland, Deputy Director-General

Creative Partnerships Australia Ms Fiona Menzies, Chief Executive Officer CrimTrac Mr Doug Smith, Chief Executive Officer

Mr Lee Walton, Chief Information Officer Ms Nicole Mayo, Chief Operating Officer Family Court of Australia Mr Richard Foster PSM, Chief Executive Officer

Mr Grahame Harriott, Chief Finance Officer Federal Circuit Court of Australia Mr Richard Foster PSM, Chief Executive Officer

Mr Grahame Harriott, Chief Finance Officer Mr Steve Agnew, Acting Deputy Chief Executive Officer Museum of Australian Democracy at Old Parliament House Ms Daryl Karp, Director

Mr Andrew Harper, Deputy Director, Business Operations and Heritage Mr Steven Fox, Deputy Director, Audience Programs and Partnerships Office of the Australian Information Commissioner Professor John McMillan, Australian Information Commissioner

Mr Timothy Pilgrim, Privacy Commissioner Dr James Popple, Freedom of Information Commissioner Ms Alison Leonard, Assistant Commissioner Corporate Support and Communication Office of the Commonwealth Director of Public Prosecutions Mr Robert Bromwich SC, Director Ms Stela Walker, Deputy Director, Corporate Management

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Office of Parliamentary Counsel Mr Peter Quiggin PSM, First Parliamentary Counsel Mr John Leahy PSM SC, Principal Legislative Counsel Ms Susan McNeilly, General Manager and Chief Finance Officer

Screen Australia Mr Graeme Mason, Chief Executive Officer Committee met at 09:00. CHAIR (Senator Ian Macdonald): Good morning, ladies and gentlemen. I declare open this public hearing of the Senate Legal and Constitutional Affairs Legislation Committee. I welcome Senator Birmingham, who is filling in very temporarily while Senator Brandis is on his way from the airport. I also welcome Mr Wilkins, the secretary of the department. This obviously is the first meeting of this reformed committee. These are supplementary budget estimate proceedings, and the agencies heard during these estimates are only those which have been nominated by the members of the committee and other senators. The Senate has referred to the committee the particulars of the proposed expenditure for 2013-14 for the portfolios of the Attorney-General and of Immigration and Border Protection, and other related documents. We have set Thursday, 16 January as the date by which answers to questions taken on notice are to be returned. The committee has also decided that written questions on notice should be provided to the secretariat by senators by close of business on Monday next, 25 November.

Under standing order 26, the committee must take all evidence in public session. This includes answers to questions on notice. Officers and senators are familiar with the rules of the Senate governing estimates hearings. If any assistance is needed, the secretariat has copies of the rules. There is an order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised, which I now incorporate in Hansard.

The extract read as follows— Public interest immunity claims That the Senate— (a) notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate; (b) reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate; (c) orders that the following operate as an order of continuing effect: (1) If: (a) a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and (b) an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee, the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document. (2) If, after receiving the officer’s statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister. (3) If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document. (4) A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence. (5) If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate. (6) A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.

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(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)

Attorney-General's Department

[09:02] CHAIR: I first of all call officers of the Attorney-General's Department in relation to outcome 2, and officers from the Australia Council for the Arts, Screen Australia, Creative Partnerships Australia and the Museum of Australian Democracy. I think we are going to deal with them as they are listed on the program, but the others are in the chamber in case we need them or we call them early. Senator Birmingham, do you want to make an opening statement at this stage?

Senator Birmingham: Thank you, Chair. Only to extend the profound apologies of Senator Brandis, who assures me he will be here within the next few minutes. CHAIR: Okay. Do you know if Senator Brandis wanted to say anything when he arrived?

Senator Birmingham: I suspect not. CHAIR: Okay. Anyhow, we might afford him that opportunity when he does arrive. Senator SINGH: I want to start by asking some general questions to the department, particularly the Ministry for the Arts, in relation to staffing. Firstly, what is the full-time equivalent staff establishment of the Ministry for the Arts and the associated agencies—I understand you may not have the full detail, but even if it is since the May budget? Its associated agencies are obviously the Australia Council, Screen Australia, Creative Partnerships Australia and the museum. Mr Wilkins: Could I just preface my remarks, Mr Chair, by congratulating you and your colleagues on appointment. We look forward to working with the committee on a number of issues. CHAIR: Mr Wilkins, I am sorry. You just remind me that I perhaps should have asked you if you would like to make an opening statement. Mr Wilkins: No, except to say that we welcome the opportunity to work with the committee. It has been a constructive relationship in the past. We look forward to that continuing. Senator Singh, you might just elaborate on what agencies, exactly, you mean. So the ministry in the department? Senator SINGH: Yes, the ministry in the department; so if we could start with that. Mr Wilkins: Right. Ms Basser: Senator, I am Sally Basser, Executive Director of Ministry for the Arts. The current staffing of the Ministry for the Arts is around 113 full-time equivalent. Senator SINGH: The government announced that it plans to cut the Public Service by 12,000. What are the mechanisms that you will use to meet the government's job-cuts target in the Ministry for the Arts? Mr Wilkins: The Ministry for the Arts is part of the Attorney-General's Department. You are actually beginning now to ask the stuff that we were anticipating might come at 9:15 tonight, but I am happy to answer that question in general terms. First of all, the way in which the effort, in relation to the allocation of a savings of 12,000 equivalent-full-time staff across the public sector, is to be actually dealt with has not yet been finally determined by central agencies and by the government, so I cannot answer that question, exactly. But I have said to my staff and it remains, I think, important to reiterate that we believe, as far as possible, those numbers can be attained through natural attrition and, in some cases, through the offer of voluntary redundancies. The Ministry of the Arts is not being singled out as a particular area of the department, it is just a part of the department for these purposes. If I can just repeat, the object is to do it through the processes of natural attrition and voluntary redundancies, if that is possible, and of course there are a whole range of other structural changes that might be made to render the department, and the way it operates, more efficient within the envelope of the

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reduction in terms of staff numbers. But the actual allocation to various departments and agencies has not been made. Senator SINGH: So you have not been given any date by government, in the anticipation that these cuts will be coming, as to when you need to start actively looking at either voluntary redundancies, forced redundancies or how the department is going to meet that figure. I acknowledge, Mr Wilkins, that we are dealing now with this in a whole, whereas we are supposed to be looking at the Ministry of the Arts. I was particularly asking about the Ministry for the Arts but I can understand that you answer it as a whole department.

Mr Wilkins: You will understand, Senator, that the former government required a significant higher productivity dividend and the 12,000 equivalent-full-timers on top of that requirement. We are talking about a sort of double-barrelled requirement. It is fair to say that any prudent secretary, as I am, would be taking steps, irrespective of the allocation of the 12,000, to think about what contingencies one might take. As I explained to you, I am looking at using natural attrition and, as far as possible—and my projections show this should be possible—the use of voluntary redundancies as well. That may need to be revised, in terms of the effort required, but if I extrapolate from the 12,000 what that might mean, I can give you a rough figure about what it might mean for the department as a whole.

Senator SINGH: That would be good to have. CHAIR: Senator Singh, can I interrupt you just for a minute. I am sorry, many of us are new to this committee, so—and I will come straight back to you—can you just explain whether it is the Department of Attorney-General and the Arts? Can you explain where the Arts comes into it? Mr Wilkins: Let me explain, Mr Chair. It is the Attorney-General's Department and a part of the Attorney-General's Department. There are a number of different divisions and components of the Attorney-General's Department. For example, you will be talking to the people who deal with national security later this evening. You will be talking to Emergency Management Australia later this evening. They are parts of the department. The Ministry for the Arts is, in the same way, a part of the department. It has been integrated for administrative purposes into the department. It is given a separate identity because it is an important piece of policy that has not been, in the past, integrated into the department. That is a matter of giving it profile and giving it identity in its own right. But, essentially, it is part of the Attorney-General's Department. CHAIR: Is it called the Ministry for the Arts Division? Mr Wilkins: No, it is called the Ministry for the Arts in the same way as Emergency Management Australia is called Emergency Management Australia. You can think of it, if you like, as a division. I have not called it a division. It is a component of the department. CHAIR: Is Senator Brandis the Minister for the Arts? Mr Wilkins: Yes, he is, but that is a ministerial designation. The people who service him for that purpose are in the Attorney-General's Department, and they are known as the Ministry for the Arts in the Attorney-General's Department. CHAIR: Thank you for that. Senator SINGH: Where did the decision come from to call it the Ministry for the Arts as opposed to the Office for the Arts? Mr Wilkins: It was something that the minister agreed to and which I recommended to him. Senator SINGH: I return to staffing in the Ministry for the Arts and its associated divisions. I think we have been given a figure, Ms Basser, on the Ministry for the Arts. There are obviously other staffing numbers in various divisions. I would appreciate it if you could go through those divisions and provide those staffing numbers as well. Mr Wilkins: I am sorry, you might have misunderstood what I just said. The number of people in the Attorney-General's Department who were in the Ministry for the Arts who came across is about, as Ms Basser said, approximately 113. The other agencies that you are referring to are not part of the Attorney-General's Department, and that is why I was asking that you list the other agencies that you were talking about. Senator SINGH: The other divisions I was talking about include the Australia Council for the Arts. Mr Wilkins: That is not part of the Attorney-General's Department. That is a separate statutory authority. Senator SINGH: They are questions I will ask them directly. That is not a worry.

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Senator MARSHALL: I am not clear now. The Ministry for the Arts is a section of the Attorney-General's Department, but are there other parts of what we would know as the Ministry for the Arts under the minister that are not covered by you?

Mr Wilkins: No. In the Attorney-General's Department proper there is the department that directly services that minister and deals with policy, and then there is a whole bunch of agencies like ASIO, the AFP, AUSTRAC, the Human Rights Commission—

Senator MARSHALL: We are just talking about arts. Mr Wilkins: In arts, the Ministry for the Arts in the Attorney-General's Department services the minister, and then there are a whole range of agencies outside, including things like the galleries or the library and the museums. Senator MARSHALL: Are they not run by the Ministry for the Arts, though? Mr Wilkins: In a sense, they have the same relationship with the Ministry for the Arts as the department has with ASIO and the AFP. We have some responsibility for their budget, we have some responsibility for advising the minister in relation to appointments, we have some responsibility for overall policy and we have some responsibility for the legislation under which those organisations operate. That is the relationship. The ministry works to the minister and gives him advice on those matters. Is that any help? Senator MARSHALL: How many departments of the arts have we got? Mr Wilkins: You have got one department of the arts. But you have got a number of agencies, senator, like the art gallery. Senator MARSHALL: But they do not report back through the Ministry for the Arts. Mr Wilkins: For some purposes they do. Senator MARSHALL: Is there an organisational chart? Mr Wilkins: Sure, there is an organisational chart, but this is just Administration 101. I mean, there are departments of state, and there are agencies that actually report through the department of state to the minister. Senator BIRMINGHAM: Many of which are statutory authorities and, of course, have their reporting lines outlined in those statutes. Senator MARSHALL: It would be good if there were an organisational chart that might clarify it. Mr Wilkins: The minister has 33 agencies that I am responsible for, in a sense, from the Australian Human Rights Commission and the Australian Law Reform Commission to now the library and the galleries. They all report up to the minister, and they have varying levels of independence from oversight by the department. But the department coordinates these activities. That is the way it works, senator. Senator MARSHALL: So if Senator Singh were actually asking about how many people are employed under the umbrella, that covers the arts? Mr Wilkins: That is— Senator MARSHALL: You would have to add all those things up for us. Who can answer that question? Ms Basser: We would need to take that on notice. Mr Wilkins: We will take that on notice and give you the answer. Senator SINGH: Ms Basser, you are suggesting for today's purposes of estimates that you are requesting me to ask each division that question rather than you provide it? Is that correct? Mr Wilkins: No. That is a matter for you, Senator. Senator SINGH: I have asked you the question and you have said you cannot answer it. Mr Wilkins: I have taken it on notice. Senator SINGH: Have there been any new appointments since the election to the ministry for the arts? Mr Wilkins: No, Senator, Senator SINGH: Have any of the officers in the ministry for the arts been seconded to the minister's office or the office of the parliamentary secretary? Mr Wilkins: There was a person seconded to the minister's office for a short period as an adviser, which is the normal transitional arrangement. Senator SINGH: That is no longer the case? Was it a temporary appointment?

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Mr Wilkins: No, that is no longer the case. Senator SINGH: So there are no other officers that have been seconded? Ms Basser: No. Senator SINGH: I am happy to move on from staffing. CHAIR: At this juncture, we welcome Senator Brandis. Senator, did you particularly want to say anything as an opening statement? It is not quite at the opening, but the committee is happy to have you do it now if you want to say something.

Senator Brandis: I do not want to make an opening statement; I merely want to apologise for my lateness. I was at an arts portfolio function in Melbourne last night and it is the soonest flight I could get on. So I apologise. I did not mean any discourtesy to the committee in being late. Senator Macdonald, I congratulate you on your election as the chair of this committee.

CHAIR: Thank you. Senator Seselja has some questions on this area. Senator SESELJA: I would like to follow up on one of the answers Mr Wilkins gave to, I think, Senator Singh's questioning on the efficiency dividend. You talked about the efficiency dividend that was put in place by the former government. I would like you to outline what impact that has had on staff or what efforts are made to deliver that efficiency dividend without it impacting on staff. Mr Wilkins: As I said to Senator Singh, in respect of the efficiency dividend required of the former government and the prospective cut of 12,000 public servants by the current government, the strategy that is being adopted is the same, really, in both cases, and that is to attempt to do this through a process of natural attrition on the one hand and targeted voluntary redundancies on the other. That is really the process that we hope and expect will be able to achieve both of those things. Senator SESELJA: In terms of that efficiency dividend aspect, what efforts are being made to find savings in other areas of departmental expenditure other than on staff costs? Mr Wilkins: I might ask Ms Glanville to answer that question. Ms Glanville: The department has had in place for some time a centralised recruitment process. What that means is that, any time there is a vacancy, we look at that particular role centrally and determine whether it is one that is needed by the organisation or whether it is one that can be refined in some way. As part of that, we also consider whether there are any other means of undertaking that work. So the centralised process ensures that we contain very thorough controls over the processes of appointment. They are clearly made when they are needed, but the centralised processes assist us with that process as well. Senator SESELJA: So what has that process meant for staff numbers in, say, the last 12 months? Has there been a reduction or an increase, or has it stayed roughly flat? Ms Glanville: I think, as in our annual report, our staff numbers have actually increased, but that is due to both the royal commission into sexual abuse and the Defence Abuse Response Taskforce. I can certainly get you the exact figures on our numbers. It is still a work in progress, as you would appreciate. Senator SESELJA: Sure. CHAIR: You were talking to Senator Seselja about the department as a whole there, were you? Mr Wilkins: Yes. CHAIR: In the Ministry for the Arts, what has happened? There are 113 employed there now. Can you indicate what it might have been a couple of years ago, say? Mr Wilkins: I might ask Ms Basser to explain that. It has been wandering around in various departments for a while. I am not sure. Can you answer that? Ms Basser: A couple of years ago I would say it was probably around 170 or 180 FTE, but I would need to take that on notice. But that is approximate. CHAIR: Perhaps I should be a bit more specific. In the last two full financial years, could you just give me the figures in the arts area—the equivalent to what is now the Ministry for the Arts—just for comparison's sake. Ms Basser: I will need to take that on notice and look up those records. CHAIR: Yes. Mr Wilkins: We could probably come back a bit later today on that if you like. CHAIR: All right, that would be great.

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Senator SINGH: The national cultural policy obviously was a great accomplishment of the last government, and the May budget included a record amount of funding for Creative Australia. Have you provided an incoming brief to the government updating the progress of Creative Australia's implementation?

Mr Wilkins: I will get Ms Basser to answer that question. Ms Basser: We provided an incoming government brief that outlined progress in a whole range of areas, including areas where funding was provided under the national cultural policy. Senator SINGH: Can you provide the committee with a copy of that brief?

Mr Wilkins: No. Senator SINGH: Why is that? Mr Wilkins: Because I think it is of a confidential nature. It is the type of document which is provided on the basis of transition to government in a Westminster system. There has been an FOI request made for a number of these documents. The view has been taken that it is of the essence, in terms of orderly government, that these types of briefs should remain confidential. Senator SINGH: Yes, we will get into the FOI requests a bit later on that matter, but I would like to know how the implementation of this policy is progressing. Can you provide the committee with an update on that, Ms Basser? Senator Brandis: Senator Singh, when you say 'this policy', the policy is the policy of the previous government, not the policy of the current government. As I made clear when I was the shadow minister during the election campaign, while there are significant elements of the national cultural policy that the new government endorses, we do not necessarily endorse all of it, and we have our own views and priorities in this sector, which will be announced in the course of time. Senator SINGH: It is those changes that I am asking about. That is exactly why I am asking the question. Senator Brandis: Yes, and my response to you is that the government's initiatives in this sector, and any departures from the previous government's policies for the sector, will be announced in due course and are currently under consideration. Senator SINGH: There are a number of programs and areas that were funded under Creative Australia. I can go through the entire list, but it might take us a while. But what I want to know is whether those particular programs—like the Flying Fruit Fly Circus, the Australian Youth Orchestra and the Australian Ballet School, which I am sure you would include in your list, Senator Brandis—are going to continue to be funded. Senator Brandis: The new government has made no decisions to stop the funding of any currently funded recipient. But, as you may be aware, funding decisions are made on a periodic basis in particular funding rounds for periods of time. I would not want any of the stakeholders in the sector to be alarmed by the tone of your questions that any decision has been made to no longer fund them, because that is not the case. Senator SINGH: I do not think they would be alarmed by the tone of my questions; I think they would be looking at the answer provided to this committee which said that the new government does not accept all of the policy of Creative Australia. That is where the alarm— Senator Brandis: There is no need for alarm. I want you to listen to me very carefully, because I do not want there to be any misleading of the sector. This is the position: the new government has its own priorities for the sector. These were announced in the election campaign in a broad thematic way and will be announced with particularity in the course of time. To a significant degree, but not in its entirety, the new government accepts and will continue what the previous government announced in its national cultural policy. But the national cultural policy was the policy of the former government, the government which was defeated and removed from office at the election; it is not the policy of the new government, the government which was elected by the people at the election. However, it does not follow from that that any particular funding will be terminated—and no funding has been terminated. Senator SINGH: That does not give complete clarity. The clarity I hope would be provided now, through your answer to this committee, is that the $235 million that came to Creative Australia, of which $195 million was new money, will continue. You have made it clear that we do not know in what guise and form—because, obviously, this new government has not made a decision on what areas it likes and does not like in relation to Creative Australia—but I understand from what you have just said, Senator Brandis, that the funding component will remain. Is that correct? Senator Brandis: I would rather choose my own words. I have expressed as well as I can what the position is. I do not think you were on the front bench at the time, Senator Singh, but you may nevertheless have noticed that

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when the then opposition, during the election campaign, announced its funding priorities, there was no money taken out of the cultural sector. Senator SINGH: One would hope that that would not change, Senator Brandis. Is that what you are saying— that that $235 million will remain?

Senator Brandis: I am saying what I just said. Senator SINGH: It is a yes or no answer. Senator Brandis: No, it is not, Senator Singh. I do not want there to be any alarm or confusion or doubt in the sector when the new government went into the election campaign proposing a series of economies from which the arts sector was, in effect, quarantined. Senator SINGH: I do recall that, at the May estimates, Senator Brandis noted his concerns for Creative Australia—that it appeared to be too focused on the digital age. Have these concerns been raised again with the arts ministry or has any other direction been given concerning the digital communication component of this policy? The reason I ask that question is— Senator Brandis: We don't need to know about the reason; you need to have an answer. Senator SINGH: There is major growth in the digital part of the arts in this country, as there is in the world. I understand that you, minister, are not so much in favour of digital arts. Therefore, I would like to know from the ministry where that part of Creative Australia now finds itself. Senator Brandis: Senator Singh, the view you have attributed to me is incorrect. So the question is, in that sense, based on a false premise. In relation to the spending priorities of the new government, and the general priorities of the new government in relation to the sector, they will be revealed in decisions that will be announced in due course. Senator SINGH: So you do like digital arts, minister? Senator Brandis: It is not a question of my own tastes; it is a question of the government's priorities. You have put a proposition which is false. Senator SINGH: So you do like digital arts? CHAIR: These are not really legitimate questions, senator. Senator SINGH: I am reading last May's estimates. I am sure the senator can let us know his view on digital arts in this country. It is a growing area. It is a growing part of his portfolio. CHAIR: And do you like blue ties, Senator Brandis, while you are at it? Senator Brandis: I do, Senator Macdonald. Senator Singh, I agree with your proposition that the digital arts are a growing area of the portfolio. Senator SINGH: I would like to move on to another part of this area. The Creative Young Stars program officially opened in June 2013. Can you advise the funding amount in the May budget and how much has been allocated thus far for this program. Ms Basser: That program is administered by the education department and those questions would need to be directed towards the education department. Senator SINGH: You have no input into this program at all? Ms Basser: We have had input into the development of it but the administration of it is by the education department. So they would have the most current statistics on that. Senator SINGH: Do you liaise with the education department on how that program is going and how the funding is being allocated across the country? Mr Wilkins: Senator, if you want answers to this, it is probably best to talk to DEEWR. We can go and find out from them and come back and tell you, but it is properly easier to talk to the department of education. Senator SINGH: I think it would be beneficial if you could find out from them and come back to this committee. I appreciate what you are saying—that it is being administered by DEEWR—but this is a program which is specifically relevant to the arts. So you would think that, regardless of its administration, there would be some interest, follow-up and liaison on this program with the Minister for the Arts. Mr Wilkins: We will go and find out, given that this will be a 'teething session' for this committee—I would not want to be going off talking to Broadband about, for example, policies that are mainly theirs. We will go and find out and come back and tell you.

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Senator Brandis: If I may offer a thought: I know Senator Singh is relatively new, but it has been the practice to ask questions in the estimates committee that deals with the administration of a particular program. As Ms Basser has pointed out, this department does not administer this program and therefore it is not really within the jurisdiction of the estimates committee. Mr Wilkins has been characteristically very helpful in offering to make that inquiry, but I would not want the practice to develop of senators who, through forgivable inexperience, ask the wrong questions in the wrong committees, imposing a burden on public servants to go and do for them the work that perhaps they should have done themselves.

CHAIR: Senator, if I had been Mr Wilkins, I would not have made the offer that he did. But he made it, and perhaps we could leave it there. I would not have done it—it is not this department—but if Mr Wilkins is going to be terribly helpful, that is up to him. Senator Singh.

Senator SINGH: I thank Mr Wilkins for being helpful. He is certainly not being patronising like the minister is being. Did the $8 million that the Creative Young Starts program was allocated come out of your department's budget?

Ms Basser: The funding was appropriated to the Department of Education. Senator SINGH: Out of the Creative Australia pool? Ms Basser: It was under the umbrella of that policy framework, but the funding was appropriated directly to the Department of Education in the last budget. Senator SINGH: Have any other agencies been involved in this program? Ms Basser: No. Senator SINGH: Okay, we cannot go any further on Creative Young Stars. Senator Brandis: We could go a lot further, but that would be in the estimates committee that administers that portfolio. Senator SINGH: We cannot go any further on that in this committee, Senator Brandis. I want to ask some questions about the Australian Arts in Asia Awards. As you would know, the Australian Arts in Asia Awards is an initiative to help foster closer links with our Asian neighbours. Do you know when the next round of applicants can apply for these awards? CHAIR: For all of us, can say whether is that in the group 1 section of the department? Senator SINGH: Yes, we are still in group 1. Ms Basser: The inaugural Australian Arts in Asia Awards were held in June-July. The continuation of those awards will be a matter of further discussion for, and consideration by, the government. Senator SINGH: Have you received any direction or prepared any advice for the new government concerning this program? CHAIR: You can tell us if you have given advice; you cannot tell us what it is of course. Senator SINGH: I did not ask that. Mr Wilkins: No, we have not really had that discussion with the minister yet. He is not really in a position to comment on that. Senator SINGH: So at this point in time you do not know if there will be any changes to these awards? Is that what you are saying? Mr Wilkins: The ball is in the department's court. We need to take it up with the new minister. We will be proposing that it continues. Senator SINGH: That is good. I now want to move to another matter, but still in the outcome 2 area— Minister of the Arts and the department. Did the department provide a brief to the former minister, Tony Burke, regarding the appointment of Barrie Cassidy as chair of the Old Parliament House Advisory Council? Ms Basser: Yes, we did. Senator SINGH: Do you have a date for when you did that? Ms Basser: We provided a brief to the former minister on possible candidates on 10 May 2013. Senator BOYCE: How many people were on that list? Ms Basser: I would need to go back and check. Senator BOYCE: Thank you.

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Senator SINGH: Would you say that was the beginning of the process for the department of reappointing a new chair to the Old Parliament House Advisory Council? Ms Basser: Yes, the usual process was to provide a brief to the former minister with a range of options for him to consider.

Senator SINGH: How long does process of appointing a new chair usually take? How many months would a process like that usually take? Ms Basser: It depends. To go through cabinet could take up to three months from beginning to completion of the process.

Senator SINGH: So this was on average, as it did take about three months. Ms Basser: Yes. Senator SINGH: Who announces board positions? Is it the department or the minister? Ms Basser: Usually the minister. Senator SINGH: When did the department advise the director of the Museum of Australian Democracy at Old Parliament House of the minister's decision to appoint Mr Cassidy?

Ms Basser: The nomination was approved by cabinet on 5 August, and I think I advised Ms Karp around that time. Senator SINGH: Around 5 August?

Ms Basser: Yes. Senator SINGH: Can you detail if the new government—the incoming government—requested a brief concerning the appointment of Mr Cassidy to the board? Mr Wilkins: What do you mean by that?

Senator SINGH: Did they request any information from the department regarding the appointment of Mr Cassidy to the board? Mr Wilkins: Yes, the minister did request a briefing on that.

Senator SINGH: On what date did he request that? Mr Wilkins: It was an oral briefing. Senator Brandis: Senator Singh, I might be able to help you here. As Mr Wilkins has just said, I requested an oral briefing after it had come to my attention that the appointment of Mr Cassidy had taken place but was unannounced during the course of the election campaign and, in fact, had been made or finalised after the election had been called. Senator SINGH: That is not correct. You know that is not correct. Senator Brandis: I had an oral briefing from Ms Karp, and I think you, Ms Basser, were present at that oral briefing. The purpose of the briefing was to inform myself about the steps that had been taken in that appointment. Senator SINGH: Following from that oral briefing, can you advise if there was a directive from the minister for Mr Cassidy to step down from that position? Senator Brandis: There was no directive to that effect. I can tell you, Senator Singh, that I did suggest that Ms Karp have a conversation with Mr Cassidy, but there was no directive that he be requested to stand down. Senator SINGH: You suggested Ms Karp have a conversation with Mr Cassidy to do what? Senator Brandis: To raise with him the unusual features of his appointment, for which of course he bears no responsibility. As I said subsequently, he was, in a sense, the victim of the bad and irregular process of the previous government. Senator SINGH: Ms Basser has just outlined that the process was the usual process—the usual three-month process. Senator Brandis: Ms Basser did not say that. Senator SINGH: Did you ask Ms Karp to talk to Mr Cassidy about him stepping down? Senator Brandis: No, I do not think those words were used. Ms Basser actually did not say that the usual process was followed. You asked her some questions, she explained what occurred and that is the conclusion you have drawn. It is not the conclusion I drew.

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Senator SINGH: No, Ms Basser said the usual time allocated to such an appointment is around three months. I have just asked you— Senator Brandis: There was the inconvenient fact of the intervention of a federal election.

Senator SINGH: You have just told this committee that you contacted Ms Karp asking her to contact the new chair of the Old Parliament House to tell him that his appointment was what? Senator Brandis: I asked for a briefing, as Ms Basser has said, and I was briefed by Ms Karp and Ms Basser.

Senator SINGH: That is not what you just said, though. You just said that you called Ms Karp and asked her to call Mr Cassidy about his appointment. Senator Brandis: I think, Senator Singh, you are confusing two issues. I asked for a briefing. I had a briefing from Ms Karp and Ms Basser. During the course of that briefing I suggested that Ms Karp have a telephone conversation with Mr Cassidy.

Senator SINGH: To discuss what? Senator Brandis: To discuss the circumstances of his appointment. Senator SINGH: In the hope of achieving what? In the hope of him stepping down? Senator Brandis: Senator Singh, I have been very generous in giving you more information than would usually be given, frankly, about a briefing from public servants or the head of an agency to the minister. But I wanted to do that because I want to refute the suggestion that I have seen in the media that I gave an instruction that Ms Karp was to instruct or to request that Mr Cassidy stand down. Mr Cassidy, as you know, did stand down. He stood down after a conversation with me—not after a conversation with Ms Karp.

Senator SINGH: On what basis do you believe Mr Cassidy stood down—because it was following a conversation with you? Senator Brandis: It was. I can tell you, Senator Singh, that I expressed to Mr Cassidy concerns about the process, and I also expressed concerns about the fact that as a working political journalist, he would be in a position—quite appropriately—to be a commentator and potentially a critic of the government. I said to him words to the effect that he would not be doing his job if he was not a commentator on, and potentially a critic of, the government, and that I thought that that raised certain difficulties in his being the chair of an agency which was apolitical. I said to him that I preferred to have on the board of agencies of that kind, people from the political process, or whose background was in the political process, whether as members of parliament or as journalists or whatever, but who had, as it were, retired from the political fray.

Now, that is not the ipsissima verba, but that is the substance and effect of what I said to him. Those were the two points I made to him. He said to me, 'Are you asking me to resign?' I said 'No, I am not asking you to resign; I am pointing out to you the difficulties I see in this position, and I am asking you to consider your position.' And I said, 'I want to make it perfectly clear to you that this is your decision.' Mr Cassidy—after we had had a very cordial conversation that went for some 10 or 15 minutes, I think—reflected upon what I had said, and he said to me, 'I will resign.' I assured Mr Cassidy that there was no reflection on his reputation, and I thanked him for his willingness to serve, but I am reasonably sure I did say to him, when he offered to resign, that I thought, in all the circumstances, he had done the right thing.

Senator SINGH: Yes, I am aware of some of what you have just shared with the committee, as Mr Cassidy said something in an article in the Australian. In that he said, 'The minister explained to me'—and I am paraphrasing here—'that it is not appropriate to have anybody currently involved in the political process, be it journalist or politician.' You have just shared that with the committee, but clearly, in saying so, you did not really leave him much choice but to resign. So my follow-on question—

Senator Brandis: I am not going to— Senator SINGH: I am about to ask the question, Senator. I have not asked the question yet. Senator Brandis: I am not going to have attributed to me something that is not correct. I made it perfectly clear that ultimately— Senator SINGH: I have just repeated what you said. Senator Brandis: this was Mr Cassidy's call, but I did say to him that from my perspective, for the two reasons I have just given, I did foresee difficulties. And, Senator Singh, you are right that it is my view that in a position of this kind—this does not of course apply to all positions across the government, but to this particular institution—I thought that for people who were, as it were, protagonists in the political fray, whether it is politicians or working political journalists, it was very

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difficult to bring to the position what I expected to be brought to it. That is no reflection whatsoever on Mr Cassidy. If he had been a retired journalist we would not have been having that conversation. Senator SINGH: Does the resignation of Mr Cassidy from this board, on the basis that you have the view that it is not appropriate to have anybody currently working in the political process, mean that there will be no appointments similar to that of Janet Albrechtsen's appointment to the ABC board, under the Howard government? Because that is the benchmark you are setting.

Senator Brandis: No, it is not— Senator SINGH: Yes it is. Senator Brandis: That is why I was at pains to explain to you that I take a particular view of this particular institution, the Museum of Australian Democracy, and let me explain why— Senator SINGH: This was an honorary position. Senator Brandis: Let me explain why. The fact is that the board of the Museum of Australian Democracy has traditionally, under governments of both political persuasions, been largely, though not exclusively, comprised of people who one would describe as political people—in other words, people who have had their careers in politics. At the moment on the board there are several former Labor members of parliament, including Mr Graham Edwards, the former member for Kalgoorlie, and former Senator Susan Mackay, a former Tasmanian Labor senator. There is also former Liberal senator Paul Calvert, a former President of the Senate. So it is the peculiarity of this board that, because of the nature of what it is, it comprises people who have largely had their careers in politics. How do we resolve the paradox of having a board of an institution that must be above politics and non-political and non-partisan comprised largely of people whose careers have been in politics? That is a paradox to which my answer is that we appoint people who have come to the end of their careers in politics, whether it is as politicians or as working political journalists. The considerations that apply because of the peculiarities of this institution do not necessarily apply to other institutions. Senator SINGH: So, are you saying that the ABC is less apolitical than this current board. CHAIR: That is not a matter for this estimates committee. Senator SINGH: There are double-standards here. CHAIR: It is not a matter for the— Senator SINGH: Senator Brandis is saying that he does not want anyone currently involved in the political process on the board of Old Parliament House— Senator Brandis: Correct. Senator SINGH: An institution, an organisation, that looks after the heritage, the public access and the history of an amazing building in this country. Yet he is saying that it is okay for a very active political journalist to be on an ABC board. There lies the paradox. Senator Brandis: I do not administer the ABC, but I do have a particular view of this institution that is peculiar to it, because of its uniqueness. If I can use a metaphor, just as the Old Parliament House is, as you say, a heritage institution, it is a building that has retired from being the parliament house, so it seems to me appropriate that those who conduct its affairs should be people who have retired from being active in the political process. Lastly, if I could correct something you said, what constitutes active involvement in the political process is a question of degree. What I said to Mr Cassidy is 'politicians or working political journalists', because it seemed to me that those are the two categories of people who are most obviously active in political controversy, either as protagonists or commentators. I would not want you to think that it is my view, because it is not my view, that I would regard as unsuitable anybody with any remote association with the political process, because I do not. But if you are a protagonist, either as a practising politician or as a currently involved and engaged working political journalist, I think people who fall into those two categories, and only those two categories, are not the people I would look to for that particular board. Senator SINGH: So this is not something you are saying applies across all government boards of this government. Senator Brandis: Correct. Senator SINGH: It is just Old Parliament House. So it is all right for Janet Albrechtsen to sit on the ABC board again, is it?

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CHAIR: Senator Brandis made it clear he does not administer the ABC or the communications departments. I think we should confine ourselves to questions on this department. Do you have more questions? Senator SINGH: Yes. I find it very peculiar that the minister has just chosen this particular board, following the appointment of Barry Cassidy, which did go through due process and proper process. And to then—

CHAIR: I think the minister has been— Senator Brandis: I do not accept that, so you should not assert that as a given, because it is not. In fact— Senator SINGH: Well, it is a given— Senator Brandis: It is one of the two bases—we have discussed the second of the bases I mentioned. The lack of proper process is actually one of the two reasons I took the position I did. But, Senator Singh, may I say that I hope as the senate shadow in this portfolio you do come to learn and take in the different nature—

Senator SINGH: Senator, I used to be an arts administrator, so my background in the arts has a long history— Senator Brandis: That is great—

Senator SINGH: I do not need you to sit here and be so patronising. Senator Brandis: I am just trying to be helpful— Senator SINGH: You may have gotten away with that when you were in opposition, but you are not going to get away with that with me. Senator Brandis: You will find, just like Mr Wilkins, Ms Basser and Ms Glanville, that everybody at this table will be merely striving to be helpful. Senator SINGH: In a peculiar way. Let's move on to the Australia Council.

Australia Council

[9:58] CHAIR: Welcome. Senator SINGH: Can you advise how much funding was allocated for the Australia Council in the 2013-14

May budget? Mr Grybowski: The total figure? Senator SINGH: Yes. Mr Blackwell: It was $218 million in government appropriation. Senator SINGH: Are you aware of any funding changes that may be coming forth from the new government,

specifically in relation to the $75.3 million over four years that was assigned to the Australia Council for some specific funding areas that were announced as part of the last budget? Mr Grybowski: We are not aware of any changes to that additional appropriation. Senator SINGH: So, the $15 million for arts organisations is still in your budget?

Mr Grybowski: I think the $15 million you refer to is under the banner of 'unfunded excellence', and that is in the appropriation. Correct. Senator SINGH: Can you provide an update on how the implementation of some of those new programs is progressing—like the one you just outlined, but there are four I think? There is the $1 million per annum to help the council develop formal programs of professional development for the arts sector, and there is another one for data collection systems and the like.

Mr Grybowski: Yes, there were a number of budget measures to enable us to either expand or put new programs into place. The first one, under the 'unfunded excellence', was to increase the success rate from individual artists or groups of artists who were previously applying through our art form boards. Those additional monies were allocated across the art form areas from 1 July and continue to be assessed by our peer panels on the normal schedule of activities this year. That is the first one.

There is a budget measure for capacity building, to increase the range of training leadership programs for arts administrators, but also to expand that program to provide assistance to our artistic leaders—choreographers and others—working in the arts sector.

The third area was the research area. The Australia Council had a research area. This was to be expanded so that we could develop an annual state-of-the-arts report that would provide some established measures and provide aggregate data from other data that was being collected across the sector—for example, from the

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Australian Bureau of Statistics—so that next year we will be able to release an annual report of the state of the arts in the country. Senator SINGH: When do you hope the first one of those reports might be available? Mr Grybowski: We are currently recruiting the appropriate staff to do this. We will release the process and

consult with some key people in the sector in the first quarter of next year, and we expect the actual first report to be done in the second half of 2014. Senator SINGH: Is that the first time something like that would have been published? Mr Grybowski: Yes, it is. There is obviously a lot of data collected and a lot of analysis. What we are trying

to achieve is a single report that will give a picture of the arts, both in an agreed data set and also to provide a narrative, and, over time, establish some trends that are occurring. Senator SINGH: Will that be state by state, and for the territories? Mr Grybowski: It will be national and then will be broken down into various categories across states, reach

and also our international reach, and by art form area. Senator SINGH: Are there any other programs? Mr Grybowski: There are a number of other projects that came from the recommendations of the Australia

Council review. We are overhauling our grants system. Again, we are operating under the previous grants structure, but the goal is to have a more streamlined, clear process. In the first quarter of next year we will propose the new grants structure to the sector and those key people within the industry and test the new model, and then that will be implemented. It will be rolled out in the second half of 2014, to be fully operational from 2015. Obviously we are offering grants to artists and arts organisations of Australia, so it is very important that there is stability and business as usual while we implement these reforms in a timely fashion.

We are also overhauling our peer assessment process—this element of our work that the best artists from all practices and from all parts of the country are included in the register of experts who assess our grants. We are about to do a public callout for nominations to be assessed to go into the pool. That will be operational from 1 April 2014.

Senator SINGH: Has all of the restructuring that has gone on this year been welcomed by the sector? It has been a long time since the Australia Council has had any restructuring at all. Mr Grybowski: It has. There was extensive consultation throughout the independent review, which was undertaken by Gabrielle Trainor and Angus James. There were many submissions. It has been well received. There was a strong message that the Australia Council needed more flexibility and needed to be more responsive to the art sector and needed to expand the number of peers who were making the grant decisions. It has been well received. Obviously, we continue to communicate with the sector about these changes. Any changes that we are implementing are the result of consultation with the sector to ensure that they are appropriate.

Senator SINGH: Can you advise if the new government has signalled to you any changes that it may want to make to the new structure of the Australia Council? Mr Grybowski: No.

Senator SINGH: Can you update the committee on— Senator Brandis: Senator Singh, I would like to add to Mr Grybowski's answer. His answer is correct. But during the election campaign at a Q and A somewhere, this was said to me: 'Senator Brandis, you were critical of the changes to the Australia Council structure in the legislation that went through the last parliament. Are you going to change it back to the way that it was or address the criticisms that you made during the parliamentary debate?' My answer was, and it is as well to put this on the public record, is that we are not. Notwithstanding the misgivings that I had at the time and that I raised in the parliamentary debate, the fact is that the legislation was changed. I do not think that it would be useful or serviceable to the sector to reinvent the wheel as it were. The previous government had a view that the Australia Council Act should be amended. That was controversial. But that legislation was passed. It is not my intention to revisit that. Senator SINGH: That is pleasing, Senator Brandis. That is something that we agree on: that you should not restructure the restructure. The Australia Council is working very well. Could you update the committee on the board members of the Australia Council. Mr Grybowski: Yes. The board came into being on 1 July. Those appointments are for between two and three years. The board has met on three occasions, including at a strategic planning session that we held this previous

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weekend. The board has been inducted and are very engaged in the process and obviously in steering these reforms through over the period ahead. There are currently no vacancies. Senator SINGH: I understand that Senator Brandis was quite vocal on the appointments to this board when they were announced. Have you any reason to believe that the government will signal changes to the board membership?

CHAIR: I am not sure that that is a fair question to the officer. Senator SINGH: I will put it a different way, Chair. Senator Brandis: The government has a— Senator SINGH: Will any of the appointments be cut short? Senator Brandis: Perhaps the most helpful response to your question is to say that indeed at the time I expressed misgivings about some, although not all, of the appointments. They seemed to me to reflect a narrower view of the credentials of the appointees than I would have taken. Most particularly, I remember saying at the time that effectively none of the members of the board came from regional Australia and there was a predominance of people from Sydney and Melbourne. If I had been making the appointments at the time, I would have sought to include a wider variety of Australians on the board. That having been said, the government inherited this board. The board is as it is.

CHAIR: Who is on the board? Can you tell me? Mr Grybowski: Sure. The board is chaired by Mr Rupert Myer. The deputy chair is Robyn Archer. I sit ex officio on the board. Mr Waleed Aly, Lee-Ann Buckskin, Adrian Collette, Khoa Do, Professor Matthew Hindson, Mary-Ellen King, Sophie Mitchell, Sam Mostyn and Tim Orton are the other members. CHAIR: Just following up the point made by Senator Brandis , are any of those either resident of or associated with activities outside of the capital cities? Mr Grybowski: A large number of them. Our deputy chair, Robyn Archer, regularly performs and has other activities right across the country. CHAIR: Excuse my ignorance: what does she perform in? Mr Grybowski: Robyn Archer is a singer, a cabaret performer, a commentator and an artistic director. Senator SINGH: Did you say that Waleed Aly is on the board. Mr Grybowski: He is. Senator SINGH: He is a working journalist, isn't he? Mr Grybowski: He is. Senator SINGH: Senator Brandis, is it all right to have Waleed Aly on the Australia Council board? Senator Brandis: I do not want to reflect upon— Senator SINGH: It is just a question. Senator Brandis: Then let me answer it. I do not want to reflect on individuals. All of these people have agreed to serve, and that is a good thing. But the views I expressed at the time are views to which I adhere. I was at pains to point out more than once in answer to your previous question that the view that I took about protagonists in the political process, specifically politicians and working political journalists, was a view that I took about the board of the Museum of Australian Democracy at Old Parliament House because of the unique nature of that institution. I would not consider a working journalist to be, for that reason alone, an unsuitable appointee to the board of the Australia Council. Senator SINGH: How long are the terms for these positions on the Australia Council board? Mr Grybowski: They are a mixture of between two and three years. Some of the members were reappointed from the old Australia Council board, and they have the shorter terms. The new appointments were for three years. Senator SINGH: Thank you. The Australia Council are doing a very good job. You have a very talented board to work with. CHAIR: Before we leave that—and I do not want you to go through it now, but you can take it on notice— could you finish your answer. You mentioned one person with extensive service in regional Australia. I would like to—

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Senator BOYCE: Chair, I do not think that the fact that people perform outside the capital cities gives them a regional expertise. Regional expertise is more the criteria that we are looking for. CHAIR: Yes. Do both.

Mr Grybowski: Sure. I will provide some further details. Senator Brandis: What I discovered, and this was the basis of my criticism, is that of the members of the board only one had a residential address outside the capital cities and that person, whose residential address was in Geelong, had a business address in the Melbourne CBD. I do not for a moment doubt that at least some of the members of the board have a familiarity with regional Australia, but none of them, as far as I could see, come from regional Australia. CHAIR: As there are now other questions for the Australia Council of the Arts, thank you very much for your attendance, gentlemen. You are excused.

Screen Australia

[10:14] CHAIR: I welcome Screen Australia. Mr Mason: I am the new chief executive officer and I would ask for the committee's sympathy if I am not

able to answer all of its questions. I have been in my position for five days and in Australia for about 10 this time round. I may need the help of my colleagues than at other times in the future. Senator SINGH: Welcome, Mr Mason, and welcome to your new appointment. Now you are working under a new government, have Screen Australia been advised to implement the local film production policies of the coalition that were detailed in their 2010 policy document. The minister may be able to correct me, but I could not see any newer policy document that came forth in the new election. Have you been advised to implement of those policies?

Ms Cameron: I am not sure which particular policies that you are referring to. Senator SINGH: It was called The local film production policies of the coalition. There was $60 million for a temporary funding boost in that policy. That document was put out by the coalition three years ago now. There has not been anything more recently. I want to see where that currently lies, considering that there is a new government and that that was their policy. CHAIR: You may not be in a position to answer about some policies that were around three years ago. Feel free to reject the question if you like. Mr Mason: At this point, we have not. Senator SINGH: Have you been advised at all by the new government about what its policy direction is for Screen Australia and for film production. Senator Brandis: Mr Mason has been in the job for five days. I have not yet had the opportunity to sit down with Mr Mason and have a talk with him. But I am sure that Mr Mason, because of his knowledge of the sector, would be aware of the generosity of the coalition government towards the film sector, most particularly dating from 2007 when producer offset and the location offset were introduced by me in the last year of the Howard government, which have been welcomed by the sector in very, very fulsome terms. One thing that I can tell you, Senator Singh, that I did say during the election campaign is that, were the coalition to be elected, the new government would keep those thresholds under review. Senator SINGH: Okay. You may be able to elaborate on that, Minister. The coalition election arts policy from that 2010 was to improve the producer offset to better support cash flow for screen production. That included introducing a $60 million temporary film production fund, which would expire after five years, to boost investment in new films and to refocus Australian film production on commercial outcomes. It is that $60 million that I want to about, as well as the actual policy. Where is that $60 million coming from? How is it going to be administered? Senator Brandis: Senator Singh, that was, as you say, a 2010 election policy. You will need to wait for the budget process to work its way through to see where all this lands. Senator SINGH: You have a good understanding of the producer offset, because you were the minister who originally brought it in. Senator Brandis: I was, although I should in fairness say that most of the policy development work in relation to the policy had been undertaken during the tenure of my illustrious predecessor, Senator Rod Kemp. It was in the 2007 budget that the policy was introduced. It has been a very successful policy, as anyone in the

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sector will tell you. There is from time to time, because of things as variable as movements in the Australian dollar as well as competitive incentives in other jurisdictions that compete for the international film production dollar, calls within the industry to change the thresholds of the offsets. As I have said, we will keep them under review.

Senator SINGH: Keeping under review—does that mean, Senator Brandis, that you are still obviously supportive of the Producer Offset program? Senator Brandis: The Producer Offset has been the policy—introduced by a Liberal government, continued by a Labor government, continued by the newly elected Liberal government—since I introduced it in 2007. I am not aware that it is controversial. I think it is well received and—

Senator SINGH: It is well received. Senator Brandis: broadly supported on both sides of politics. This is not an area, so far as I am aware, of political controversy. There will always be a discussion, as there always are when one talks about concessional arrangements through the tax system, about whether the thresholds or the eligibility criteria are set at the right amount, or at the right quantum. That is why, as I have said, I undertook during the election campaign that a coalition government would keep those thresholds under review. This is a matter of very frequent discussion between spokespeople for industry and me. Senator SINGH: Are you going to put any more clarity around 'keeping the threshold under review' in your new role as the Minister for the Arts? Senator Brandis: The thresholds are as clear as can be. They are crystal clear because they are a percentage figure. Senator SINGH: No, the review is the part that I am talking about, not the thresholds. Senator Brandis: What I have said is that we will keep them under review. Senator SINGH: Mr Mason, can you tell me how the digital game production sector is going and how the new Interactive Games Fund, which was allocated $20 million in the May budget, is going, and whether you are aware of any government decision to cut or redirect any of that $20 million? You may not be yet in your role, but your colleagues next to you may be. Mr Mason: I can tell you that there was no decision at all from anyone to redirect any of that money. Obviously, it is being rolled out at the moment. It is a really important part of the things that we support, because we try to support all content for screen. My colleagues can talk a bit about how it has been implemented so far. Ms Cameron: We have announced one round of Games Enterprise, which supports game companies, and we have announced one around Games Production, which supports individual projects. In total, to date, there has been nearly $8.6 million allocated to independent Australian games studios for the development of Australian intellectual property, which hopefully will help employment and original IP stay in Australia and allow Australian independent games studios to take a slice of the $80 billion world audiovisual market. Senator SINGH: This is a growing sector, isn't it? Ms Cameron: It is the biggest audiovisual growth sector in the market. Senator SINGH: The biggest audiovisual growth sector in the market? Ms Cameron: It is. Senator SINGH: That is in Australia and around the world? Ms Cameron: And the world, it is. Senator SINGH: That would be $20 million well spent for our investment, as far as being able to leverage into some of that expanding arts area? Ms Cameron: Yes. Mr Mason: That is certainly the ambition. Ms Cameron: The independent studios were facing a number of challenges. This allows them to be competitive and to continue to develop original IP here in Australia. We have incredible independent games studio developers, including games as successful as Fruit Ninja and Ski Safari, which do very well in Australia. The idea behind this scheme is to ensure that we continue to keep original IP in Australia. Senator SINGH: One of the positives around the creation of original IP would also be that it could happen pretty much anywhere in the country. It is not something that those working in this field are necessarily confined to having to live in Melbourne and Sydney, for example. Is that correct?

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Mr Mason: That is correct. In fact, it is a thing with our sector as a whole that the means of production is much easier. Making films is much more open to people throughout the country in general. You could make them on your telephone. And with gaming, of course, people do do it in their bedrooms.

Senator SINGH: I am just thinking about my home state of Tasmania, because I know that there are those who are developing some of these games and have had such success coming from Tasmania. But the NBN is one of the factors that support being able to participate in this digital production space—game space. Do you see the ongoing rollout of the NBN as an important component of this sector?

Ms Cameron: I think high-speed broadband is very important to the audiovisual sector. Senator SINGH: Obviously in those regional parts of the country—again including Tasmania—there are still a number of people on dial-up. If they have access to fast broadband, that allows them to stay in that state or that regional area and to develop this original IP. Is that correct? Mr Mason: Correct. Senator SINGH: Lastly, I wonder whether you could provide any kind of breakdown in the last 12 months, let us say, of the range of productions—when I say 'range', I am thinking of various genres like documentary, drama and the like that Screen Australia has supported or promoted—and from which states those productions came. Mr Mason: Obviously we aim to represent stories and people from throughout the country and across various genres. That is a big mantra for us. We will take it on notice and give you a full breakdown of those that we have supported over the last 12 months. Senator SINGH: Thank you. That is much appreciated. CHAIR: I am new to this area, obviously. Does Screen Australia invest in private movie productions around the country? Mr Mason: We support the sector broadly. In film terms, yes, we are part of the process almost from cradle to grave. We support talent being developed in talent initiatives; we support them in the developmental process of script or visual development; and then we do equity investments and sometimes grants to feature films as well. CHAIR: There was a great Australian series called A Place to Call Home, which I think was a new generation of quality Australian drama, if you would call it that. Perhaps other people would call it different things. Did Screen Australia have anything to do with that? Mr Mason: We were not involved in that. CHAIR: What a pity. I was going to be fulsome in my praise. Do you, though, contribute financially to those sorts of things? Mr Mason: Yes, we do television as well. We have quite a few television series on air at the moment that we are involved in. Often we may be involved in them at the earlier stages, and once they have become successful they move on from us and to purely commercial support. CHAIR: I think you said to Senator Singh that you were going to give us a list of the ones that you have contributed to in the last 12 months, so that would be useful for understanding—perhaps for those of use who do not—just a bit more what Screen Australia does. Mr Mason: Yes. CHAIR: If there are no other questions for Screen Australia, thank you very much for your attendance. You can go and do something more productive!

Creative Partnerships Australia

[10:28] CHAIR: I now call the officer from Creative Partnerships Australia. Senator SINGH: Hello, Ms Menzies. I want to ask about how Creative Partnerships Australia is going.

Obviously it is approaching its first anniversary since being formed, I think, late last year or early this year. Can you just provide an update on how the agency is going and how it has been received by the arts sector. Ms Menzies: Sure. There is certainly a lot of goodwill in the arts sector for the work that we do, so that has been really pleasing. Obviously we are a national organisation, so we work throughout the country and we have offices in each state and territory around the country. We started in January, and I was appointed and started in February. This year, for the first time, we have been given funding to run funding programs, so that has been a large part of our work for this year—getting those established and launched. The first one of those has been

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launched and was very well received, so I think there is going to be pressure on the minister to put more money into that in future years. That has all been really good. Senator SINGH: When do you hope the next funding round will be? Ms Menzies: It is an annual funding round, so we already have funding for that for next year.

Senator SINGH: When will that process start? Is it in May? Ms Menzies: We have not made a decision on that yet. Senator SINGH: Obviously, the agency amalgamated ABaF with the Artsupport Australia. Can you advise whether there were any staffing changes when the two agencies combined to create creative partnerships? Ms Menzies: When the two agencies were combined, Artsupport had already lost a number of its staff. The CEO of Artsupport took a number of her staff with her to Philanthropy Australia, where she moved to, so there were already some vacancies when we commenced. I have not filled those vacancies, because we have been working on what our needs will be in the future. Since then we have had a couple of other people who were originally from AbaF who have also left their positions voluntarily. Those positions have not been filled either. Senator SINGH: Do you still have staff in each state, like it was under ABaF? Ms Menzies: Yes, we do. Senator SINGH: Do you have a copy of the current staff structure and the numbers of full-time equivalent? Ms Menzies: Sure. I can tell you that the full-time equivalent number is 23 currently, and I will provide an organisational chart. Senator SINGH: Are you able to detail how funding received from donors and sponsors supports the agency's scheme? How does that work? I Knew how it worked under ABaF. Ms Menzies: That we receive ourselves? Senator SINGH: Yes. Ms Menzies: The organisation in the past received gifts or investments from philanthropic trusts and foundations or individuals, which have gone towards its programs. I am wondering whether what you are referring to is the Australia Cultural Fund. Senator SINGH: I am referring to that, yes. Ms Menzies: For clarity, the Australia Cultural Fund is a facility through which donations are given to the organisation. Donors can express a preference to an artist or arts organisation they want their donations to go to. They then receive a tax deduction, because we as an organisation have tax deductable status. The money is then transferred to the artists. So artists—individual artists or small organisations—who do not have the ability to offer a tax deduction to their donors themselves can do that through us. It is a facility which is really highly valued by the arts sector. Senator SINGH: So that is ongoing? Ms Menzies: That is continuing as usual. We would like it to be more widely promoted and used. We think there is capacity for it to be even more widely used. We have a few antiquated backroom systems we would like to resolve before we do that so that we are not overwhelmed. Senator BRANDIS: If you talk about it here, Ms Menzies, it will become very widely known because everybody watches Senate estimates! Senator SINGH: How are you going with the $8.6 million over two years that Creative Partnerships Australia received? How is that going to be used? Ms Menzies: That money was tagged for specific purposes. There are three programs. The first is to run a matched funding program. That is the one I referred to earlier that has already been launched. It is under the name of Plus 1, and it has been very successful. The second specific program was to do some matched funding for funds raised through crowd funding. That is being planned and will be launched before the end of this year. The third specific area was for a program around microloans. That is also being formulated and will be launched early in the new year. Senator SINGH: That is fantastic. Has the new government asked you to implement any changes to the way Creative Partnerships has formed itself? Ms Menzies: No, they have not. Senator SINGH: Do you have any reason to believe that that $8.6 million that has been allocated over the next two years will be cut short, reduced, or taken away from you in any way, shape or form?

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Ms Menzies: No. To the contrary, I think that the minister on many occasions has stated publicly his support for the organisation and the principle of increasing private sector support to the arts. Senator SINGH: I wish you well in all the programs and the work you have ahead of you.

Ms Menzies: Thank you. Museum of Australian Democracy

[10:35] Senator SINGH: Welcome, Ms Karp. Can you advise the process of board appointments and chairs to the Old Parliament House. Ms Karp: The process is a matter for the department and the minister.

CHAIR: I think we have had that question earlier. Senator SINGH: I am just asking the question of Ms Karp. Can you advise the term of each board member? Ms Karp: The terms are currently three years. Senator SINGH: And are they all up at the same time? Ms Karp: No, they are staggered, but there are a large number coming up over the next 12 months. Senator BRANDIS: Perhaps it might be helpful if Ms Karp could run through the current membership of the board? It might be helpful to you, Senator Singh, if she indicated the expiry dates of the current members' terms.

CHAIR: That would be very helpful. Thank you for that, Minister. Senator SINGH: Thank you, Senator. Ms Karp: The deputy chair is the Hon. Susan Ryan, and her current term was from 29 August 2011. CHAIR: Is that Susan Ryan, who used to be a member of parliament? Ms Karp: Correct. CHAIR: She was from the Australian Capital Territory, wasn't she? Ms Karp: Yes, and her term expires on 28 August 2014. The current term of the Hon. Paul Calvert, who is former President of the Senate, is from 29 August 2011 to 28 August 2014. The current term of Professor Kate Darian-Smith, who is the Professor of Australian Studies and History at the University of Melbourne, is from 30 April 2013 to 29 April 2016. All three of those members are in their second terms. Dr Janette Griffin is an academic and her current term—it is her first term—is from 29 August 2011 to 28 August 2014. The first term of Ms Sue Mackay, former senator and opposition whip, was from 22 February 2011 to 21 February 2014, but she has advised that she is stepping down. She is unable to make our next meeting. The first term of Ms Natasha Stott Despoja, former senator and leader of the Australian Democrats, is from 22 February 2011 to 21 February 2014. The term of the Hon. Graham Edwards is from 12 July 2013 to 11 July 2016, Western Australia. And there are two vacancies.

Senator SINGH: Yes, just getting into the vacancies. Can you provide the committee— Senator BRANDIS: Plus the chair. Ms Karp: Plus the chair, sorry. Senator SINGH: Can you provide the committee with the date when the position of the chair became vacant. Ms Karp: The position of the chair became vacant on 15 February 2013. Senator SINGH: Who currently holds the position of chair? Ms Karp: It is vacant. Senator SINGH: Do you have an acting chair in those circumstances? Ms Karp: In those circumstances the minister can appoint a temporary acting chair, but traditionally the deputy chair steps up to that position.

Senator SINGH: Has the minister appointed an acting chair? Ms Karp: No. Senator SINGH: So your next meeting will have the deputy chair chairing— Senator Brandis: Senator Singh, as Ms Karp has pointed out, practice is for the deputy chair to act as the chair. I am happy with that practice for the time being. The appointment of a chair is under active consideration. As you learned from the earlier evidence, the appointment of Mr Cassidy as the chair was made 5 August. The position had been left vacant for six months, but it will not be left vacant for another six months. I am currently

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considering the appointment of a suitable person—who will not be an active current politician or a current working political journalist. Senator SINGH: Suitable in your eyes— Senator Brandis: Yes.

Senator SINGH: which is your prerogative. Ms Karp, can you tell the committee the exact moment the decisions to appoint Mr Cassidy was first made public? Ms Karp: I would have to pass that on to the department.

Senator SINGH: I will be more specific for you. When did the museum put the name of the new chair, Mr Cassidy, on their website? Ms Karp: I would have to take that on notice. I advised staff in an all staff email which I copied to council on 28 August.

Senator Brandis: I mentioned before—and I know you do not accept this, Senator Singh—that I was concerned about the irregularity of the appointment. Again, I stress that it is no reflection on Mr Cassidy. The fact is—and it is an aspect of the irregularity of the appointment—that it was never publicly announced. I first became aware of it after I had been sworn as minister and it had not been publicly announced at that stage.

Senator SINGH: It had appeared on the website. I would like to know the date it appeared on the Old Parliament House website—because that is making it public. Senator Brandis: I do not think that was accepted by Ms Karp.

Senator SINGH: No, Ms Karp took it on notice. She has not provided the date. Senator Brandis: Perhaps you should reput the question, but I did not understand Ms Karp to be accepting your proposition that it had been publicly announced by being put on the website. Senator SINGH: Senator, you are saying that, if the position of chair is on a website, that is not out in the public?

Senator Brandis: No, I am not saying that. I am saying that, as I understood Ms Karp's evidence, when you put it to her that it had been put on the website, I did not understand that Ms Karp was assenting to that proposition. I thought she took that proposition on notice. You see, as I said a moment ago, one of the varieties of my concern—not the only one—is that this appointment, having gone to a cabinet meeting which was held after the election had been called by Mr Rudd, the former Prime Minister, was not announced. It was made after the election had been called and not announced even after the election had been held.

Senator SINGH: Ms Karp, who in Old Parliament House would have the answer? Who would know when it appeared on the Old Parliament House website—the appointment of the new chair? CHAIR: I think you have indicated you would take that on notice, Ms Karp?

Ms Karp: Correct. I would imagine—I would have to check this—that it would be around 28 August, when I advised staff that Barry Cassidy was joining us. Senator Brandis: I do not think it is in controversy that there was an email to the staff. What I think is not established is whether there was any public announcement. You have asked Ms Karp whether it was put up on the website, to which she said, 'I will take the question on notice.' So I do not think we can say that it is an accepted proposition that it was ever publicly announced, even by having been posted on the website.

Senator SINGH: What I am putting to Ms Karp, which she has taken on notice—so I am quite happy for the committee to receive that advice on notice—was: when did the museum put the name of the new chair on the website? That is the question.

CHAIR: We cannot do much more about that until we get the advice. Senator SINGH: Right. Can you provide the committee with the current work and ongoing upkeep of the Old Parliament House? What are some of the programs and exhibitions and the like that are currently in train? Ms Karp: There are three key areas of activity in Old Parliament House. There is the schools program, which currently runs pretty close to capacity, with 80,000 kids coming through a year. There is obviously the spectacular building and the maintenance and the interpretation around the building, and the artefacts and the collection within the building. And then there is the public program work that we do, which is a collection of exhibitions and engagement with community events, such as the election festival. Our current exhibition is the Insurgence exhibition, which opened last month and is looking at art and the use of art as a vehicle for protest, and the best of the cartoons exhibition 2013 will open on 29 November. Those are the two upcoming ones. We have our main

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gallery exhibitions, Living Democracy, Exploring Democracy and Hands-on Democracy, which feed into some of our education material. Senator SINGH: And have the activities in Canberra this year, with the Centenary, created more work and more strain on the budget?

Ms Karp: No, I do not that the activities for the Centenary have created more work. The exciting thing about this year is that we have a new strategic plan. We have set out to really increase activity and engagement with the museum, both through the activities we are doing inside and through the number of exhibitions—small exhibitions, medium exhibitions and large ones. We have seen an extraordinary increase in the numbers coming through. In fact, if we remove the 6,000 people who came to vote in Old Parliament House, we have had a 30 per cent increase in numbers over the past three months. And the election festival saw 25,000 people come through the museum in five weeks.

Senator SINGH: So you have had your work cut out for you. Ms Karp: It has been busy. Senator SINGH: Thank you, Ms Karp. CHAIR: Regarding the cartoon exhibition, Mr Pickering will feature prominently in that, I would imagine, wouldn't he?

Ms Karp: We have a number of cartoonists featuring. Mr Fox: This exhibition is 2013, the year in review. CHAIR: It is only for one year? Mr Fox: Yes. It is an annual exhibition, a review of the year's political cartoons. We do not feature Larry in this exhibition, although Larry does feature in other exhibitions around the House, particularly around the press gallery.

CHAIR: He is one of the greatest political cartoonists—and I am showing my age here. Although he has done a few cartoons recently, perhaps mainly on the internet. Senator BRANDIS: He has got a very big online presence, I think, Mr Chairman.

CHAIR: He does—some great cartoons. You perhaps should see if you can squeeze some of his online cartoons into the exhibition, Mr Fox. This question I think might be a question more for the minister, because I am sure the officials would not focus on these things. Minister, as I understood the board—and again I confess that I have not followed this closely in the past—those of former political persuasion were Ms Ryan, Mr Calvert, Mr Edward, Ms Stott Despoja and Ms Mackay. Is that correct, Minister?

Senator BRANDIS: Yes. Those are the only ones that I can identify from my own knowledge as having been former members of parliament. CHAIR: Minister, perhaps you can answer this. From my knowledge, that seems to be three former Labor politicians, one former Liberal, and one former Australian Democrat.

Senator BRANDIS: That is right. CHAIR: I appreciate this is a board and they are all retired and probably none of them are actively involved in politics these days. But is there some criterion whereby if you are going to have ex-political people on the board you might get some balance? Three to one does not seem to be— Senator Brandis: If I may say so, that is a very perceptive observation. The reason I was treading very carefully with Mr Cassidy's appointment—and this, I hope, came out in my answers to Senator Singh—is because I think this is a unique institution which has the peculiarity that, I think, it is actually best administered by having at least a substantial number of its board being former politicians. But we have to protect its non-partisan character, and the way in which I myself would resolve that what I call paradox is to have people who have retired from the political fray. In previous years—when I was last Minister for the Arts and Sport, for example— the Right Hon. Doug Anthony was the chair of the board. I think it is always a good thing to have retired parliamentarians of standing from both sides of the aisle and I would seek to continue that. I think that, by and large, it is a good thing to have a reasonable balance. Senator SINGH: It does not change the fact that Mr Cassidy had already been appointed to the position. You were made minister and you wanted that changed. That is the reality. That is what process has gone on. Senator Brandis: We have had quite a lot of questions and answers on this topic. I have been, strictly speaking, freer than I should have been in informing you of the briefing that I had from the department and I have got nothing to add to the views that I have already expressed. I think this is a board where retired former senior

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members of the House of Representatives and the Senate are very suitable appointees, but current political protagonists, I think, would detract from the apolitical character of the institution. You may or may not agree with me, but that is my position. Mr Chairman, in relation to your question: there are three former Labor members of parliament. There is one

former Liberal member of parliament. There is one former Australian Democrat member of parliament. At least some of those are people who have had quite eminent careers. Former Senator Stott Despoja was the leader of her party. Ms Ryan was a cabinet minister. Mr Calvert was, of course, the President of the Senate. There is no shortage of eminent former members of parliament from both sides of the aisle who are willing to serve. I do not think it should be all retired members of parliament, but I think it is the sort of institution that lends itself to former members of parliament being a substantial—

Senator SINGH: So they can be non-retired members of parliament now? Senator Brandis: No. Senator SINGH: You made it very clear earlier that they have to be retired. CHAIR: Please do not interrupt. I will come to you. Senator Brandis: You misunderstood what I was trying to say. I do not think former members of parliament should be the entirety of the board. I think there should be other people as well who are not former members of parliament—in other words, people from the community, from the academy and so on. But I do think—and this has been a view shared, I think, by both sides of politics—that, because of the nature of the institution and the events and personalities exhibits, having a few of the 10 who comprise the board being drawn from former members of parliament from both sides is a good thing.

CHAIR: Did you have a follow-up question, Senator Singh, before I follow up? Senator SINGH: Only to clarify again that the minister is very clear on his position for this board not to have anyone of activity in the political fray, but he is comfortable for Janet Albrechtsen, a journalist who was on the ABC board, and Waleed Aly, who is currently in his portfolio on the Australia Council board, to be in those positions. So there are double standards being displayed or some uniqueness that is beyond uniqueness for this particular board that the Senator tries to stick to in his argument to justify Mr Cassidy stepping down from the position that he was appointed to and which was on the Old Parliament House website and therefore made public. Senator Brandis: Mr Cassidy chose to step down, and I think he made the right decision to do so. I have explained and do not want to weary the patience of the committee by going over again the reasons I take the view that current politicians and current working political journalists are not the sort of people who are suitable to the board of an institution of this non-partisan but intensely political nature. That is the paradox: it has got to be non-partisan, but it is intensely political. If I could give you another example: former Senator Susan Ryan, who in fact will appear before this committee and is in the room at the moment in a different capacity. Former Senator Ryan's work continues to be involved in public affairs, if I can use that term, as the Age Discrimination Commissioner. I do not think the appointment of somebody like former Senator Ryan, a former member of the cabinet, is inappropriately merely because she continues to be involved in public affairs and has agreed to serve her country in a new public role—that is, as the Age Discrimination Commissioner. I very specifically and advertently limited my remarks to current politicians and working political journalists. CHAIR: Okay. Minister, I am sorry that you clarified; when you said there was an exclusion to non-political people, I thought you were looking at me, and I was going to indicate that I was not available for appointment! Senator Brandis: Perhaps in the fullness of time, in many years to come after long service as Father of the Senate, you may retire, and a future government may look indulgently and admiringly upon you. CHAIR: I asked for that, didn't I! But I am not available. I throw in a suggestion: former presidents of the Senate are always a good option. Senator Brandis: They are indeed. CHAIR: Senator Boyce, did you want to— Senator BOYCE: I would like to change the subject slightly if I might. Ms Karp, you mentioned briefly the fact that the museum was used as a polling booth during the election. I understand that is the first time that has happened. Could you very briefly—given we are about to run out of time—tell us how that went, what the basis for deciding to do that was and whether you are intending to continue it? Ms Karp: The basis for it was that we had just redone our strategic plan and we were looking at the notion of Old Parliament House as a town square, picking up on the idea of Kings Hall being a very vibrant and dynamic space prior to parliament moving into its new house. So, in consultation with the Electoral Commission, we felt

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that actually allowing people to vote in the house would be true to the spirit of the building and what had taken place within it. It was far more successful than we ever envisaged. It was unclear how many people would turn up. The Electoral Commission thought perhaps 600, and we ended up with 6,000. People were queuing for an hour and a half to get inside. I think it was very much a sense of having privileged access to something that was really new and different in there. We have not considered whether we will be doing it again; but, based on the success, it is something we would put on the agenda for consideration.

Senator BOYCE: Thank you. CHAIR: The Old Parliament House's most significant event in my living memory is the dismissal. That would not by any chance influence voters, would it? Perhaps I will not ask for an answer to that question! If there are no other questions for the Museum of Australian Democracy, I thank you for your attendance.

Proceedings suspended from 10:59 to 11:15

CHAIR: I welcome the Australian Financial Security Authority to the table. Senator BOYCE: I have questions around the number of bankrupts who apply to travel overseas. Ms Ingram, do you have numbers on that? Are you able to give me figures or quantify and qualify? Ms Ingram: I can take the question on notice, but I understand it is roughly five per cent, and that is cumulative. Obviously you are talking about new bankrupts in a year, and then you have current bankrupts who may be in their second or third year of bankruptcy.

Mr McCosker: Over the last few financial years—we have not have the exact figures with us but we can provide those on notice—it is between five and eight per cent of the total number of active administrations that we have on foot at any given time.

Senator BOYCE: It would be good if you could provide that information on notice. What is the process involved for a bankrupt getting permission to travel overseas? Ms Ingram: It is very straightforward. They contact their trustee. If it is a private trustee they can write a letter. It is up to the trustee as to how they handle it. But, with the Official Trustee, they can call our service centre and it can basically be administered over the phone. So unless there are complications, where it will be raised to a higher level, it can be very straightforward.

Senator BOYCE: Do you always seek contrary information? Ms Ingram: We will ask how they are financing the trip, obviously. Invariably it will not be coming out of the estate of the bankrupt, obviously; otherwise it will not be approved. Senator BOYCE: What percentage of applications to travel do you approve and how many are refused?

Ms Ingram: I would have to take that on notice, but I would say about 99 per cent, probably, would be approved—the vast majority. Senator BOYCE: Is there a cost for administering those applications?

Ms Ingram: Not directly with the Official Trustee. In other words, there is no application fee. Senator BOYCE: No-one pays. Ms Ingram: There is no application fee. It would be part of the general cost of administering the estate. Senator BOYCE: Nevertheless there would be a cost, (a) to the trustees and (b) to AFSA for undertaking this service?

Ms Ingram: There is a cost, of course, in administering everything that we do. Senator BOYCE: Would you have a knowledge of what that might be? Ms Ingram: Not at this stage. Senator BOYCE: I want briefly to look at the trend in insolvencies. They seem to be trending down at present, comparing the two quarters. Do you have any comment on that?

Ms Ingram: You have to split out the debt agreement numbers from that, and the debt agreement numbers are probably levelling. They are at their highest rate to date but they seem to be levelling. The numbers are fairly unpredictable at the moment but, yes, it seems there is a decrease on last year's numbers in the number of bankruptcies occurring.

Senator BOYCE: Do you have any comment on why that might be? Ms Ingram: We have had the GFC and numbers peaked in 2010-11, so there could be a relationship to that. Obviously employment has been trending well, so that is always an indication of the future levels.

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Senator BOYCE: I think there has been a massive increase in the number of inquiries about your personal properties register—up to 1½ million last financial year. Can you tell us whether those inquiries have increased yet again this year?

Mr McCosker: Are you referring to the number of search inquiries for the register? Senator BOYCE: Yes—inquiries of the database. Mr McCosker: The first year that we reported on, the financial year before last, there was only the five months of operation of the Personal Properties Security Register, because it started at the end of January 2012. The number reported in our annual report for the 2012-13 financial year is the first full financial year of activity for the Personal Properties Security Register. It is difficult to determine whether there are any trends emerging at this point in time. Senator BOYCE: What about in the current year? Ms Ingram: In the current year the numbers are on par with where they were for the last financial year, being the first full financial year of operation, at this stage. Senator BOYCE: Is there any charge on people searching the register? Mr McCosker: From 1 July this year the search fee is $4 per search. Senator BOYCE: Has that made a difference to the number of searches undertaken? Mr McCosker: There is no adjustment. For the first quarter of the current financial year it is very much on par with the trends that we saw in the first financial year of operation. Senator BOYCE: So charging has not affected the numbers? Mr McCosker: The charging for the first full financial year of operation was $3.70 per search and that increased on 1 July this year to $4. We have not seen any substantial or material change in activity as a result of that. Senator BOYCE: Does the $4 recover AFSA's costs of maintaining the database et cetera? Mr McCosker: Yes, it is a 100 per cent cost recovered regime, so it covers all of the costs of operations, from providing information to those who seek it via our contact centre through to the technology costs et cetera at the back end. Senator BOYCE: I noted in your last annual report that you had a section relating to the mental health as I understood it of clients. I am presuming this is in relation to people who have become bankrupt—is that how AFSA gets involved in the mental health area? Is that what has happened? Ms Ingram: Yes. Senator BOYCE: I am trying to see the relevance, I guess. Ms Ingram: Obviously we get people through our service centre who are quite distressed, so we have training for staff who answer those calls in how to assist those people and how to make sure that those people get the right advice and do not make hasty decisions about going bankrupt or something else—because obviously when people are thinking about bankruptcy they may be having other social or life issues. We also have complainants who might be constantly seeking our assistance— Senator BOYCE: Having been on the corporations and financial services committee, I know what you are talking about. Ms Ingram: We have worked with the Ombudsman and they have helped us in how to assist those people to find the right avenues to make sure they feel they are being looked after. We do not want to be fobbing people off even where we think we have assisted them to the extent that we possibly can. Senator BOYCE: You are not promoting mental health services of any sort. Ms Ingram: Not at all. Senator BOYCE: The training is simply to give your staff the tools to feel okay at work themselves and do their job. Ms Ingram: Yes. CHAIR: I thank officers from the Australian Financial Security Authority.

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Australian Human Rights Commission

[11:28] Senator FURNER: I have some general questions to begin with. Most of them are related to the annual report of the commission for 2012-13. Firstly, I understand there were 2,177 complaints lodged? Prof. Triggs: That is correct.

CHAIR: May I just interrupt? Professor, did you want to make an opening statement? Prof. Triggs: Normally we do not make an opening statement, but I did on this occasion want to speak just briefly. I firstly wanted to congratulate you, Senator, on your election as chair, and to say how pleased we are to see the reconstituted committee. We look forward to continuing and developing the productive relationship we have had in the past. Because it is a reconstituted committee we thought we might prevail upon you for a couple of minutes to explain a little bit about our role and our strategic priorities over the coming year or so. As you will be aware, the committee's primary role is to monitor compliance with, and educate people about, human rights as defined by the many international treaties to which Australia is a party, including the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. We also have specific legislation on discrimination on the grounds of race, sex, disability and age. A significant proportion of our work lies in responding to, and conciliating where possible, about 17,000 inquiries and complaints a year—a very significant contribution, I believe, to access to justice. This work is confidential and is thus not something on which I can make public comment, except in rare cases. We also have a very significant international human rights program, particularly the bilateral programs with China and Vietnam. Our work is guided by our strategic plan and agenda, which broadly aims to mainstream our human rights work so that the Australian community can see how human rights are respected and implemented. Our priorities are to tackle violence, harassment and bullying and to build respect for human rights in the community through education. In particular, our objective over the next year or two is to strengthen our engagement with the business community, especially small to medium business, to emphasise the global and national research that indicates where basic rights and freedoms are respected, and to unlock the significant economic potential and productivity by engaging in a more integrated society. Our project work includes 'Racism. It Stops with Me', a national program; working with the Australian Defence Force on sexual abuse; building the Male Champions of Change program; positive ageing; Indigenous and social justice work, particularly collaboration with business and the mining extraction industries; and working with business to integrate those with disabilities into paid employment. We hope to achieve a more integrated cross-commission approach to our work so that, whether we are dealing with the aged, children, women or the disabled, we can work with our legislation to build our functions in relation to fundamental freedoms and issues that are of great concern to the Australian public such as cyber-bullying, and the development of codes of practice for business to deal with education and training on the new laws of sexual orientation. So, with those very brief words, I would like to express the views of the entire commission that we hope to work well with you in helping to serve the Australian community and to achieve compliance with human rights law. Thank you very much. CHAIR: Thanks very much, Professor Triggs. Senator Furner, did you want to repeat your question very briefly? Senator FURNER: Thank you, chair. I was starting with some responses with regard to the commissioner's annual report 2012-13. As I understand it there were some 2,177 complaints lodged. Prof. Triggs: That is correct. Senator FURNER: Can I just have some feedback on the majority of those complaints, with respect to matters related to the RDA and the DDA. Prof. Triggs: I can say that those are distilled complaints from about 17,000 inquiries. We deal with a lot of matters but some 'gel', if you like, into formal complaints of about that number—2,200 to 2,500 a year. Overwhelmingly, the complaints concern matters of employment—hence our emphasis on business. Also, significant numbers of those complaints arise across all four areas, but certainly in relation to race discrimination and disability.

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Senator FURNER: I understand that the number of complaints in the annual report listed a 59 per cent increase over that year. How has the commission been dealing with the extra workload in handling those complaints?

Prof. Triggs: It is true that complaints in relation to racial vilification have gone up by 59 per cent. It is a spike, and we don't know quite whether that is going to be a sustained one. The numbers have declined in other areas, particularly core human rights complaints in relation to detention. So in terms of managing the workload: it goes up in some areas and down in others. We have in fact, over the last 18 months or so, managed to bring our backlog of complaints up to date and we do not have a backlog. So we are coping at the moment with the range of complaints that we are receiving.

Senator FURNER: In relation to the 41 per cent of racial hatred complaints, could you provide the committee with a breakdown on some examples, or whether the majority of complaints were in any particular area—was it over the internet, was it through other means?

Prof. Triggs: A significant percentage of them are through social media and the internet—and that is, again, a rising phenomenon. It links in, of course, to the community concern that we are hearing so much about, which is the rise in cyber-bullying generally. Not all bullying is related to race, of course, but a significant percentage of it is. So it is an area that we can see is an important one for the future.

The sorts of examples are the use of highly pejorative and seriously unacceptable terms used on public transport, in workplace canteens, in shops, in shopping malls—they occur in a number of contexts and they occur across many races. It might be Australia's Aboriginal and Torres Strait communities but it might equally be the Indian or Chinese communities; or the Muslim community, where you get something of a mixture of race and religion. So it is very varied. And they vary in their egregious nature. Some might be a throw-away line that is overheard in a canteen and is of concern or it might be something deeply egregious. Some of these examples we have seen, of course, when people have filmed them on their iPhones and sent them across the social media.

Senator FURNER: How does the commission deal with complaints that relate to the matters of the comments or use of blogs on the internet in terms of educating the public that they are inappropriate? Prof. Triggs: That of course is the key strategy. In relation to individual matters, we attempt to reach a conciliation—and, on average, matters are resolved between about six to 12 weeks. But mostly, with conciliation, it is possible to reach an appropriate outcome. We conciliate successfully about 65 per cent of the matters that come to us. Where they are not conciliated it is an option for the party to go to the Federal Court, but rarely do they do so—it is very infrequent.

That brings us to the broader point that you are making: education. We see that as an absolutely fundamental part of what we do, and we are putting increased resources into developing modules for the Australian curriculum that will allow broad human rights questions to be considered. But, in particular, with this problem of cyber-bullying, people using blogs to bully and to racially vilify people—it is not only race; it is on a number of other grounds as well—there is no doubt that education is the key to creating a culture in which you cannot use these forms of social communication for purposes which are well accepted within the Australian public as unacceptable.

Senator FURNER: You are aware that the new government is proposing to amend the Racial Discrimination Act in terms of racial vilification. No doubt there will be the possibility of an increase in complaints to the commission as a result of that, by internet concerns with material that is put on the web.

Prof. Triggs: Because there has been significant public debate about this matter over the last year or so, that may account for something of the spike—in other words, the more people know that they have an option to come to the commission with a complaint, the more these figures tend to go up. At the moment, we understand that the Attorney will be embarking on consultations to consider exactly what sort of amendment might be viewed as appropriate to the existing legislation under the Racial Discrimination Act.

Senator FURNER: Chair, I might yield to Senator Singh on this particular area. Senator SINGH: Professor, I wanted to ask specifically in relation to the government's flagging of changes to the Racial Discrimination Act, particularly section 18C. Firstly, do you consider section 18C of the Racial Discrimination Act of benefit to the Australian people? Prof. Triggs: Our view from our observations at the commission over many years, since section 18 was introduced in 1995, is that it has been successful. It has been applied in a successful way by the courts, dealing with only the most egregious cases. Our view at the commission is that section 18C and the freedom of expression defences and exceptions under 18D serve the public well, but we accept that this is very much a matter of public debate in a way that it has not been for a long time. We welcome public discussion about this and we certainly

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hope to play a fruitful role in facilitating consultations as to whether or not it adequately meets the concerns of the Australian public. But I think there is no doubt at all, judging by the number of complaints we receive in the area, that the public sees the section as one which meets a community need. Senator SINGH: Indeed. Do you think that section 18C restricts freedom of speech?

Professor Triggs: Section 18C, in and of itself, clearly does restrict freedom of speech but, as you will all be aware, freedom of speech is not an absolute freedom. Senator SINGH: No.

Prof. Triggs: It is subject to numerous forms of balancing with other community interests. In fact, interestingly, one of the few legislative provisions that we have explicitly stating the right to freedom of speech is really within 18D, so 18C and 18D are intertwined in that sense. There is, if you like—to put it in your language—a breach of the classical freedom of speech in 18C itself because it limits the way in which you can use language

Senator SINGH: That is right. Prof. Triggs: But 18D is designed to provide a balance to that, which gives legislative form to the right to freedom of expression. Senator SINGH: I was getting to 18D, and I wanted to ask you how the defences in section 18D operate. Specifically, I was going to ask you to provide an explanation as to the reasons why Andrew Bolt was unable to rely on the defences of 18D when he was charged with offences under the Racial Discrimination Act.

Senator Brandis: Mr Chairman, I just wonder whether it is appropriate for any witness to be asked to express their views about why the decision of a court was as it was, or why a particular proceeding before a court was conducted in a particular way. I do not for a moment want to divert Senator Singh from discussing section 18C—I very much welcome this discussion, having initiated it myself—but I would not have thought a question, either to a witness or to me as the minister at the table, about why a particular court case was conducted in a particular way was a proper question.

CHAIR: That is very valid and I am sure Professor Triggs would have given that answer as well, Senator Singh, so perhaps you could ask something that the witnesses can actually answer. Opinions on courts and why individual litigants won and lost and why a court has made a decision really are not a matter for the commissioner.

Senator SINGH: I put the question to the commissioner. It is up to her how she answers it. Professor Triggs: Can I answer it by saying that 18D sets out various grounds as exemptions to what would otherwise be a breach of 18C. Those grounds, broadly speaking, at least in relation to the matter you are concerned about, provide an exemption from the act being unlawful—in this case a report—where it is fair comment, where it is accurate and where it is made in good faith. I think it would be fair to say that the view of the Federal Court was that, based on the facts before the court, those exculpations or grounds for exemption were not made out on the facts, and that was the view of the Federal Court judge. Senator SINGH: That was my understanding as well. I just have a question in relation to an editorial in The Australian newspaper on 9 November this year calling for repeal of parts of the Racial Discrimination Act, entitled 'Repeal of the "Bolt laws" will boost free speech'. It was stated: Those who might be concerned about any looming gap in the law—

following repeal of section 18C— should take comfort from the fact that the Commonwealth Criminal Code outlaws incitement to racial hatred and the government has no plans to remove those provisions.

Professor, are there any provisions in the Commonwealth Criminal Code that mirror the provisions of section 18C of the Racial Discrimination Act? Prof. Triggs: My understanding is that there are not, although that there are provisions in state laws, most particularly in New South Wales. If I may, I would like to take that on notice, to give you as full a description of the laws as I can. Perhaps the point can be made fairly that these criminal laws have either never or rarely been employed, and that was one of the underlying reasons for the introduction of section 18C years ago.

Senator Brandis: Senator Singh, I think you have put the witness at a little bit of a disadvantage by using the expression 'mirror', which is a vague expression. Of course there is a fundamental difference, because section 18C gives rise to a ground of civil complaint. The sections of the Commonwealth Criminal Code—I think it is section 82A which is relevant, if my memory serves me correctly—are, of course, crimes. One would not expect the

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criminal law and what is a ground of civil complaint to be mirror images of each other, because different principles apply, as you would be aware, between criminal and civil liabilities. Senator SINGH: Professor, are you aware of any legislation that is currently being drafted, or has already been drafted, to amend the Racial Discrimination Act?

Prof. Triggs: I am not aware of any terms of a bill that is available for discussion at the moment. My understanding is that this is subject to community consultations, and once those consultations have been conducted a bill will be drafted.

Senator Brandis: Senator Singh, if it helps, that is correct. Senator SINGH: Do you know the nature of these community consultations? Senator Brandis: Given that I am the person engaging in the community consultations, perhaps it might be more helpful to you if I were to respond, if that is all right with Professor Triggs. I have begun, and will continue, to have conversations with a number of community leaders with a particular interest in this matter. I am not going to go through them by name or even category, because these are private consultations. Senator SINGH: They are private consultations. Is there not going to be community consultation? Senator Brandis: There are going to be private conversations with community leaders who have a particular interest in this matter. I will take a submission to cabinet when those consultations have been completed and I have arrived at a concluded view as to the best way to deal with this. A bill will be introduced and it will be debated in parliament and, no doubt, dealt with in this committee in the usual course in which all bills are the subject of parliamentary discussion. Senator SINGH: Are you saying there will be private community consultation? Senator Brandis: There will be private conversations with community leaders, yes. Senator SINGH: You are not going to call for submissions, you are not going to have any formal community consultation process. You are just going to have private conversations with people of your choosing that presumably provide you with the advice that fits with the direction that you are going with the amendments that you want to make to this legislation—yes-people, in other words. Senator Brandis: I think that you are being very cynical, if I may say so, Senator Singh. I am acutely aware of the sensitivities of this issue, and I am aware, as I hope you are aware, that there is a variety of points of view, from those who would happily see the Human Rights Commission abolished to those who would not wish there to be any alteration to the existing law at all. There is a variety of points of view in the community, and the people who holds or subscribe to that variety of points of view feel very strongly about their point of view. I will be consulting for a variety of points of view within the community. Senator SINGH: If you regard my comment as cynical, Attorney, I think it is because those people in the community who will become cynical when they are not given the opportunity to be a part of a process for the amendment of an incredibly important part of the Racial Discrimination Act, which deals very closely with the fact that that part of the act protects many Australians from racially motivated hate-speech. That is where the cynicism will end up. It will end up directed towards you by many members of the community. I will move on— CHAIR: You are out of time, and we have a lot of people wanting to ask questions. I will move onto Senator Marshall and we will come back to you if we can. Senator MARSHALL: I just have one question to Mr Innes. The Marrakesh Treaty to improve access to information for persons who are blind, visually impaired and otherwise print disabled was adopted, as I am sure you know, on 28 June 2013. I am sure you know, and I think to our international credit, Australia played a key role in achieving this treaty. Can you tell the committee what steps are or will be in place, including the timeline, for Australia to sign and then ratify the treaty? Mr Innes: That is a matter which I would encourage the government to move on swiftly. I do so because the major benefit from the Marrakesh Treaty, from the perspective of Australia, will be what we can share with other countries, although there will be some benefits to people within Australia who are blind or have a print disability. The treaty, if I may, Senator, allows for the sharing of alternative format materials, that is, audio, braille and electronic files of books, to be shared across borders. It has been, prior to this treaty, a bar to people with a print disability. We have experienced what has been described as a 'book famine' because the organisations that produce these books in alternative formats do not have the capacity. Most of them are charitable organisations and they do not have the capacity to have access to these books. I, as a blind person, have access to about five per cent of the books that are available to people who read print. The Marrakesh Treaty will perform a very important role, and I have encouraged the former government and this government to move quickly for Australia to ratify that

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treaty. I have not yet had an opportunity to discuss this matter with the Attorney, but I look forward to doing so when I can, and I am hopeful that we will be able to work positively towards Australia's ratification. Senator MARSHALL: I am just wondering if I could ask the minister whether you have given it any consideration at this point? It is something I have to follow at the next estimates, given what Mr Innes has said about it.

Senator Brandis: It is a matter before the government at the moment, Senator. Senator MARSHALL: Sure, that is fine. Senator EDWARDS: My questions this morning relate to the recent appointment of the Race Discrimination Commissioner, Dr Soutphommasane, who joins us here today. Secretary or president, in relation to that recent appointment, can you tell me how long that position was advertised for before you made the appointment? Prof. Triggs: I do not think I can give you a very precise answer to that. I think it was something like six weeks. I would have to take that on notice to be precise. Senator EDWARDS: What was the basic selection criteria? Prof. Triggs: The criteria were that the person needed to have an understanding of the Race Discrimination Act, to have some scholarly understanding of the subject, to have a relationship and an understanding of the multicultural society in which Australia lives, and perhaps to be able to integrate, of course, concerns in relation to Aboriginal and Torres Strait Islanders with the wider Australian community. There were a number of specific requirements such as the ability to engage in administration and management the act. Senator EDWARDS: How many candidates did you have apply? Prof. Triggs: I was not really in charge of this process. But we had a very good range. There was somewhere around 40. Members of the advisory committee, of which I was one, reduced that to a shortlist of three or four. Senator EDWARDS: The first round produced from the 40 three or four, which was— Prof. Triggs: Sorry; I beg your pardon. The first round produced an interview shortlist of about 11 people. Then from the 11, after the interviews a short shortlist was produced for consideration by the Attorney-General. Senator EDWARDS: Okay. As part of the criteria that you talked about, is the role a non-partisan and impartial role in terms of politics? Prof. Triggs: Without question. Senator EDWARDS: Without question. Before I move on, what is the salary of the Race Discrimination Commissioner? Prof. Triggs: I do not recall precisely. It is set by the Remuneration Tribunal. It is in the region of about— Senator EDWARDS: I am sure that the good doctor would know. Dr Soutphommasane: If you refer to the Remuneration Tribunal setting of salaries— Senator EDWARDS: I am referring to your remuneration package. Dr Soutphommasane: Yes. The remuneration package, to the best of my knowledge, is $332,000 per annum. Senator EDWARDS: That is $332,000 per annum plus superannuation plus— Dr Soutphommasane: No, that includes superannuation. Senator EDWARDS: Is there any vehicle? Dr Soutphommasane: No. That is the package. That is the same for all commissioners. Senator EDWARDS: So there is no difference between the package of previous commissioner and that of current appointment. Prof. Triggs: No. When that amount goes up under the rulings of that tribunal, it goes up across the board at a particular point in time. Senator EDWARDS: Who selected Dr Soutphommasane? Prof. Triggs: The former Attorney-General. Senator EDWARDS: There is no involvement of the president of the Australian Human Rights Commission? Prof. Triggs: There is involvement in the sense that, with a representative of the Attorney-General's Department and one other member from the Australian Public Service— Senator EDWARDS: Is that the Deputy Commissioner of the Australian Public Service? Prof. Triggs: Correct.

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Senator EDWARDS: Are any other senior officials from the Attorney-General's Department involved? Prof. Triggs: That was the complement—the three. They created a shortlist, conducted the interviews and then made recommendations to the Attorney-General. All three were equal recommendations to the Attorney-General. Senator EDWARDS: Given your comment about impartiality and non-partisanship, was the former commissioner—the one before our current commissioner—aligned with any political party? Prof. Triggs: Not to my knowledge. Senator EDWARDS: Was she a member of any political party? Prof. Triggs: Not to my knowledge. Senator EDWARDS: I want to talk about the Australian Human Rights Commission role in his. Did they have any input at all into the selection of the current commissioner? Prof. Triggs: The selection was made by the Attorney-General. But I as president was a member of that advisory committee and we unanimously made a recommendation of three names to go to the Attorney-General. There is no doubt at all that I was consulted and was part of the decisions that created the shortlist. Senator EDWARDS: There were three names provided to the Attorney-General. At the time, he made the decision on the appointment. Prof. Triggs: That is correct. Senator EDWARDS: And you had no input into the final decision. Prof. Triggs: None at all. I was not spoken to at all about it. Once it had left our hands—the original advisory body—no further contact was made with me about that selection. Senator EDWARDS: Did the government of the day or the cabinet or the minister provide any names to go into that selection process? Prof. Triggs: No. Not to my knowledge. There was a proper process by which applications were made and it proceeded through that process normally. Senator EDWARDS: How many of the 40 applicants were party aligned? Prof. Triggs: I would have to take that on notice. I would imagine that there were very few but there may have been one or two. Senator EDWARDS: Of the three that you then put to the Attorney-General, how many were party political aligned? Prof. Triggs: Two were certainly not. But the successful applicant had been a member of a party but subsequently— Senator EDWARDS: You say 'had been'. Prof. Triggs: I understand that he resigned. Senator EDWARDS: You are referring to Dr Soutphommasane, the current Race Discrimination Commissioner. Is he currently a member of a political party in this country? Prof. Triggs: I understand that he is not. Dr Soutphommasane: I am not a member of a political party. Senator EDWARDS: You have been? Dr Soutphommasane: I have been. Senator EDWARDS: When did you resign your membership of that political party? Dr Soutphommasane: I resigned my membership of that political party in July of this year after it became apparent that I would be appointed to this position. Senator EDWARDS: What day were you appointed to this position? Dr Soutphommasane: I believe that my appointment took effect on 20 August. But I was informed that I— Senator EDWARDS: When did you sign your contract? What day? Dr Soutphommasane: I began on 20 August. Senator EDWARDS: But when were you appointed? When did you know that you had the job? When did you pop the cork from the champagne at home? Dr Soutphommasane: In July 2013.

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Senator EDWARDS: What date? Dr Soutphommasane: I would have to take that on notice and get back to you. Senator EDWARDS: Would it have been before the 30 July? Dr Soutphommasane: Yes. Senator EDWARDS: I want to take you to comments that you made that were reported in the Age on Monday 30 July 2012. 'Any Abbott premiership will reflect the man: the muscular Christianity, Anglo-centralism, combative instincts, conservative ideology.' Is that quoting you directly?

Dr Soutphommasane: I believe it is from July 2012. Senator EDWARDS: Isn't a comment such as that in this role, given the president's earlier comments about impartiality and non-partisan position, quite the opposite? Dr Soutphommasane: Those comments would have been made by me in my capacity as a political philosopher employed by Monash University in 2012.

Senator EDWARDS: I see. I would seek the president's comment on that. Prof. Triggs: My view is that the position is, as I said, undeniably one that is not partisan. I would think it reasonable and appropriate that, once the appointment was taken up or the contract signed—and presumably the contract came first—a person would resign from their party affiliation before taking up their position. And I believe that that is what happened here. It possibly would not be reasonable to expect that every applicant for a position would not have had at some stage been a member of a party before appointment. Senator EDWARDS: But you do not know how many of the 40 applicants were members of political parties, except for one. Prof. Triggs: No, I am afraid I cannot give you an answer to that. I can certainly find out as a matter of notice and I would be very happy to come back to you. Senator EDWARDS: Was it a directive of yours or any of your officers that Dr Soutphommasane resign from the Labor Party? Prof. Triggs: It was not a direction of mine, because it was unnecessary to make that direction. He had already told me, when I first spoke to him, that, knowing that he would accept the position, he would be resigning from the party. I did not need to make a direction. Senator EDWARDS: Dr Soutphommasane, can you detail for this committee what your activities in the Labor Party were? If you could work backwards from the day that you were appointed to the role that you currently serve, that would be good. Dr Soutphommasane: Do you mean my activities from the day that I was appointed to today and how they relate to membership of a political party? Have I understood your question correctly? Senator EDWARDS: I am interested—and I think that the people of Australia would be interested—to know what party political activities you undertook with the Australian Labor Party before you came to this role. How long were you a member of the Labor Party? Dr Soutphommasane: Thank you for that clarification, Senator. I was a member of the Australian Labor Party from 1997 until July 2013. I was a branch member in the New South Wales Labor Party. I was also employed in the office of the Hon. Bob Carr when he was Premier of New South Wales. I worked on the national election campaign of the Australian Labor Party in 2007. Senator EDWARDS: In your role with former Senator Carr, did you produce material that he used to address people publically as his speech writer? Dr Soutphommasane: I worked on his speechwriting and media staff. Senator EDWARDS: President, why was this candidate chosen over all others—the 39 other applicants— who applied for this position? Prof. Triggs: The answer to that question is one for the former Attorney-General, because he made that selection. The committee was really an advisory body. But I take the thrust of your question to be why he emerged as one of the top three candidates. Senator EDWARDS: The 37 were excluded. Of the three, why was the good doctor seen to be the shining light for a position that you have stated should be non-partisan and indeed impartial, as you quite eloquently put it earlier? Somebody has now been appointed to the role who has said senior administrative positions within the ALP since he was 15 years of age.

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Prof. Triggs: I cannot really go into the details of how each determination was made. All I can say is that it is assumed in making the recommendations that any candidate would resign any prior political positions that they might hold. The task of the advisory committee was to determine the three best candidates in light of the criteria. Dr Soutphommasane has outstanding criteria as a political philosopher.

Senator EDWARDS: How many previous commissioners have been party political aligned? Prof. Triggs: I am afraid that I am unable to answer that. There have certainly been some. I am again very happy to give you those names and statistics on notice after I pull them together. Senator EDWARDS: How long was the term of the previous commissioner?

Prof. Triggs: Dr Szoke was in her position for about a year. Senator EDWARDS: Why not five years, which is what the current commissioner has been appointed for? Prof. Triggs: She was appointed for five years, but for personal family reasons she was unable to continue past the first year, and I took over then as acting Race Discrimination Commissioner. Senator EDWARDS: When did she resign? Prof. Triggs: It was around Christmas 2012. Senator EDWARDS: Why the lag time—seven months—to appoint a new commissioner? Prof. Triggs: I believe that the selection process was timely until the final stages when the former Attorney-General was presumably making his own inquiries as to which of the three names that we had suggested would be the most appropriate appointment. But that is where the time lag took place. Senator EDWARDS: Was it your advice to make that appointment, given that we were right on the cusp of a federal election and clearly the decision was to appoint somebody who was such an apparently politically aligned person to what you describe as an impartial non-partisan position? What was the motivation, given that everybody was pretty relaxed for seven months? Why did we rush in and make the appointment on the eve of the 2013 federal election? Prof. Triggs: That is a question that only the former Attorney-General can answer, because the work of the committee was done sometime beforehand. Senator EDWARDS: Was the shadow Attorney-General at the time consulted on the appointment of Dr Soutphommasane? Prof. Triggs: I do not know the answer to that question. Senator Brandis: I know the answer to that question. The answer is no. Mr Dreyfus did not consult me in relation to any appointments he made. I am not saying that he should have consulted me, but he did not. His predecessor, Ms Roxon, did extend me the courtesy of consulting me, as the shadow Attorney-General, in relation to a couple of very important appointments, specifically, the appointments of High Court judges, where the views of the opposition were elicited by her. In fact, the appointments to the High Court made under her attorney-generalship were in each case the names of persons who appeared on the list that I had given her confidentially as people the then opposition considered of sufficient eminence to be appointed to the High Court. The reason I make that point, Senator Edwards, is that there was on occasions, by the previous government, the practice of consulting me on very important appointments. But that practice was not observed at all by Mr Dreyfus and it certainly was not observed in relation to the appointment, on the eve of the 2013 election, of a longstanding senior member of the Australian Labor Party to what the President has told us must absolutely be a nonpartisan and impartial office. Senator EDWARDS: Thank you, minister. My final question is probably to the secretary. Given that this appears to be a blatant political appointment—with no disrespect to the academic qualifications of Dr Soutphommasane—will you be revisiting the appointment of such a politically oriented person to a role which the President, in her own words, has said should be 'impartial and nonpartisan'? It looks to me and to the Australian public a $332,000 a year patronage appointment. Mr Wilkins: It is not really my call. It is a bit like asking me whether I have stopped beating my wife. It is difficult— Senator EDWARDS: Perception, in this business, often becomes reality, secretary. Mr Wilkins: I think I will take that on notice because the question has certain presuppositions which, as a professional public servant, I do not think I need to actually accept. But it is something which I will of course discuss with the minister about future processes et cetera. But, under the circumstances, I do not think it is something which the secretary of a department is able to revisit. The appointment process is set out in the statute.

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The processes for reviewing that are set out in the statute. In futuro, we can look at processes, but there is no position, I think, for the secretary of the department to be revisiting that. Senator EDWARDS: But, at the end of the day, the then Attorney-General sat down in the solitude of his office and took on the recommendations of the people providing him with the names and appointed a person who would have been well known to him and who has served the party in which he was a member very well for many, many, many years.

Mr Wilkins: That is a matter for ministers and governments. The Public Service cannot necessarily deal with those issues. Senator EDWARDS: My very last question is to Dr Soutphommasane. Given the comments you made earlier about the Prime Minister—then Leader of the Opposition—would you expect that your comments about the way people conduct themselves in here will be somewhat more temperate from here on?

Dr Soutphommasane: I only ask that I be judged on how well I do my job. I look forward to working with all sides of politics in combating racism, which I believe is an issue that must transcend partisan lines. Senator EDWARDS: Which is a new position for you.

Dr Soutphommasane: I have always been fiercely independent in my thinking. Senator EDWARDS: I am not so sure. CHAIR: Dr Soutphommasane, when you worked for Senator Carr was it when he was Premier of New South Wales or was it when he was foreign minister in the previous government? Dr Soutphommasane: It was when he was Premier of New South Wales, in 2004. Senator SIEWERT: Mr Innes, I have some questions on the NDIS. In terms of the planning process and the launch sites, have you received any complaints about the progress to date on the NDIS and how people are engaging with the process? Mr Innes: I cannot comment with respect to any complaints which may have been lodged with the commission—in the formal sense of the term 'complaints'. If your question relates to whether I have had discussions with people in the disability sector with regard to progress on the NDIS, then absolutely I have and I continue to do so. I am always engaging with the disability sector and representatives of the disability sector on a range of issues. I think it is fair to say that the NDIS is some four to five months into process and it is very hard, at this point, to determine how effective it is being. There are a range of concerns in the disability sector about the NDIS, but I think that is not surprising given the significant changes the NDIS will bring to the sector. I have had ongoing discussions with representatives in the sector but I do not have concerns about the current progress of the NDIS. I think it is where it would have been expected to be at this point in its development. Senator SIEWERT: I go back to the issue of the number of complaints. Are you saying you cannot tell me whether you have received any complaints. Mr Innes: I cannot tell you whether the commission has received formal complaints of discrimination with respect to the national disability insurance scheme. That information is confidential, so I would breach my confidentiality commitment if I were to do that. What I was referring to were discussions I continue to have in the sector. Senator BOYCE: Are you able to say if there have been complaints? Mr Innes: No, I cannot nor can the president of the commission say whether there have been complaints against the NDIS—in the same way we cannot confirm or deny complaints against any organisation. Senator SIEWERT: You did touch on your ongoing discussions about the process. I have certainly had feedback on initial engagement—people having some concerns about the nature of the engagement over the planning process and also about their ability to gain access to decisions being made about decision making and supported decision making. Have you had any discussions or feedback on those issues? Mr Innes: Absolutely, particularly because decision making is part of the focus of the Australian Law Reform Commission inquiry, for which I am a part-time commissioner. That has been one of the issues with which I and the president of the Law Reform Commission, Professor Croucher, have been dealing over the last few months. So, yes, I have had conversations about that. I have had feedback, both positive and negative. At this point in the process, I do not have concerns about the rollout of the scheme. But that is not to say that people have not expressed concerns to me. What I have to do is weigh those concerns against the other views I have heard and the other information of which I am aware with regard to the rollout of the NDIS. Senator SIEWERT: Thank you. Have you fed some of that feedback you have had back to the agency?

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Mr Innes: Yes, I have. I am not involved in the rollout of the scheme now as I was with the campaign, but I still talk to colleagues in the agency, both at board and executive level. I have shared some of those concerns. Senator SIEWERT: Thank you. Are you aware of whether they have taken those concerns into account, in any way adjusting their process?

Mr Innes: Only to the extent that I have a good working relationship with them and that I expect that, as I do, they listen to the concerns that I raise and weigh them with all of the mix of other information that they hear. But I do not always expect people to report back to me on how they have dealt with any concerns that I have raised with them.

Senator SIEWERT: No— Mr Innes: I am sorry. I am not trying to be evasive. I am just— Senator SIEWERT: I appreciate that. My concern is that this is the beginning of a process that there are great expectations about. Mr Innes: That is absolutely true. Senator SIEWERT: And already we are getting some signals. Given the expectations and the assurances we were given during the debate on this particular piece of legislation, certainly some of the concerns that I am hearing are cause for concern. So I am trying to find out whether the concerns that we are hearing are being taken on board and processes changed to reflect that. Mr Innes: I guess I balance the expectations and some concerns about the meeting of those expectations against the nature of a change process. Uncertainty always causes a level of concern, and I have been involved during my working life in a number of change processes, and it is quite a usual consequence of those processes. So my sense, which is really all I can give you, is that at this point the Australian community and the Senate do not need to be concerned. But it is something which I will continue to monitor while I am in this role. Senator SIEWERT: Thank you. In those discussions that you have been holding, have concerns been raised with you around decisions being made by other government agencies as a result of people being accepted into NDIS? Mr Innes: This was always an issue of concern even before the NDIS began: that there would be a move by other organisations, government and non-government, to, if you like, step back from their responsibilities and assume that the NDIS would pick up those responsibilities. It has always been expected that it would be an area of tension, and I think those expectations are being realised. It will be part of the sorting-out process, and that is something that I am monitoring, because the commencement of the NDIS does not mean that organisations in a range of areas—transport, education, prisons and other service areas—can step back from the obligation that they have to people with a disability as members of the general population. So, yes, that is certainly something that I am watching. Senator SIEWERT: Thank you. Can I just move quickly on, because I still want to get to— Senator BOYCE: Could I just ask one more question in this area, about concerns about the NDIS and its rollout. Senator SIEWERT: Yes. Senator BOYCE: Has it been brought to your attention that there is concern within the intellectual disability community or sector that there are far greater problems in planning in that area than perhaps with people with physical disability? Mr Innes: Yes, it has. There were concerns in the intellectual disability sector prior to the commencement of the scheme. Senator BOYCE: Yes. Mr Innes: Those concerns continue. I think the particular concerns were also related to the fact that people with an intellectual disability, if I can make these generalised comments, would be less likely to engage with the NDIS than, perhaps, people with other disability. My understanding is that the NDIS is working to address those concerns, but I still think it is a bit early to judge how effective that recognition is. But the NDIS is certainly aware of that as an issue, because many other people, probably including you as well as me, have raised that with it. Senator BOYCE: Thank you.

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Senator SIEWERT: Thank you. I go on to the issue around the agency, the issue of systemic advocacy and the amendments that were made to the bills during the debate. Have you had any contact with the agency about that particular process yet?

Mr Innes: Do you mean the funding of systemic advocacy not being within the NDIS? Senator SIEWERT: No, not that—their ability to be able to advocate on behalf of people who are part of the NDIS. Mr Innes: I, and representatives of the complaint-handling section of the commission, spent some time with the NDIS before commencement, developing their complaint system. This was one of the issues we discussed with them, and we discussed the particular importance for many people with a disability of being able to have the support of an advocate. I have had this issue raised with me since the commencement and have again raised it with a senior executive in the agency. I have not had a response to my concern, but it is something that I am following up because I want to ensure there is not any bar or restriction to advocates being involved in the planning process if that is the wish of a person with a disability or of their family.

Senator SIEWERT: Have you been consulted or has your advice been sought on any possible movement of contracting NDIS services to Medibank? Mr Innes: No.

Senator SIEWERT: Ms Ryan, I want to follow up on the report that you have been working on for some time and released not long ago, Fact or fiction?Stereotypes of older Australians. Particularly given the finding that employers are reluctant to take on people aged over 50 and the new statistics showing that even more people over 50 or 55 are staying on Newstart for longer, where do you go to from now with that report? Do you think there needs to be stronger action, stronger legislation? Or how do you better enforce the legislation around discrimination of those over 50 in the workplace?

Ms Ryan: The actions that have come out of that report, which was pioneering research into the extent of negative stereotypes of older people, are several. I have a series of meetings with employer bodies, with recruitment agencies and their national organisations, and with national human resource bodies in order to take up with them the significance of the findings and to persuade them that a change of approach towards employing older Australians is in everyone's interests, most particularly those older Australians who are seeking employment and are unable to find it, and in the interests of the economy.

I have done some other work on the massive positive impact on the national economy which would come from increasing the participation in the paid workforce of over 55s. I also have a series of meetings with advertisers scheduled and some have started. One of the interesting and, I think, important findings of the Fact or fiction? research was that even though people over 65, for example, are over 14 per cent of the population, advertising targets about four per cent of older people, and that is for a very narrow range of products, such as funeral insurance, whereas of course people in that age group present a huge market, wish to purchase goods and services and to have advertising reflect what they are interested in. Indeed they are very keen to be consumers, if only things were targeted to them. So there is a series of discussions there.

In relation to whether we should be looking at stronger legislation, I think at this stage the business case for opening up employment to older Australians is so strong that I am hoping it will bring about the changed attitudes. As a result of the Law Reform Commission's report on Commonwealth laws and policies in relation to older people, we do have an issue with insurance where quite a number of age barriers are in place. These are not unlawful as such under the Age Discrimination Act at this stage, and I do have a number of discussions with insurers and representatives of the insurance industry, again to see whether presenting them with the facts about the potential business opportunities of removing some of their age discriminatory policies will be enough to change and open up better opportunities for older Australians.

Senator SIEWERT: In terms of the organisations and employers you are meeting with, are you working or meeting with Job Services Australia employment services? Ms Ryan: I have had meetings with them in the past, but not since the report has come out. One of the changes that I will be very interested to see as a result of the new government is that the new government announced, as a part of its election commitments, an increased incentive to employers to take on people over 50 who have been unemployed—an incentive of $3,000 per employer, which is three times the amount that was available previously. I am very interested to see, once that is implemented, whether that in fact does encourage particularly small and medium sized employers to have a more open mind about the employment of older Australians. Again, with Jobs Services Australia the issue is, as I have stated in many submissions, that people in their 50s who lose their jobs need assistance in preparing themselves for job search straightaway. They do not

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need to wait until they have used up all their savings, maybe six months or 12 months, and then get assistance in terms of how to present a CV, what part of the market to target and so forth. So I think my message to Job Services Australia would be: assist people to look for employment straightaway; do not let them run down their motivation and their resources before offering them training and other forms of assistance.

Senator SIEWERT: Perhaps I could go back to the insurance issue and the issues we have with age barriers there. You say it is not unlawful— Ms Ryan: You will be aware that there are exemptions to the Age Discrimination Act, and insurance is an exemption. A person can still bring an age discrimination complaint against an insurer to the commission. What then happens is that the insurer must produce actuarial data that justifies their discrimination on the basis of age. Now, that rarely happens, but when it does that data is made available in the private conciliation process. I do not have access to it. So, I am now discussing with a representative group from the insurance industry ways in which data can be more publicly available. Obviously each insurer has its commercial-in-confidence issues, but I believe it would be in the interests of our better understanding how insurance affects older people to have the data more publicly available. I have a group now that is going to meet regularly to see if we can come to some better agreement so that we do understand why, for example, a person getting travel insurance over 75 has to pay vastly more than a person under 75. These are things that are quite important but at this stage I believe the best way forward is cooperation with the industry. And, again, I strongly believe that the market—the business opportunities—are there for insurers if they look again and remove some of the age barriers that they have in place in relation to their products.

Senator SESELJA: Professor Triggs, this is a new area, but maybe just briefly going back to one of your earlier answers in relation to 18C of the Racial Discrimination Act. In listening, it appeared that you were suggesting that 18C is actually reasonable as drafted, but I note that in the past you have suggested that some aspects of 18C are probably ripe for reform, such as the references to 'insulting' or 'offending'. Are you able to clarify that for me, given that I am new to this space? Does it remain your view that 18C does need some amendment?

Prof. Triggs: I and my predecessor are on record as saying that there is at least an arguable case for thinking of amendment—but amendment to strengthen the provision. As you will know, the words are 'insulting', 'offending', 'humiliating' and 'intimidating'. And those matters that have gone to the Federal Court on this question—ultimately to the High Court—have always applied the law at this egregious end of the scale, and they have typically not gone through an interpretive process of saying 'insulting' means this and 'offending' means that and 'humiliating' means this et cetera. They have always asked for much more than merely 'offending' and 'insulting' and for something at the egregious end, and indeed the cases that have been determined have all been extremely serious cases. I have had to look at some of them, and I think no reasonable Australian would come to any other view.

But I am aware that there has clearly been a public debate over the last year or so and it has questioned the validity or usefulness of these words, the argument being that it is at too low a threshold. Now, we accept that the public debate is concerned about this, and it might be that after proper consultation those words could be taken away and replaced with tougher words, like 'vilification' or 'hatred' or 'incitement to racial violence'. You could toughen the phrase. Another is to toughen it by talking about meeting acceptable community standards or possibly inserting the word 'serious', which in fact adopts the jurisprudence of our courts. So I think my position, to answer your question—and the position of the commissioners and the commission as a whole—is that we accept that there has been and should be a public debate about this, and we hope to be a part of that debate. We certainly think that there might be a case for amendment, but most particularly to strengthen its service to the Australian public.

Senator SESELJA: You say there is an arguable case, but do you believe that the bar is too low with those words, 'insulting' or 'offending'? Prof. Triggs: It is not really for me to put my personal views about that language. What I can say is that the courts have always asked for the standard to be at the highest level. If it is a political judgement through the Attorney and public discussion that those words do not quite meet the seriousness of racial vilification, then we will obviously administer that accordingly, but that will be pretty much exactly as the courts are doing it already. So, our position is that we are not promoting any particular form of amendment. We are interested to hear what the public and ultimately the Attorney believes is appropriate, and we hope that that will be a suitable strengthening to protect various groups within the community. And we have seen in the media in the last few weeks and months, and most recently just a couple of weekends ago, that there are serious instances of abuse which can lead to physical violence. It does not happen very often but it does happen, and the need for a strong,

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symbolic message to the Australian community where it is needed that the language of this racially vilifying kind is not acceptable is a message we support. Senator SESELJA: A related question, though a different one, relates to the issues around promoting certain freedoms, as Senator Brandis has raised a number of times with you, particularly from opposition—and I note that you have made some comments to the committee before about work that the commission was doing to try to promote some of those freedoms. Are you able to bring me and the committee up to date as to what recent progress you have made in that space?

Prof. Triggs: We are certainly wanting to use the language of freedom, perhaps more than we have in the past, and one of the key ways in which we have been doing that is to link our work to the precise articles of the International Covenant on Civil and Political Rights, which is part of our mandate in terms of determining human rights. Those provisions are, of course, freedom of assembly, freedom of speech, freedom not to be arbitrarily detained without trial and charge et cetera. And we are linking our work to that on the website, so that somebody who wants to know a little bit more about what freedom of speech means can go directly to that provision on the website. Similarly we are about to—I think in the next week or so—issue a discussion paper on freedom of religion, a debate that was again prompted over the last year or so, partly in the context of aged care facilities, and Commissioner Ryan played a significant role in that matter. But it has been an issue that we have taken up. So, in those ways we are trying to ensure that we are engaging in the language of freedom. We are also developing teaching modules for the Australian curriculum to ensure that that language and understanding of core human rights are understood by school children.

Senator SESELJA: You talk about engaging in the language of freedom, but do you see it still as your role to be a genuine advocate for those freedoms that you talk about? Or do you see that because of the legislative framework that is actually not your role?

Prof. Triggs: According to our statute it is my role and the role of other commissioners within their particular portfolios and legislation to advocate and to monitor and to educate. So, all of those things apply. But, as you suggest, we do have an impediment to being as effective as we might like to be because we do not have legislation on which to hang our concerns about some of these core fundamental freedoms.

Senator SESELJA: But in terms of that advocacy for freedom, this discussion paper you talk about in relation to freedom of religion, is it coming from the perspective of how freedom of religion may not be respected in this country? Or is it coming from the perspective of what should be the limits on freedom of religion in this country? What is the driver for that discussion?

Prof. Triggs: I would say that the purpose of this paper is to provide as objective a statement as possible as to what freedom of religion is at international law, and in Australian law of course it is the one freedom protected by the Australian Constitution and the jurisprudence by the Australian courts that have given effect to it. Historically, you will know, freedom of religion is protected in Australia, curiously, by virtue of exemptions, and there are many in the community who see that as inappropriate. So we have taken that argument on and looked at whether we should be on the front foot with protecting the freedom as distinct from viewing it constantly from the point of view of exemptions. And that really arose out of an earlier debate this year, and we hope that the Australian public will see it as a useful contribution, hopefully at an objective level, so that we can discuss it outside an election context in a way that should be balanced.

Senator SINGH: I did have questions in relation to the freedom commissioner proposal by government, but I may have to put those on notice due to time, because I did want to go back to the Attorney in the astonishing admission he made earlier in relation to the fact that there will be no open process of consultation for the amendment of the Racial Discrimination Act, which he is proposing, but instead private conversations. Attorney, you are planning to scrap laws that protect Australian people from racially motivated hate speech, but you will not give the Australian people any opportunity to be part of a public consultation process in doing that?

Senator Brandis: I think, if I may say so, your rhetoric is very, very misleading. What the government intends to do is to reform the legislation so that it is more respectful of freedom of speech. Senator SINGH: But are you going to have an open process for consultation—yes or no?

Senator Brandis: If I may finish my answer, please: it is not ordinarily the case that governments engage in widespread public forums before bringing legislation to the parliament. Now, you know that, Senator. Senator SINGH: This is a pretty fundamental change—

Senator Brandis: Because of the sensitivities involved here, what I am in the process of doing is speaking to a number of community leaders, and I have been doing that for quite a long time now, since my party was in opposition. And we will bring legislation to the parliament, which, under our system—as you know, Senator—is

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the place where that legislation is debated. And I have no doubt at all that it will be referred to this very committee and debated in this very committee when the legislation comes forward. But rather than merely write legislation without any process of advance consultation, I am going to a great deal of trouble to ensure that I do engage significant community leaders in discussing the best way of achieving the balances between the protection of racial minorities from unacceptable forms of conduct on the one hand and protecting the freedom of Australians to express opinions, including unpopular opinions or divisive opinions, which is part of the lifeblood of a healthy democracy.

Senator SINGH: How can you conduct community consultation in private? Senator Brandis: The term 'community consultations' is yours, Senator Singh, not mine. I said I would be consulting a variety of community leaders. Senator SINGH: Professor Triggs used that term as well. It is quite a common term used in government to consult on legislative change.

Senator Brandis: Well that is not my term. What I said is that I would be having conversations with a number of community leaders, as I am. Senator SINGH: Have you met with any Indigenous leaders?

Senator Brandis: I am not going to talk about individual conversations. The government informs itself in various ways about the best shape of legislation, as you know. CHAIR: That is what you are elected for.

Senator Brandis: When the legislation is produced to the parliament, no doubt there will be a parliamentary debate, and I would hope that if the party that you represent, Senator Singh, is serious about what at least some of its members claim is a belief in intellectual freedom it will support the legislation.

CHAIR: We might have to leave that there. Just before we conclude, can anyone indicate if they, again, want the Australian Law Reform Commission? In which case I can say to the Australian Law Reform Commission, apologies for getting you here, but we will excuse you. Proceedings suspended from 12:47 to 13:45

Office of the Australian Information Commissioner CHAIR: Ladies and gentlemen, I will resume this hearing. We are dealing first with the Office of the Australian Information Commissioner—we ran over time with the previous agency. I welcome the officers. We only have 15 minutes each for the four agencies scheduled for this hour, so we are looking at 15 minutes each, so for as many senators as want to ask questions we will have to divide that fairly.

Senator LUDWIG: If I can, then, just cut to the chase: regarding recent FOI requests, have you provided any advice to government about current requests? Prof. McMillan: About—

Senator LUDWIG: Things like incoming government briefs. Prof. McMillan: Yes. I have had some discussions generally with government and with the Attorney just about the work and the functions of the office. I have had a meeting with the secretary and with the Attorney. Certainly in briefings that I have provided the workload generally has been mentioned. On the specific issue of incoming government briefs, I had one informal contact, I recall, from a senior officer of a department. I informed the officer of the decision I had made in the Crow matter. This was before there had been any decision announced in the media. And, equally, I might say I have had contacts from journalists and have spoken informally with members on the opposition side who have rung me, and I have essentially given the same answer to everybody: that, if this matter comes before us, this is how it will be determined. There is a decision already published and it deals with some aspects of the issue but not all. Senator LUDWIG: That is the Crow decision? Prof. McMillan: The Crow decision—that is correct. Senator LUDWIG: Have you been asked specifically by government to comment on the Hawke review, now that the recommendations have been made? Prof. McMillan: As part of our briefing to the new government, the Freedom of Information Commissioner, Dr Popple, and I sent a letter to the Attorney with three attachments that contained the views of the office in response to the 40 recommendations in the Hawke report. I foreshadowed in that letter that the attachments would be provided also to the members of the Information Advisory Committee and the Privacy Advisory Committee, which were scheduled to have a joint meeting, which was held last week. The normal practice is that papers

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presented to those committees are then published on the web. So the three attachments that contain our response to each of the recommendations of Dr Hawke have been published on the OAIC web today. Senator LUDWIG: Have you been advised as to whether the recommendations emanating from the Hawke review are government policy?

Prof. McMillan: No, I have not been given any official advice. Senator LUDWIG: Senator Brandis, do those recommendations form part of government policy as yet? Senator Brandis: Senator Ludwig, it is the policy of the government to consider the recommendations of the Hawke review and those recommendations are currently before the government. I can tell you that I have not yet taken the submission to cabinet in relation to the Hawke review. I can tell you that I expect to take a submission to cabinet in relation to the Hawke review. Obviously, I am not in a position— Senator LUDWIG: I am not asking. Senator Brandis: No, I understand that. What I would foreshadow to you, Senator, since we are talking about freedom of information in the interests of transparency, is that I would expect that sometime next year there will be legislation before the parliament arising from the Hawke review but what the detail of that legislation is I am not in a position to say and it has not yet been determined. I can also tell you that the government will consult the opposition closely in relation to that and we would hope to be in a position to take the opposition into our confidence and to seek the opposition's support for those reforms. Senator LUDWIG: Thanks very much. So you would be surprised if a government department was taking those recommendations now as government policy? Senator Brandis: They are not government policy. Senator LUDWIG: Thank you. In the interests of time, I will put the remaining questions on notice. Senator RHIANNON: I was interested if staff numbers in any of the FOI units across government agencies have been reduced since the new government came in. Prof. McMillan: Is that a question about the staff numbers across the Australian Public Service generally? Senator RHIANNON: I was going to ask Mr Wilkins one right across his responsibilities but I was also interested in narrowing it down to FOI units. Prof. McMillan: We have never collected statistics—in the three years of this office we have not collected statistics on staff numbers in agencies. We collect statistics on requests to agencies and there has been a slight increase over the last year. We collect statistics on the estimated cost to agencies of administering the FOI Act and there was a noticeable increase in that last year. Beyond that, we do not have figures on the actual staff numbers in agencies. I think in many agencies people would be discharging a mixture of functions, including FOI. Senator Brandis: Senator Rhiannon, I do not mean to interrupt the flow of your questions, but I wonder if you might indulge me to let me expand just a little on the answer I gave to Senator Ludwig because I do not want it to be misunderstood. Senator Ludwig said to me that you would be surprised that a government agency was treating the Hawke review as government policy and I replied that the recommendations of the Hawke review are not government policy. Let me explain what I mean by that. No decision has been made by cabinet in relation to particular features of the Hawke review. In that sense, the Hawke review is not government policy. However, I think in a more general sense you may assume that the government intends to move forward on the Hawke review. So as a general proposition, reforming the FOI Act arising from the Hawke review is government policy but no particular recommendation has so far been taken to cabinet. Do I make myself clear about that, Senator Ludwig? Senator LUDWIG: You did the first time. That was perfectly clear. We do not know what recommendations you will bring forward. We do not know how they will look in legislation. Senator Brandis: We share Dr Hawke's view that the FOI legislation should be reformed. The Labor Party is probably with us on that, but as to the particular detail of those reforms, that is a matter for discussion. Thank you, Senator Rhiannon. Prof. McMillan: I have taken the time to clarify the last answer I gave. Can I just say that there is a breakdown on page 141 of the OAIC's 2012-13 report of the information provided to our office by agencies concerning total staff hours spent on FOI matters. That shows an increase over the last three years, but of course it will be nine months before we have figures for this year. Senator RHIANNON: Nine months before we will have figures? Prof. McMillan: Yes, because it is an annual financial year reporting exercise.

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Senator RHIANNON: Mr Wilkins, I was interested in staff numbers in FOI units, if that is possible, if you could inform us whether they have been reduced since the new government took office or, if that is not possible, across your whole department?

Mr Wilkins: There has been no diminution in the department. Senator RHIANNON: Are there plans within the department to pursue redundancies or job cuts? Is that part of your current work? Mr Wilkins: Sorry, you are asking a more general question now about—what exactly is the question, Senator?

Senator RHIANNON: The question is as I asked it: are there plans within your department to pursue redundancies or job cuts? CHAIR: This was raised earlier. Mr Wilkins indicated that he would be answering it later on this evening during departmental.

Senator RHIANNON: Okay, I am sorry, I was not here then. So we will come back to that this evening. Thank you. Commissioner Popple, I note that in your annual report the reported cost attributable to agency compliance with the FO I Act had gone up. You identified an 8.4 per cent increase. It was interesting to read in the report about the changes that will occur on 12 March next year, when there will be the additional enforcement powers for resolving the various investigations. I am interested in how you anticipate that will impact on costs and how you are managing that.

Dr Popple: I think that question is best answered by my colleagues, because the changes that you refer to that are happening in March next year are changes to the Privacy Act, and they will impact on our officers involved in that area.

Senator RHIANNON: I apologise; I still get confused. Dr Popple: Not at all. Prof. McMillan: I will commence, and Mr Pilgrim might elaborate. In the annual report and in statistics that we publish quarterly on the web, the indication is that the workload within our office is increasing. As a general rule the number of complaints about freedom-of-information administration and about Information Commissioner reviews, which are merit reviews, are going up by about 10 to 15 per cent a year. That is the trend line in front of us. Privacy complaints, which extend to private sector bodies as much as government agencies, increased last year by about 16 per cent; in the last three months they have increased by close to 35 per cent. As we have also elaborated in the annual report, there is considerable work being undertaken in the office to prepare for the implementation of the privacy reforms on 12 March next year. The office will be required to publish in excess of 50 legislative instruments, codes, guideline notes and other documents. In summary, there is a general increase in workload. There has been no increase, obviously, in the staffing. Senator RHIANNON: I note that in your annual report you make that very point that you have just made, that you have received no additional resourcing. Are you getting to breaking point? Your annual report says that you are managing it, but we are seeing that the trend is upwards for the amount of work. Are you making an assessment of how long this can continue? Prof. McMillan: We have been quite public now in Senate estimates questioning and in the annual report and occasionally in speeches about the workload pressures faced by the office. The way that that is most immediately obvious—or the main downside—is that the delays in resolving matters extend. Particularly the delay in opening new matters—that is, assigning a matter that comes in the door to a case office—is extending. For example, with applications for Information Commissioner review on the latest statistics published on the web, it is about 228 days—that is close to eight months—before a new matter is allocated to an officer. There are exceptions—we have a triaging process with which we analyse matters as they come in. So that is the most observable consequence of the situation we are in. Senator RHIANNON: So, in summary of that, is it correct to say that the work is being compromised because of the lack of resources? Prof. McMillan: We do not think the quality of the work has been compromised. The way we have put it is that we are unable to meet the performance standards that we set for ourselves. I have certainly indicated very publicly that I would be anxious for the government to consider change to the Freedom of Information Act because we believe some of the recommended proposals for change that we and the Hawke review have made in the past could affect the workload of both agencies and our office. I made those comments in relation to the previous government, and the importance is such that I have made them in the context of a new government.

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Senator RHIANNON: Thank you. Dr Popple, with regard to how your work has progressed since the change of government, have their been any new directives to agencies about the application of FOI? Dr Popple: Do you mean by us?

Senator RHIANNON: Yes. Dr Popple: The guidelines would have been amended. It might have been after the change of government, but they were not amended because of the change of government. We have certainly not made any directives of any such nature. Senator RHIANNON: So it has not happened. Dr Popple: No. Senator RHIANNON: Thank you. Are there plans for a more comprehensive review of the FOI Act following the Hawke review? Dr Popple: You might be aware that the first recommendation of the Hawke review was that there should be a more comprehensive review. Dr Hawke identified some aspects of the system that he thought would be appropriately dealt with by that review. He also made some other recommendations about things that he thought could change without having to wait for that review. We have already, as Professor McMillan mentioned a few minutes ago, provided our response to that review to government. It is available on our website. We have a slightly different view from Dr Hawke about some of the matters that we think do not need to wait for a comprehensive review—things that we think could change sooner than that and which we think might actually work to improve the system and maybe also improve our capacity to perform our role within that system without further resourcing and just changing some of the framework. Senator RHIANNON: If I understood that, there are some things that you see could happen in a shorter time frame. To go to back to that recommendation with regard to a more comprehensive review, as the Hawke review identified: do you support that more comprehensive review? Dr Popple: Yes. There are certainly some aspects that we think are quite large issues that would require further review before they are implemented if the government decided to implement them. Dr Hawke also pointed out that there would be some benefit if the act were rewritten in plainer English than it is now, so at the very least that would be an achievement. But there are some other issues. For example, Dr Hawke identified a question that has been around for a long time about whether or not the act should apply as it does now to documents as opposed to information more broadly defined. For example, you might make an application, and the response would be a newly generated piece of information. That is a significant change if it were to be made and it would clearly require some considerable thought before it were implemented. Senator RHIANNON: And are there any other areas? You said some aspects. I was just wondering if there are other aspects as well as that one. Dr Popple: Yes, there are a number of others. We have separated these as an attachment which you will find on our website. Dr Hawke proposed a comprehensive review, and we agreed with him that some of those matters that could be sensibly dealt with in a comprehensive review include whether the act should include provisions to protect decision makers from interference in the decision-making process; whether the FOI act should provide a right of access to information rather than a right of access to documents, as I have just mentioned; whether the act should be amended to allow for representative complaints made on behalf of a group against the same agency where the same common issue of law or fact arises; and whether the same protections against civil and criminal actions that apply to a release of documents under the FOI Act should apply to documents provided under an administrative access scheme. Those are four that we identified that we thought would indeed benefit from some further review. We have gone on to list in that attachment some of the other matters that we thought could perhaps be dealt with more quickly than that. I am happy to take you to those if you like; but, as I said, they are available on our website. Senator RHIANNON: I am sorry that I missed that. Is it easily identified? Is it under the section about the Hawke review? I must admit I have not come across it. Dr Popple: Easily identified? Senator RHIANNON: You know what websites are like. Sometimes you can find things and sometimes you cannot. Dr Popple: Oh, I am sorry. It is available in the statements section of our website. Senator RHIANNON: Okay. I will go to that and check it out. Thanks.

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Prof. McMillan: Certainly we can invite you to contact the office if you have trouble finding it. Senator RHIANNON: Thank you very much. CHAIR: We are five minutes over our allotted time for these people, and Senator Ludlam wanted to ask a couple questions, so I am sorry but we will have to interrupt you there. Senator RHIANNON: Okay. Senator LUDLAM: I might break it into two brackets. Firstly, the AGD's disclosure log on the website: in my experience, the department, when freedom of information documents were released, would display them on the website. Now people are just told how many documents were there and that they can contact the department if they want a copy. When did that policy change happen, and how is that consistent with a transparent and open government? Mr Wilkins: Are you asking questions of the department now? Senator LUDLAM: We can ask it to the department, or I am happy to put it to the commissioner. Mr Wilkins: I am happy to start taking questions for the department if you wish. Senator LUDLAM: No. If it would be directed to you, I am happy to do it later. We will not take up too much more time with that. This one, then, is directly to the Information Commission. You recently found that DFAT's actions in relation to my FOI request were significant failings not adhering to the FOI Act and that delay coupled with the department's consecutive use of charges and extension time provisions could be done accidentally. You are familiar with the one that I am aware of? Prof. McMillan: Yes. It was Dr Popple's decision. I will have him answer that. Senator LUDLAM: And a very good decision it was. Please go ahead. You are aware of the case that I mean. Dr Popple: Yes. Senator LUDLAM: So in response I asked your office two questions. Firstly, what threshold do you use for establishing deliberate conduct as opposed to conduct that accidentally happens to be extraordinarily obstructive? Where do you decide that something has crossed the line? Dr Popple: I do not think I can answer that question in the general. As you know, I came to that conclusion in the specific instance here. I made a decision in response to your complaint. On my analysis of the information I had, which was your complaint and some information from the Department of Foreign Affairs and Trade, it was and is my view that their transgression was not intentional. Senator LUDLAM: Okay. How much more obstructive would they have needed to have been for you to have concluded that it was intentional? As far as I can tell, that exploited every loophole in the act. There was not a lot left they could have done to slow us down, so what would they have needed to have done for you to have made a different conclusion? Dr Popple: It was not really a matter of what they needed to have done differently; it was more that my view, from what I learnt about that matter, was that they had made their decisions oblivious to the fact that they ought to have been doing something different. There were a number of matters where, when we advised them that our view of the act was that they had not done the right thing, it was clear to me that they had honestly but incorrectly come to a different view. Senator LUDLAM: That is interesting. Okay. On 12 June the Privacy Commissioner issued a statement on the surveillance of the communications and online activity of Australian citizens by US intelligence agencies. You are familiar with that statement? Mr Pilgrim: Yes, I am. Senator LUDLAM: Do you have the authority to issue statements like that on your own initiative, or do they have to be cleared through other offices? Mr Pilgrim: No, I cannot issue statements to the media as I determine fit. Senator LUDLAM: Thank you. Who else was consulted on the content of that statement? Mr Pilgrim: There would have been some discussions with some senior policy staff within our office, as is the natural process depending on the matter, but no-one beyond that. Senator LUDLAM: Okay. Could I assume, though, that that was part of a whole-of-government response to the Snowden revelations, or was that an isolated action just of your office? Mr Pilgrim: That statement was made purely by me.

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Senator LUDLAM: Thank you. The statement reflects the realities of Australia's legislation and the limited legislative remit of the Privacy Commissioner when it comes to acts of overseas governments—I would not seek to contest the factual basis of what you have written—but the statement then appears to excuse the US surveillance operation by not indicating any faint degree of problem. As the Privacy Commissioner looking after the privacy of all Australian citizens, including everybody in this room, you appear to be completely comfortable with the extraordinary revelations that have scandalised capitals all over the world. Would you care to enlighten us as to why you are so comfortable in your role as Privacy Commissioner?

Mr Pilgrim: I think what I was doing in that statement is making a comment firstly, as you point out, on the facts of the matter around what legislation now regulates the accessing pieces of information within Australia— legislation such as the Telecommunications Interception Act—

Senator LUDLAM: Which has no bearing at all, though, does it? Mr Pilgrim: I would not like it to be couched in terms of me being necessarily comfortable or uncomfortable; it was a matter of stating the facts of the matter in terms of those pieces of legislation. However, I have subsequently made comments in terms of my view that there is always the ability for greater amounts of transparency in terms of what information is available to the community about these sorts of accesses—most recently, in the context of Apple providing at least some statistical information about what it releases to various governments around the world in terms of accessing their systems. Senator LUDLAM: So the AG's Department was briefed, according to an FOI that the ABC submitted, on the PRISM program about two months before the revelations were pushed into the public domain. Mr Wilkins: That is not correct. That was an inaccurate rendition by the journalist, whoever it was, inferring from a document, but it does not exist. There was no briefing on PRISM. Senator LUDLAM: Okay. I understand there were three. I am very happy for you to clarify the record that the AG's Department was not briefed or did not provide any briefings on that PRISM network. Mr Wilkins: That is right. Senator LUDLAM: So when did you first become aware of the existence of that surveillance operation? Mr Wilkins: I do not know when I first became aware of it, actually—not until I was reading documents. We are getting onto national security now? Senator LUDLAM: We are. I am happy to defer that. CHAIR: Do you have one more question? Senator LUDLAM: No, you have been quite generous. I will come back to these later in the evening. Mr Wilkins: Hold on; we're in the middle of it now. Senator LUDLAM: I am in the chair's hands. Go ahead and conclude your answer if you like. Mr Wilkins: I was just making the point that the premise of your question was wrong. We would like to contest that. It will take a bit of time later this evening. Senator LUDLAM: Let's do that. Mr Wilkins: I think the journalist drew the wrong inferences from the fact that there was a title on a document, and we will have to explain to you at some length this evening exactly how they got it wrong, but it was wrong. We did not prepare any briefing on PRISM. Senator LUDLAM: All right. That was worth turning up. Thanks. CHAIR: We might leave it there and go into it tonight at the appropriate time. Now we are dealing with the Administrative Appeals Tribunal. Thank you, gentlemen, for your attendance.

Administrative Appeals Tribunal

[14:13] CHAIR: Mr Kellow, welcome. Senator Singh. Senator SINGH: Thank you for that, chair. The tribunal now has jurisdiction to review a range of decisions

under the National Disability Insurance Scheme Act including eligibility and extended support decisions made by the NDIS launch transition agency during the launch phase. I understand that you have a budget of $3.8 million provided over the forward estimates for the tribunal's services during that launch phase. Can you describe to the committee how those services are being provided?

Mr Kellow: The tribunal will be reviewing decisions by what is now the National Disability Insurance Agency. As you pointed out, the jurisdiction falls into three broad areas. One is whether someone is in or out of

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the scheme and, if they are in the scheme, what is the content of their support plans. There is some jurisdiction around the providers of supports. But the tribunal itself will not be delivering services. I can talk a little bit about our arrangements for exercising that jurisdiction if that would be of assistance. Senator SINGH: How many AAT members have been appointed to deal with NDIS matters?

Mr Kellow: The legislation amended the AAT Act to create an NDIS division. All the presidential members of the tribunal—the judicial members and the Deputy President—can automatically exercise jurisdiction in that division. We have had 21 members and senior members assigned to that division. There were four new appointments in the middle of the year, and 17 existing members with appropriate expertise in this jurisdiction were also assigned to that division. So at this stage we have 21 members and senior members. I would need to do a quick count but there would probably be around 25 presidential members including the judges.

Senator SINGH: Have you been asked to review any of the decisions? Mr Kellow: As of Friday last week we have not had any applications for review. Senator SINGH: Have you received any direction or instruction from any parts of the government or their officers in respect of services provided by the tribunal—or what you have just outlined—in relation to NDIS applicants? Mr Kellow: No, there have been no directions. We have been very enthusiastic with the President engaging with the agency, its board, the key-support-person network that has been given some government assistance, key advocacy groups in each of the launch sites and the Department of Social Services about some of the schemes that they are putting in. So there have been no directions but there has been a great deal of communication flow between the various players to make sure that we are aware of each other's developments and to try and ensure that there is consistency between the different elements of the program. Senator SINGH: You do not anticipate any change in the tribunal's role in relation to the NDIS launch phase? Mr Kellow: Certainly not during the launch phase. I think the president is on the record as saying that we would be very keen to have the full jurisdiction when the scheme is fully launched over the next few years. But we are not anticipating any changes. We have a very robust continuous monitoring regime that we have set up to try and get continuous feedback, when we start getting applications through, to make sure that we are dealing with those applicants and those matters in the most appropriate and prompt manner as possible. It is certainly a client group that will bring issues that we have not had a lot of familiarity with—particularly in terms of people with severe disability. So we are very anxious to keep track of how we are dealing with the jurisdiction and make sure that we fix things as they come to our attention rather than waiting for the review that is anticipated at the end of the launch phase.

Family Court of Australia

[14:19] Senator SINGH: How many applications have you received in the last financial year relating to family violence? How does that compare with the previous year? Mr Foster: I would have to take the numbers on notice. I do not have those exact numbers for the total year. But I can say that notices of child abuse or risk of family violence filed between 2008-09 and 2012 13 were, for 2008-09, 441; for 2009-10, 440; for 2010-11, 335; for 2011-12, 334; and, since the changed definition of family violence in 2012-13, the numbers went up to 403. We are expecting that number to increase in this financial year. But I do not have those figures today. The past numbers I cited are contained on page 57 of the Family Court's annual report.

Senator SINGH: You will take the rest of that on notice? Mr Foster: I will. Senator SINGH: The back offices of the Family Court and the Federal Circuit Court merged, I understand, from 1 July. Can you describe how that has worked in practice and what efficiencies have been achieved? Mr Foster: It was formalised on 1 July with the creation of a Family Court and Federal Circuit Court agency you, of which I am the CEO. That basically formalised arrangements which had already been in place since November 2008—I have been the acting CEO of what was then the Federal Magistrates Court during that period. Through that process, starting in 2008, we gradually merged, with the consent of the Chief Justice and the chief judge, the back office functions for those two courts. We ended up saving $7.8 million, which went back to Finance, but we got $1.3 million back for the provision of family reports. So there was a return to government of

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$6.5 million through the elimination of duplication and simplified structures—just one of everything rather than two of everything. Senator SINGH: So it works better? Mr Foster: Absolutely. I think it proves that merged back office functions can work very satisfactorily. I think

it is still a work in progress and there is a view from both courts, I think, that they would prefer to see judges' direct resources, such as registrars, fixed to the court and not part of the back office function. Senator SINGH: Can you describe what advice, if any, you have to the Attorney-General and the Minister for Justice in relation to the coalition government's announced $30 million of savings to the Family Court?

CHAIR: You know you cannot ask for the advice from the department to the minister. Senator SINGH: Have you looked at how you are going to help make that saving? We just talked about the $7.8 million in savings with the back offices. But now in the coalition's fiscal budget impact policy document, there is a saving of $30 million from 'streamlined Family Court processes'. I wanted to know how the Family Court are going to get to the bottom line. Mr Foster: I am not sure what that $30 million actually means. It has not been clearly explained to us as yet. But, like every other agency in government, we have financial difficulties and we have to cut our cloth accordingly. So we are having discussions with the department as we speak about how we might maintain our financial stability and viability into the future. We really cannot afford to keep the staffing levels we have at the moment or to maintain the same level of services. It is something we are working very closely with the department about. We balanced our budget last financial year and ran a surplus of something like $2 million and we are anticipating bringing in a balanced budget this financial year. As with many other agencies, there are some difficulties in the forward estimates and we are working through a process at the moment. But I am really not in a position to talk about any detail at this stage. Senator SINGH: But trying to meet a saving of $30 million would affect services would it not? Mr Foster: $30 million out of the Family Court's budget, which is really a combined budget with the Federal Circuit Court,—if that is where it were to come from over the forward estimates—would have a significant impact on services, I believe, yes. Senator SINGH: What services in particular? Mr Foster: It would be basically across the board. It would be services in registries. Staff would find it very difficult to prepare files et cetera for the judges. I think that judges would have difficulty getting information they require when they require it. It could affect the way we deliver regional services. Perhaps, instead of having a fixed asset or a fixed building in regional places, we could more usefully use the facilities of the state services. We would still circuit to these places but not have fixed costs in some of the rural and regional areas. They are just general terms of some of the ways that would be affected. There might have to be a reduction in the number of family reports that judges—I am talking about both courts—received to help them in their decision making. It is a very expensive resource and one that we are looking at. Maybe we can change the way we do our case management practices to reduce the cost but still maintain the quality service that both courts provide. Senator SINGH: Just to clarify the answer to my first question, you mentioned that there had been an increase in family violence cases for this financial year, was that correct? Mr Foster: It is about both notifications, and the definition of family violence was broadened as from 7 June, therefore the number of notifications has increased. The actual application of final orders has remained pretty consistent over the last two or three years. It is not an increase in the number of applications to the court but is an increase in the number of applications where there are allegations of family violence. Senator SINGH: Thank you. Senator WRIGHT: I would like to follow on from that line of questioning and have a few more questions to flesh out some of those answers a bit more. The Family Court's annual report for 2012-13 indicates that it fell short of certain key performance targets. As reported in the Australian newspaper examples of that are that it only delivered 51 per cent of judgements within three months of hearing although the target is 75 per cent. There is a target that 75 per cent of matters pending conclusion must be less than 12 months old but my understanding from the report was that the result this year declined to 70 per cent. What has the court identified as the most significant impediments to meeting key performance indicators when they are not being met? Mr Foster: Many of those indicators come about because of the courts dealing with significant backlogs. Some of those cases are quite old and therefore it impacts on the performance indicator. In reality the court has a clearance rate of over 100 per cent. It is currently running to about 101 or 102 per cent. The Family Court is

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clearing work faster than it is coming in. The Federal Circuit Court, which is basically the workhorse of the federal courts, has a clearance rate of something like 98 per cent, so it is not dealing with the amount of work that is coming into its jurisdiction. If that is maintained eventually there is going to be a significant backlog of cases, which will be old cases and that reflects on the KPIs. That is the primary reason for not meeting necessarily all those performance indicators, but we do meet a fair number of them as well. That situation I think is improving significantly. It is important to note too that, in relation to filings of final orders, something like 85 to 90 per cent of filings now are in the Federal Circuit Court and about 10 to 15 per cent, depending on when you cut the figures, are in the Family Court of Australia. Those filings are balanced out over the last several years. It seems a bit like a sensible mix of filings.

Senator WRIGHT: What would you attribute the backlog to that you have been dealing with? Mr Foster: There has just been a significant increase in the number of cases over a period of years. They dropped off for a while and now they have come back. We have had a greater increase in general federal law in the Federal Circuit Court. There are now about 14 judges from the Federal Circuit Court doing entirely general federal law work. Basically there are slightly less resources for family law, but it is still pretty close to the mark. The Family Court is disposing of more cases than are coming in and the Federal Circuit Court is pretty close to the mark as well. Senator WRIGHT: If I can take you to the $30 million cuts that have been announced over the forward estimates, and we understand that that is to streamline Family Court processes. The only information that I am aware of in relation to those that has been provided by the government is a breakdown over the forward estimates starting with $2 million this financial year, $6 million the following year, $9 million, and then $30 million in 2016-17. Has the court been given any further guidance, apart from the idea that it would be a good idea to streamline processes, or that that is what the purpose of the cuts is, from the government about how these savings are to be made? Mr Foster: Not to my knowledge, Senator. Senator WRIGHT: Could I ask for a bit more detailed about what work the Family Court has done, including work that it has commenced but not completed, in relation to identifying how these savings will be made? Mr Foster: There is a pretty significant range of areas of both courts' operations where we have made significant savings over the last four years or so and returned to government. In some of those things we have made savings and reinvested it back into the courts. With the chair's permission it might be easier if I table this document which sets it out in detail. It is a significant document. Senator WRIGHT: That might be very useful, thank you. Can I just clarify what you are saying there that that is actually identifying savings that have been made previously? Mr Foster: Yes. Senator WRIGHT: I am actually asking about the forward estimates of another $30 million on top of those savings and what work has been done, now, has been commenced or completed and where those savings will come from in the future? Mr Foster: One of the significant options, as I said, is to try to reduce our cost of rental properties in rural and regional Australia and use the state facilities where we possibly can. A classic example of that is in Darwin where we have just signed off an MOU with the Northern Territory government for the Family Court and the Federal Circuit Court to move into the Supreme Court building in Darwin and free up our leased premises in Darwin. That is a really significant step and will save several hundreds of thousands of dollars. We are not quite sure about the exact detail as yet. The Northern Territory government is turning our courtroom section in that building into a juvenile justice centre, so they are taking over the lease. So we have made good on one commercial building floor. We have moved into a joint operation in Rockhampton in Queensland, and we are looking now at the new state court complex in Coffs Harbour. We are looking at every area of operation in relation to rural and regional, and we will try and do it in a much more effective way. We do now have really good technology to support that through the Commonwealth courts portal. The use of the Commonwealth courts portal with electronic filing is really quite significant now. We are looking at trying to change the way we deal with divorce and deal with that electronically only so we do not have to produce paper. There are a whole range of issues that we are looking at as well is generally just cut the cloth. There are things like operational expenses upon which we can impose a percentage cut. We have cut back our travelling enormously. We have now invested in internet protocol video conferencing. We have moved away from the ISDN lines. All of our video conferencing now is free of charge to us. A person can connect to our system for free and we can operate for free within the system so that people in the country, interstate and internationally can link into

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our video system at no cost to them and no cost to us. That was with a capital investment of around about $1.4 or $1.5 million. That has been operating now for about five or six months and the usage rate, off the top of my head, in October was something like 500 hours of video conferencing, which saved an awful lot of travel. We are looking at ways to manage interpreters in a much more effective way. Our interpreting costs are very, very high, but we are trying to manage that in a better way so that we do not have interpreters sitting around in courtrooms waiting to be called on. They can come in, do their job and get out. It is a mixture of back office, judicial and general administration where we are looking across the board to try to meet our commitments.

Senator WRIGHT: Are you confident, is the Family Court confident, that this cut of $30 million will not affect service delivery and access to justice issues? People will still be able to access the courts in a timely way? Mr Foster: Before I answer that question in detail I would like to find out a bit more about what these cuts actually mean—whether it is just in the Family Court or whether it is across a much broader range of family law services. A $30 million cut to the budget of the agency would be very significant.

Senator WRIGHT: That leads me to the question that I have. If I heard you rightly, you said that you would like to understand more of where those cuts are to be applied, is that what you said? That is my question. Do the cuts apply exclusively to the Family Court or could they also be found within the Federal Circuit Court and other courts? You do not know that from what you are saying at this stage.

Mr Foster: No, I do not. Senator WRIGHT: What is the relationship between the $30 million in required savings and the efficiency dividend which all federal courts face over the forward estimates? Is it your understanding that they are separate and cumulative requirements, or can any aspect of the streamlining be counted towards the courts' efficiency dividend? Mr Foster: I understand they are separate. Senator WRIGHT: So it is additional. Mr Foster: Yes. Senator WRIGHT: We have talked about the key performance indicators. You have indicated that the court would have liked to have met those more effectively, but you said that you are starting to have a backlog clearance. To what extent would these cuts affect your ability to meet those key performance indicators in the future? Mr Foster: We would still have the same number of judges. Judges are appointed with tenure until age 70, so there is still the same judicial firepower to deal with the cases. In theory it should not. The only question is: would we be able to keep the work up to the judges and the administration. That is the only issue. That might mean that we would just have to reallocate resources around the system. Senator WRIGHT: The judges', I understand, productivity and efficiency would be reliant upon how quickly they could get the information they needed and the files prepared and so on from the registry. Mr Foster: That is one aspect of it, but there is a much broader issue about judges' efficiency and effectiveness which concerns the legal profession and legal aid and a whole range of other things as well. Senator WRIGHT: Thank you. Senator SINGH: In relation to the video conferencing you talked about it being a saving and also an efficiency. That presumably would only work in regional areas where there is good ADSL or broadband to get that video conferencing working. Are there areas in Australia where you cannot currently use video conferencing because of a lack of availability of that good technology? Mr Foster: You can basically connect to our system from any computer. If you have a computer at home, all you need is your camera, and you can connect to our system. It is through the internet so it is not through an ISDN line. You call up our system or we call up your system, and that is basically how it works. There should be no restrictions on that anywhere in the country, or internationally for that matter, where people could not lock into our system. Senator SINGH: You have not found where there has been a difficulty? Mr Foster: No, not at all. I have some statistics on the usage of that system, if you would like them. Senator SINGH: That would be useful. I am no tech head but I know there has to be a certain bandwidth and capability for the receiving video end, if it is a computer, to have that video image work. I am not sure if all dial-up internet facilities would allow that, for example. That is why I was interested, in a regional area sense, if video conferencing does not work in some areas because of that.

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Mr Foster: We certainly have not found that as a problem to date. That has not been identified as a problem. Senator SINGH: That is good. Mr Foster: I thought I had some stats with me, but I do not unfortunately. I know from memory that, just in October alone, there were something like 400-plus hours of video conferencing used through the system, which is basically free of charge to the end user. Senator SINGH: Finally, I have a question that can be put on notice. If the committee could have your staffing allocation for the Family Court across the country, unless you have that now. Mr Foster: We have 757 FTE, as at today, and that is to service both courts. Senator SINGH: Right. Senator WRIGHT: I have one follow-up question and I thought I might take the opportunity to clarify the question you did not know and I would like to know. Perhaps we could ask the Attorney-General to shed some light on whether the cuts apply exclusively to the Family Court or whether the savings can also be found within the Federal Circuit Court and other courts. Senator Brandis: All of these matters will be considered within the budget process. Senator WRIGHT: So there is no clarity on that at the moment then? Senator Brandis: All of these matters will be considered in the budget process. CHAIR: We now move on to the Federal Circuit Court.

Federal Circuit Court of Australia

[14:41] Senator LUDWIG: As part of the coalition's promises, a number of agencies would be exempt from the efficiency dividend. If I am right about that, is it being applied in respect of this court—that is, that it will not be required to provide the efficiency dividend?

Senator Brandis: I will take that question on notice. Senator LUDWIG: Which part is unclear? Is it coalition policy to exempt—which was submitted to the PBO? Senator Brandis: I will take that question on notice. I want to consult a document.

Senator LUDWIG: Thank you. CHAIR: We will move on to the Australian Government Solicitor. Australian Government Solicitor [14:44] CHAIR: Welcome. You will be disappointed to hear that we do not have any questions for you or for the Office of Parliamentary Counsel. We will move on to the DPP after the break.

Proceedings suspended from 14:47 to 15:09

CHAIR: I call the committee to order. On the basis that this may not be a politically challenging set of questions, we will start without the minister. But if things do get difficult, we will pause slightly. We welcome the Australian Institute of Criminology to the table. Thank you for coming in at short notice. My apologies to everyone, particularly Mr Wilkins and his department, for the changed session. Hopefully, we will improve as the various estimates go on. Senator Wright.

Senator WRIGHT: I have some questions about the availability of certain types of data and, if it is available, where it is to be found. Does the institute collect figures that show the total national number of people received into prison each year? I will give you the background of what I want there. Do the figures show receptions over the course of the year, as opposed to a one-day census?

Dr Tomison: That is a good question. One of the outcomes of the royal commission into Aboriginal deaths in custody was that the AIC would conduct a five-yearly census of the number in corrections. That was based around an August census every five years. So for one month the AIC would run a census study to try and determine who was in custody and why. At the moment we are actually in the process of changing that piece of research. In the last few years the data collected by corrections has improved quite a lot, electronic records have improved quite a lot, and it is now possible to get a broad based set of data on an annual basis from corrections agencies. The AIC in the last six months has written to all corrective services agencies around the country, asking them to change the census survey into an annual monitoring program which would be collected probably

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biennially or triennially. At the moment we are still negotiating access to that data, but the intention is that that will be what happens going forward. So all I can say to you is that we have not seen that data yet, but we do know, from a number of negotiations with the corrective services agencies, that the data is available. The intention is to pilot with one or two states and territories and create a national set of data, over the next year or so, as best we can. So it is really a matter of watching this space.

Senator WRIGHT: Does there seem to be any resistance from any particular states and territories to that— either because they do not collect the statistics that you need or because of a lack of willingness to do that? Obviously it is going to rely on bringing together the data from all of the states and territories to be accurate.

Dr Tomison: We run a number of national monitoring programs, and the same issues apply to all. What we are going to do is start small in the sense that we are going to ask for a broad set of data—essentially, some very broad numbers on the number of prisoners who are being kept in remand and who have already been sentenced. All jurisdiction should be able to provide that. And then we are going to use some of the bigger jurisdictions to tease down to more specific sets of data and to see what is able to be provided fairly easily by the corrective services agencies. No state or territory has indicated that they are against the idea; some have some concerns about the ability to resource the project—and that is fair enough—but at this point in time it is going forward and, step by step, we are going to create that program.

Senator WRIGHT: Thank you for that. I am open to being advised whether those figures would show receptions over the course of a year. It seems to me it is unlikely that you would be able to get a one-day census, because that would rely on that data being available for every state and territory on a particular date.

Dr Tomison: We had the August census based police custody survey, and we found that was pretty much lacking; it did not give a good picture of what was going on. So we are actually aiming for annual data. Senator WRIGHT: Clearly then that data would be able to be disaggregated by state and territory, because that is where you would be getting the data from in the first place.

Dr Tomison: Correct. Senator WRIGHT: Essentially that was about the national number of prison receptions. I am also interested—and I think you have partly answered this in your answer—in having data about the number of people received into prison on remand each year and the national number of parole revocations each year. Is that something you would envisage is part of that aim or project? That is obviously data that is not yet available nationally. Dr Tomison: Figures on remand will simply be part of the program, is my understanding. The parole revocations, I expect, will probably build to that. I cannot say that we will have it in the first year of data collection, but I think we will try to get it. It is probably worth noting that the AIC released a report today looking at the use of remand for young people in detention. Actually, that just came out onto our website. You may be interested in seeing that. Senator WRIGHT: Yes I would be, thank you very much. CHAIR: Dr Tomison, do you do research into prisons and corrective services and that sort of thing—their effectiveness? Is that part of your work? Dr Tomison: Certainly, Chair, it is. Our bailiwick is to try and provide research of national significance across the whole of the criminal justice system, and that includes policing, the courts and also corrections. As in all cases, it is a matter of what access we can get and whether our jurisdictions want us to come and use their data or help them to evaluate their work. So what we are actually doing at any precise moment varies over time. At the moment, for example, we are working with Northern Territory corrections to create a risk assessment tool for Indigenous prisoners because the current omnibus risk assessment tool used for prisoners and their recidivism rates does not really suit Indigenous prisoners. That has national significance, and we expect the pilot we are doing right now will be picked up nationally into a broader project. That is one example of where we are actually working with the corrective services group. We also, of course, have the National Deaths in Custody Program, which has been going, and collecting data, for over 20 years now. That of course collects deaths in custody of police agencies and also for corrective services agencies. They are just two examples. We do try and cover as much as we can, but it is also a matter of getting access to information and having state and territory departments or agencies wishing to do that evaluation or research work giving us access. It is always a case by case basis, but we are certainly very interested in continuing our work in that area.

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CHAIR: Are you aware of any research into what is perhaps not factual information but things you sometimes hear, see or read of—mainly, I guess, in American movies—about the amount of drugs within the prisons and the corrective services arena? Has there ever been any research done in Australia on whether it is in fact the case that the use and availability of drugs in prisons is widespread? Or is it just a figment of the screenwriters' imaginations?

Dr Tomison: I can take on notice part of the question and I can also say there has been some research looking at the issue. One really interesting study, which was done in the last five years, essentially looked at waste water coming out of prisons, as a way of measuring whether inmates in custody had access to drugs. It is one way of trying to measure in a broad sense, not at an individual level, whether there were drugs in prions. That was quite interesting.

We also run at the Institute of Criminology the Drug Use Monitoring in Australia project. That involves us going to number of watch houses around the country on a regular basis and interviewing police detainees, those who have been detained and arrested for a particular offence. Though they are not convicted at that point, we ask them questions about their drug use. We also take a urine sample from those who volunteer it, and most do. We try and ascertain what drugs and alcohol uses happen for those who have been arrested for some purpose. We also use that as a way of gathering intelligence that we can pass on to police around the nature of drug markets in the area—for example, is heroin becoming more expensive or is there a methamphetamine rise in the number of detainees we are seeing in one of the watch houses in Western Australia? We are doing that sort of work all the time, which is quite important, I think.

CHAIR: Where would I go to find out if there has been any good research into the availability of drugs within prisons? Dr Tomison: If you let me take that on notice, I am happy to provide that through our library. The JV Barry Library, which is our internal library, is a comprehensive collection of work. It is probably one of the best collections in the country, if not in the world. Certainly we could do a quick search and get my drug focused researchers to have a look for you and identify some good research. I am happy to get back to you on that, if you like, as a question on notice.

CHAIR: I am a bit old fashioned in these things, but it always amazes me that there are allegations of the prisons teeming with drugs. That may not be correct, as I said. There is also the fact that apparently every schoolkid knows every drug pusher around the town but the police never seem to know. Has there ever been any research on that that you are aware of? It does seem that drugs are readily available to schoolchildren and every schoolkid seems to know where to go to get them. But the police do not. I am being very generic here. I wonder if anyone has ever done any research into that aspect of crime.

Dr Tomison: I am not aware of any research into it. Certainly the amount of policing intelligence is different the amount of arrests that police are able to make in this area. As to involving young people in research for the purposes of identifying drug dealers and stuff like that, I am not aware of any off the top of my head. I am happy to take that on notice if you like. The earlier part of your observation was around the teeming drugs in prison. I hear that that is probably an oversimplification. We also have the media involvement in those sorts of issues. Certainly there are drugs in prison. There is also the creation of illicit alcohol in prison. These things cause issues for our corrective services staff and other prisoners. The extent to which that happens is difficult to monitor, clearly.

CHAIR: As I said, I am very old fashioned. But it amazes me that there can be drugs or alcohol in prisons. One wonders what is happening to our system. As there are no other questions, thanks very much for your attendance and thanks for coming out of order. We very much appreciate that. Office of the Director of Public Prosecutions [15:21]

CHAIR: I welcome the Office of the Director of Public Prosecutions. Thank you for coming and sorry for messing you around a bit with the timings. Senator LUDWIG: I will start with some more general questions. I want to focus on the proceeds of crime legislation specifically and what matters you currently have before you that might be considered in train or still on your table but that have not been finalised. I do not want to go into areas that you feel uncomfortable with. I will start with this more general question: are there some matters currently before you and if so how many? We will take it from there.

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Mr Bromwich: That function was taken over by the Australian Federal Police at the beginning of last year. We have maybe one or two residual matters, and I am not even sure if we have as many as that now. That is now dealt with by—

Senator LUDWIG: It might be the residual matters that I have an interest in. If you can say, what matters are still residual? Mr Bromwich: I would have to check. There was one matter where there was a question of settlement, and I would not want to discuss that particular matter. That is the only one that I currently can bring to mind.

Senator LUDWIG: I will go back to what I know is on the public record. I recall that back in 2006 the Australian Federal Police put out a press release in relation to a matter that was about the seizure of planes and property and automobiles and the like. Assets were seized from Steven Hart. Is that a matter that you still have before you or is that a matter that I should properly ask about within the AFP?

Mr Bromwich: I understand that that matter has gone to the Australian Federal Police. Senator LUDWIG: Then the residual matters lie outside of that, correct? Mr Bromwich: I am aware of one other matter that is still with us. It was coming up to a court date and there was settlement discussions. I do not have at the front of my mind where that is up to. I last looked at in the last month or so. Senator LUDWIG: But you would not want to say what the case was? Mr Bromwich: I will see if I can locate the details about it, but it would be preferable not to comment on matters that may resolve at this stage. Senator LUDWIG: Prior to going to court. Mr Bromwich: Yes. Senator LUDWIG: I accept that. Mr Bromwich: It is not a matter of great moment, as I recall it. Senator LUDWIG: How many matters were transferred to the AFP? Mr Bromwich: I do not have that figure readily to hand. Senator LUDWIG: The information that I am looking for was the number that have been transferred and how long they have been with you—so from the time you opened a file in respect of the matter until you transferred them to the AFP. If that is readily available, that would be good. Or you can take it on notice. Mr Bromwich: We will take that on notice. But I can indicate that sometimes a matter of that kind awaits the outcome of criminal proceedings. For example, there was a trial that I was involved in through a brief at the private bar ran for trials in 2009 and 2010. It was not until that was well and truly out of the way that the criminal asset side of it was able to be resolved. Sometimes the delay is due to the delay in the criminal proceedings. A matter that is large and lengthy and has hung juries and repeat trials and son on contributes to that. The statistics in that area will be affected by considerations such as that. Senator LUDWIG: If you wanted to, you could note that they were waiting resolution of a criminal prosecution and the date that that was resolved. If that puts you to too much effort, I am happy to refine the question. I basically want to look at the workload that you have now passed to the AFP and at what stage they were at so that I can then subsequently follow up with the AFP to see where they are at with the various cases. Mr Bromwich: We will take the question on notice and get the information and the answers as quickly as we are able. Senator LUDWIG: Thank you very much. Senator SINGH: How many successful criminal prosecutions—say in the last 12 months—has the DPP conducted? Mr Bromwich: The last figure that I saw was a global figure of something like a 98 per cent conviction rate. But that conviction rate includes guilty pleas following which convictions were entered. Are you after numbers? Senator SINGH: Yes. Mr Bromwich: For the last financial year, 1,825 defendants were convicted of offences prosecuted summarily. There were 641 defendants convicted of offences and prosecuted on indictment. There were 683 defendants committed for trial or sentence. The annual report at page 73 has those statistics. Then those figures are broken down further in terms of guilty pleas, not guilty pleas and so on.

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CHAIR: The model litigant rules have been around for some time. What is your reporting period for any breaches of those model litigant rules? Is it calendar year or financial year or something else? Mr Bromwich: Strictly speaking, the model litigant rules are a civil litigation concept. The criminal processes and the criminal requirements and the way in which criminal litigation is conducted creates a very similar regime, but it is a different regime than that of the model litigant. I am familiar with the model litigant rules, because I have done a lot of Commonwealth civil work as well.

CHAIR: But that is not done by the DPP as such. Mr Bromwich: No. It is a rule that applies to the Commonwealth and indeed to state governments in litigation. They are expected to behave in a model fashion and operate under the model litigate rules. The Attorney-General issues model litigant guidelines in the federal sphere and all counsel who are briefed by the Commonwealth receive a copy of those rules and many of us have seen them many, many times. CHAIR: That is in relation to civil matters. Mr Bromwich: In relation to civil matters, yes. CHAIR: You said that there is something similar in relation to matters that the DPP deals with. You are expected to act fairly and— Mr Bromwich: There is a tighter and more explicit regime of obligations the apply to prosecutors. That exists in laws in relation to disclosure and in relation to the ethical obligations of prosecutors contained in a string of cases at appellate level and in particular in the High Court. There is a crossover between disclosure and other ethical obligations. A lot of those rules provide a pretty strong framework for the way in which prosecutions are conducted, remembering that it is an accusatorial system, which is not a feature of the civil system. CHAIR: In the criminal area, in the last reporting period—whatever that is—how many times has the DPP been criticised for not appropriately conducting litigation? By the same token, how many times have they been praised by the bench for being good litigants? Mr Bromwich: Praise is rare to come by in the criminal justice system. Occasionally you might get a kind word, but generally speaking you are expected to do it properly and fairly and no-one praises you for doing things that you are meant to be doing anyway. There has not be significant criticisms that I am aware of. Complaints occur in the course of trials. Sometimes they are dealt with by way of an adjournment or something of that kind. But the prosecutors are very used to the rules under which they operate. Anything other than accidental breaches are rare. Senator Brandis: I do not think that Her Majesty's judges consider it their function to lavish praise upon those who represent the crown for fulfilling their duty in the most punctilious manner. CHAIR: There was an article in the Australian back in April of last year in which there was some criticism of the way agencies conduct themselves in court. But I gather from your answer that that relates mainly to civil areas—the tax office and others. I see that according to this my then colleague Senator Gary Humphries raised the issue a number of times. That is not something that you are involved in. That would be more the AGS. Mr Bromwich: I do not know what the article is and therefore I cannot confidently say one way or the other. But the model litigant rules are certainly an issue. They are particularly an issue when you move outside of the AGS into private law firms, which are used to an extent—occasionally—in my experience. CHAIR: I see from this article that Senator Humphries was quoting a 2010 decision in a case known as Denlay and the Commissioner of Taxation. But that is not something that you are— Mr Bromwich: That would certainly by a civil case. The biggest area where you have issues from time to time is in relation to things like disclosure. That is a continuing problem, I suppose, in law enforcement. You are meant to disclose things that are relevant to a defence and a range of other tests. But sometimes you do not know what the defence is, so you are trying to anticipate or guess what the defence might be and disclose accordingly, and then the investigative agencies in turn, who are the major repositories of documents, have to guess that as well. So that is an area which is always attentively looked at, and that is where you can have issues. CHAIR: Your organisation is never accused of running up costs or delaying matters, making it difficult for people whom you are litigating against to get their day in court at a cost that they perhaps might be able to afford? Mr Bromwich: Ordinarily, those issues to do with delay when accusations are made about delay against government as litigators relate to government as a litigator being a defendant or respondent to an action—when that criticism is made, in my experience, that is where it falls. Occasionally, the prosecution will seek an adjournment or additional time to gather further evidence to serve further documents and that sort of thing. But it is accepted that that is part of what happens in criminal litigation. The prosecutor rarely has any interest in delay

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for its own sake; quite to the contrary. We have problems with memories fading and things of that kind. We like to get things on as quickly as we can, resources permitting. CHAIR: I guess you would not be able to answer this, or would not want to, but do you have experience of people who just say, 'It's too expensive; I've got no way of getting decent counsel; I'll just plead guilty and get it over with because I simply can't afford the price of justice'?

Mr Bromwich: It is not a common thing, but it is not at all uncommon, if that makes any sense, for an accused or defendant to indicate a wish to plead guilty and then qualify that in a way that indicates they are not really admitting to guilt. That is known as traversing the plea. On occasions, the Crown will indicate to the court that a guilty plea should not be accepted for reasons such as that. As a prosecutor, you are very alert to being sure that the defendant is properly acknowledging guilt in order to plead guilty. Prudent defence lawyers—I have done a fair bit of that as well—if there is some issue on that will often make sure they get written instructions. In some key cases it is not uncommon for the defence lawyers to get written instructions to ensure that the person understands what it is that they are dealing with. But we do not have a no-contest type system like they do in the United States.

CHAIR: Is it not common that people simply cannot get decent legal representation and simply find it easier to plead guilty? In those instances, when you say to the court, 'I don't think this should be entered as a plea of guilty,' what happens then? Do people always somehow manage to get some sort of lawyer, good, bad or indifferent?

Mr Bromwich: I cannot really delve into the frequency of it, but on occasions guilty pleas have not been accepted. Matters have been then referred to trial or hearing. What more commonly happens, in my experience— and I have to limit it to my experience rather than speak for the office as a whole—is that at the point at which a reservation on a plea is advanced, which tends not to be about money but rather about an element of the offence, it is then the subject of a discussion with a lawyer, sometimes a pro bono lawyer appointed by the bar association, say in New South Wales. Either a more limited trial is held or there is advice given. Sometimes it results in a compromise on the charge, which avoids that element. For example, if there is an element of knowledge as opposed to an element of 'ought reasonably to have known', the matter may resolve on occasions on that lesser basis—the 'ought reasonably to have known' instead of actual knowledge—and those sorts of things. But it is difficult to generalise. It turns on the individual case, on the individual facts and on the individual defendant.

CHAIR: So it is not a common thing with cases in which the DPP is involved that people are unrepresented, either because they cannot— Mr Bromwich: We certainly have unrepresented defendants, but our profile of people we prosecute, particularly in the more major matters, is somewhat different from state prosecutors. We are tending in key areas to deal with individuals who are somewhat better off than that. That is probably more in the social security offending, but then that tends to be, by and large, a more black-and-white situation—even if it is evidentially complex, the facts are reasonably black and white, ultimately.

CHAIR: Thank you very much for that. If there is nothing else for the DPP then thank you very much for your attendance. CrimTrac Agency [15:40]

CHAIR: We will move on to CrimTrac. Senator LUDWIG: While the CrimTrac personnel are getting into their chairs, I will take up that amount of time. I have some more general questions at first. As I understand it, the types of information you hold are commonly called third party collections. Could you describe what third party collections are composed of, for example. Mr Smith: With respect to the third party collections, we house the data that is collected by police forces but we actually do not manage the data for them. Senator LUDWIG: Do you hold information about individuals who are convicted of particular crimes or information about whether they have been charged with or suspected of a particular crime? Mr Smith: There is a broad range of data. We house the data relating to fingerprints, for example, for all the police forces around Australia, and the DNA profiles, but no biographical information with those profiles. We house data related to what could broadly be called persons of interest based upon conviction, association or otherwise coming to the notice of police. CrimTrac's job is to manage that information as the service provider, but

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the provision, consumption and removal of that data are the responsibility of the various police forces that we are in partnership with. Senator LUDWIG: So you would not respond to individual requests about individual convictions of persons of interest. The various police forces would do that.

Mr Smith: No, all the requests specifically for information—depending on the system—are done by the members of the various police forces around Australia through their local systems, by and large. So a police officer in New South Wales, for example, would access their local system; in that case it is called by the acronym COPS. That search will then go to the national database, where we hold the national view of that particular name, if it is there, and then it is given back to the police officer through their local system.

Senator LUDWIG: So, if you were to be asked to institute automatic numberplate recognition work, have you undertaken any feasibility study of how you would do that? Mr Smith: Yes, there was a significant study done back in 2008 on what could be done with respect to numberplate recognition. That particular study was put before the board of CrimTrac, which is made up of all the commissioners of the country, and the board did not desire to progress that any further. That was a very broad-ranging, complete national numberplate recognition system, managed locally. We have also had a cursory look, at the moment, at whether or not there would be a role for CrimTrac to provide access to vehicle-of-interest data, but that would primarily be through local systems just looking at vehicles of interest which would be recorded nationally, if that makes sense.

Senator LUDWIG: So, to be short, you do not have a current request to look at national licence plate recognition. Mr Smith: We have a piece of work at the moment where we are looking at whether or not CrimTrac would have a role in that, but we have not progressed that very far at this stage. In accordance with the governance of CrimTrac, that would be looked at through the CrimTrac board and perhaps with assistance from the standing council of police ministers.

Senator LUDWIG: Where is that up to at the moment? Is it a matter before the board or is it a matter that is a pilot program within CrimTrac? Mr Smith: It is probably best if I explain very briefly the role of CrimTrac and some of the distinctions which are not within CrimTrac's mandate. CrimTrac's responsibility is to respond to high-level policy and strategic direction from the standing council on police ministers. I am responsible to the board for implementing their direction. On matters of specific policy, however, we work very closely with the Attorney-General's Department as the policy lead on a significant number of matters. In working with our colleagues within the Attorney-General's Department, a position may well be put outside of the CrimTrac board as a provider of a solution in accordance with a particular policy directive. Perhaps I could defer your question to the department, because, from a policy perspective, rather than from an implementation perspective, they may be able to assist you better there.

Senator LUDWIG: We get to talk to the department later on this evening. What I was more specifically interested in is whether or not you had any current work that you were doing as a consequence of a recent request by the relevant justice minister or by the department itself.

Mr Smith: As I indicated, we have given that preliminary advice that, from a technical feasibility point of view, CrimTrac could definitely provide capability—and that was around the concept of vehicles of interest, which would be housed as information centrally and then accessed by local systems, depending on what those systems may be.

Senator LUDWIG: But you have not had a recent request? Mr Smith: It was recent, senator. Senator LUDWIG: When was that? Mr Smith: I do not have the details here, but it was probably around the first week of October. Senator LUDWIG: What form did that take? Mr Smith: It was a conversation by email between myself and some officers in the Attorney-General's Department.

Senator LUDWIG: Can you make those emails available? Or do you want to tell me what they said? Or both?

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Mr Smith: It was a very simple request. It was within the broad parameters of the coalition policy with respect to the use of ANPR, particularly around vehicles of interest at sensitive locations such as ports and airports. We had a look at the way that we could respond to that particular request if it were more formally made and indicated back to the department that it was a very feasible thing to do, subject to the normal approvals that are required through the CrimTrac governance structure. The solution, as I indicated, is actually quite a simple thing, and that would be making available vehicles of interest that are of interest to police officers around the country on a central database and then making that available to ANPR systems around the country.

Senator LUDWIG: For that to progress, what needs to happen next? Mr Smith: There would have to be a policy decision made by one of our partner agencies to progress it with the CrimTrac board of management. Senator LUDWIG: And one of your partners includes the Attorney-General's Department?

Mr Smith: The Attorney-General's Department is one of our partner agencies. Senator SESELJA: I just have a couple of quick questions. I am interested in the DNA matching capability within CrimTrac. I think there was an article in September talking about how you are looking to expand that capacity. Are you able to briefly talk us through what that expansion looks like? Mr Smith: Certainly, senator. The technology behind DNA as a matching capability advances very, very quickly, together with the science. The science of DNA matching, as you are probably aware from any number of published reports, moves quite rapidly. The DNA matching capability that historically existed when we started to use it as evidence in criminal prosecutions used a very low number of matches. It used some pretty basic technology when you compare it with the technology that is currently available. CrimTrac started work on its system for DNA matching almost a decade ago. It has been implemented and operating for quite some time, but, as the science progresses quite rapidly, so too does the technology that surrounds the science. We have come to the end of life, if you will, of our current DNA database . What we sought from the market was an expression of interest; it was not actually a tender as such. We wanted to explore with the market the sorts of technologies that are currently available. This is commercial at the moment—we are in the process of evaluating those responses. As I indicated to Senator Ludwig in response to his question, what we will do now is look at the responses and do an evaluation. The evaluation panel will include people who have expertise in the policy, the business, the science and the technology. We will then take that back to the board with a report and recommendations. The goal is to get the best technology we can for the money we have and to give that to the law enforcement police officers in the country. The other thing it is important to recognise with respect to DNA is that CrimTrac manages the DNA-matching technology not only for police. It is used by forensic science around the country as well. Various institutes, such as the Victorian Institute of Forensic Medicine, also use the technology. So what we are looking for is technology which will meet a raft of requirements—from investigative matching right through to things like disaster victim identification and the identification of unidentified human remains. Senator SESELJA: How extensive is that database? How many individuals' DNA do you have on that database? Mr Smith: It is in our annual report. The total number of profiles we had in the database as at 30 June 2013 was 749,601. That is on page 31 of our annual report. That is not necessarily 749,601 individually distinct records. There may be a number of profiles which overlap. But that is the number of profiles in the database. I reiterate that the profiles are put in there according to the law of the relevant state or territory. We just manage the database on their behalf. Senator SESELJA: What is the amount in the CrimTrac reserve fund at the moment? Mr Smith: Presently the amount is approximately $115 million. As of 1 July 2013, it was $111.98 million. That balance does fluctuate with expenses and revenue. Senator SESELJA: How much of that has been used to fund further law enforcement activities or upgrades over the past few years? Mr Smith: I will give you a quick history of the special account. CrimTrac is solely funded by its revenue. Historically this came from the subscription of the various entities which were partners of CrimTrac. In about 2006, by a decision of the board supported by ministers around the country, it was decided that CrimTrac would take responsibility for the revenue raised by the business, if you like, of background checks. Police records come into CrimTrac centrally. They are then used by agencies which wish to do a background check and CrimTrac receives fees for that. Until last financial year, that was always a surplus—it continued to rise due to expenses

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being less than revenue. Last financial year, there was a small impact on revenue, so we took a little bit back out—to the tune of about a million dollars. This year we are looking at a small surplus once again. So the money, according to a directive of the then finance minister, Senator Minchin, is in the special account for the purposes of CrimTrac solely. We go through the normal appropriation processes to access those funds.

Senator SESELJA: So the $111 million there at the moment is there for CrimTrac's purposes. Does that mean it gets reinvested into expanding the operations of CrimTrac? It is quite a large amount to have in one agency's reserve fund.

Mr Smith: It certainly is and of course that attracts attention. But the purposes which are outlined in section 5 of Senator Minchin's directive largely state that it is there for the business of providing information services to the police forces—the partner agencies. What we have done recently with CrimTrac, with the Attorney-General's Department and the Department of Finance, is establish an investment path for all those funds out for the next 10 years.

So we have an investment strategy. We have a series of strategic plans that we will be taking forward to both the board and to the standing council of police ministers. Senator SESELJA: Sure. So just casting back then over the last six years, and this may be on notice: are you able to tell us how much of the reserve fund has been reinvested into expanding the operations of CrimTrac?

Mr Smith: I would have to take that on notice because at the end of each financial year CrimTrac, historically since 2006, has always been in a surplus position. But as to what has been there for a capital investment—systems investment as opposed to day-to-day operations—I will need to take that on notice. Can you indicate what period? Back to 2006?

Senator SESELJA: Yes, back to 2006 is fine. CHAIR: Who sets the fees that you charge for your services? Mr Smith: The process of fee setting is done in conjunction with the Department of Finance. So the process is reviewed annually. They look at the cost of running CrimTrac, the cost of the police forces that partner with CrimTrac. Each state and territory, if you like, is the retail hub for the wholesaler, and we are the wholesaler of the information. So what is done is that we look at the costs of running CrimTrac, the cost recovery guidelines and the Department of Finance, and then there is this annual fee-setting exercise. I would note that there has been little or no movement on the fees for a number of years. Maybe Ms Mayo would like to add to that, rather than me trying to read her annotations. Ms Mayo: The fee review is done annually and run by our CFO in accordance with the guidelines that we have issued through the Department of Finance. A recommendation is put to the board. The board is part of the governance and approval process, along with the capital management plan—for example, the budget, the work plan et cetera—and at that time a recommendation is put forward to the board on what should happen with the fee structure based on what it has anticipated the revenue, the capital expenditure, the expenses et cetera will be for a period. So ultimately the board then would approve any increase or decrease as the case may be in the fees, depending on the actual financial position and the projected, or the forecast, work plan. CHAIR: You have never been required to make a dividend payment to the shareholding minister? Ms Mayo: No, we have not. CHAIR: Is it that you are saying, by legislation, the reserve fund can only be used for the purposes of CrimTrac? Ms Mayo: The board of management for CrimTrac is set up pursuant to an intergovernmental agreement. So that is the operational—it is not a board in the true sense of the word. So the CEO of CrimTrac, Mr Smith, reports directly to the relevant minister and— CHAIR: And that is finance, is it? Ms Mayo: No, it is Minister Keenan, the Minister for Justice. The agency itself falls within the administrative arrangements in the jurisdiction of the Attorney-General's Department. CHAIR: Okay. Mr Wilkins: It might be useful to make the point that CrimTrac is a federal body and that although the Commonwealth minister has a type of responsibility for CrimTrac, it is very much a beast of the entire federal system. So the idea of dividends being paid to the Commonwealth government, I think, would probably stick in the craw of the states and we might find this body dissipating. I just make that point actually in case—

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CHAIR: But I mean the states and the Commonwealth have not said to CrimTrac, 'Gee, you have made $100 million profit over the years; maybe you are charging us too much. Maybe we should be paying less for the services you provide.'

Mr Smith: If I may, I would like to address that particular point. I know that in many places $100 million looks like a lot of money, and it is, but when you look at the cost of the systems we have responsibility for, and the fact that we are making provision for the replacement of those very expensive systems, without the benefit of other investment strategies, it is actually a very wise thing to build up the surplus we have, because if you look at the cost, for example, of the national fingerprint identification system you are talking about tens of millions of dollars worth of investment over a number of years. So when you make a strategic decision about a particular investment, whether it be around number-plate recognition or whether it be any other information system, for example, they are significant investments. One of the things I am responsible for doing is to ensure we have the capability to invest in some of these high-cost technologies without having to bother the treasuries, both state and territory.

As I indicated earlier, what we have done is to have an investment pathway and a capital investment plan that indicates how that money can be wisely spent on a number of technologies, including the replacement of existing capability. So I would not like to leave the committee with the impression that we are just sort of banking money for no good purpose.

CHAIR: Perhaps that begs the question that in the last few years you have not been banking anything. You lost a million and won a million and perhaps you are charging too little if you have the prospect of very, very expensive technology that is needed to beat the criminals.

Mr Smith: Indeed, and one of my responsibilities—together with the department and the Department of Finance in one path, and then with the board in the other—is to ensure that we give them that comfort of the diligence we are applying to the money we are banking, and to make sure that we have a good investment strategy and we know exactly what we wish to do with that money. If I were of a mind that we did not have sufficient funds for some of the big projects into the future, then of course I would go to the board and to the department and make a recommendation that perhaps the fees are inadequate. At the moment I have a high degree of comfort that over the next foreseeable number of years we have the ability to meet emerging technology requirements, run the business and continue to have sufficient funds there to provide the comfort the board and the department need.

Mr Wilkins: If the CEO came to me and said 'We need to change the fees, because I need more revenue,' we would say that you cannot do that. This is not a tax; it is a fee for service. Price setting is around cost recovery plus maybe return on capital, but it is not about raising revenue, so the department would not be agreeing to that approach.

CHAIR: If there were a new, beaut technology that by turning a switch would identify every criminal in the world, but it cost $300 million— Mr Wilkins: But at a Commonwealth level you cannot raise that as a fee for service. It is essentially a tax, so you would have to go to the Treasurer and raise a tax or go to the consolidated fund and take it. The point I am saying is that for the services CrimTrac is providing you are only entitled to charge a fee for service. You are not entitled to charge whatever you need for future investment.

CHAIR: Now you are confusing me. I understood Mr Smith to say that the $100 million reserve was there in case he needed it for new technology— Mr Wilkins: It is a return on assets. So it is actually a legitimate return on capital. But you cannot just set the price to raise the amount of revenue you need. He has a legitimate reserve that has been built up through a return on assets, if you like to think of it that way. So it is a cost-plus system. The point I am saying is that it would be illegitimate for CrimTrac to say, 'Listen, we need more money because there is this terrific technology we want to invest in, so can we put up our fees?' We would say, 'No, your fees are set in terms of what it costs to deliver that service. If you want more money we are going to have to go to the Treasurer, or to the consolidated fund or we are going to have to raise a tax somewhere.'

CHAIR: From all the state governments that use it? Mr Wilkins: All—from all the state governments or the federal government. The point is that you would not do it by raising the price for information. Senator LUDWIG: Going back to the earlier answer you gave in relation to the number-plate recognition software. You said it was a matter that was looked at way back in 2008. Is that correct?

Mr Smith: That is correct.

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Senator LUDWIG: You had some preliminary findings back then. What happened to that? Why wasn't it progressed at that point? Mr Smith: I was not present at the board decision, but I have had discussions with commissioners who were present and I have taken cognisance of the various minutes of the boards, going back through 2007 and 2008. Primarily, I think the best way to summarise the decision is that the investment was far too high. The risks were very extensive, because we were talking about a full national number-plate-recognition capability that would do all of the things you possibly could, but at a national level. Probably the best example you could use as an analogy is the one that is used in the UK, which is a single national system. It is a very extensive and intrusive system, and the board did not have the appetite at the time and did not approve that particular request. From recollection it was around a $40 million investment at the time, and, anyway, at the same time quite a number of states and territories had extensive investments of their own that would have emulated the technology.

Senator LUDWIG: Is that summarised anywhere as a public document—the risks, the examination? Mr Smith: I could not tell you whether there is a summary of it. My answer is based upon the determination of the board and the conversations I had with board members at the time. I could have a look to see whether there was any official announcement, but it was an internal process. Senator LUDWIG: Are the determinations of the board internal deliberative documents? Mr Smith: Yes. Whilst we call it the board of management of CrimTrac, it is not a board, as in a public entity board. For that reason it is probably best described as an advisory board. My responsibilities are actually under the FMA Act, not under the statutes that apply to company directors and their boards. So they are not published in a way that the determinations of corporate boards are published. Senator LUDWIG: What, for example, would be some of the risks that were identified back in 2008? Mr Smith: It was largely to do with technology project risks. Senator LUDWIG: I understand that. A blowout in costs for example. Mr Smith: When you are talking about a $40 million project that was to have national implications, and all the legislative and technology risks associated with it, the board, as I understand it, was quite reluctant to go down that path. I think many of us could drag out of the public record many examples of failed, high-cost, high-risk technology projects. Senator LUDWIG: Has anything changed since then that would make it more appealing—the risks would still be there and the $40-plus million would have grown? Mr Smith: One of the important things that is always on the mind of board members—it is always risky talking for others—is that you need to focus on the outcome you wish to achieve and not on the technology itself. Whilst the technology exists to have a national number-plate-recognition capability, the first thing you need to do is to go back and ask why we need that. Number-plate-recognition technology is primarily used as an enforcement capability for a regulatory framework—it is around registration of motor vehicles and such like, or their improper use. So, as you drive north from Canberra your number plate is recognised as soon as you head towards Sydney and then it is recognised a second time and based on that particular technology they determine whether or not you have been speeding. But that technology is not widely used elsewhere in Australia. Each state and territory has its own requirements and outcomes it wishes to achieve and it invests in that technology for that purpose. To try to do that at a national level, you are trying to herd the cats, in a policy and technology sense. So the first thing you need to do is look at the outcome. At the moment I do not believe there is a national appetite for a single outcome from an investment of that scale. Senator LUDWIG: So, for argument's sake, in the ACT you do not require a registration label because they must be using a form of technology that allows them to have number-plate recognition and brings up the various pieces of information the police may require. Mr Smith: Indeed, and a lot of police cars around the ACT and New South Wales have ANPR technology. It is almost instantly recognising the status of motor vehicles. And in your home state of Queensland, Senator, shortly you will not have to put a label on your car, for the same reason. Senator LUDWIG: I think they have already forewarned me about that. So each state and territory is developing their own technologies around this enforcement requirement, which is perhaps a better way of putting it. Mr Smith: In some states the information is regulated in a different way. In the ACT, as I understand it, the retention period of the record is much shorter than it is for, say, New South Wales. So you have a legislative and policy framework you need to consider when you are looking at a national capability, as opposed to a local one.

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Senator LUDWIG: So it almost becomes a silly suggestion to then say, 'Can we have a database of persons of interest around wharves or around airports,' because already we have states with the technology to look at vehicles and the like. You would have to invent a whole new system.

Mr Smith: With respect, I do not agree with that. The interest at high-risk locations such as ports and airports is with respect to vehicles of interest as opposed to the regulatory type of use of the technology. What I mean by that is that through various means a police force may identify vehicles that are of interest to them, as the name obviously suggests, and it may be very wise to know whether or not those vehicles are accessing an airport, a port or another high-risk installation. The technology in that particular conversation is around the data and how you share the data of high-risk vehicles, as opposed to the technology that would recognise those vehicles at the location.

Senator LUDWIG: But it would still require a separate nationally built system to do that? In other words, CrimTrac—like your DNA database and your fingerprints—would have to construct a new database to pull all of those pieces of information together.

Mr Smith: You would take the record from the provisioning state and you would make it available as a national view, rather than the disparate federated view you currently have, where information is housed within each state and territory. There has been much discussion recently around the mobility of particular organised crime motorcycle gangs, so the ability to have a national view of that information is actually critically important in dealing with a highly mobile criminal element or those who have improper motives towards high-risk installations. So you are talking about the value of the information more than you are talking about the technology that provides that information. So the true value is the data that is shared.

CHAIR: Thank you for your evidence. We now call the Australian Crime Commission. Mr Wilkins: Before proceeding, this morning I took on notice from Senator Singh the question of getting information from the department of education about the Creative Young Stars program. I have some information that I can hand up to the committee. CHAIR: Thank you. It is very generous of you to do that.

Australian Crime Commission

[16:14] CHAIR: Welcome. Senator SINGH: In relation to the justice's announcement recently that the Australian Crime Commission

will house the Australian Anti-Gangs Intelligence Centre, what instruction has the ACC received from the minister or his office relating to this centre, thus far? Mr Jevtovic: We have received no instructions as to how the Anti-Gangs Intelligence Coordination Centre is to operate. We have put forward proposals as to how the intelligence centre could be most effective in the context of providing a national conduit for intelligence collection, analysis and sharing. That has been accepted. We are now in the process of transitioning this centre and we will have it up and running on 2 December.

Senator SINGH: When you say 'transitioning', do you mean transitioning it from the AFP? Mr Jevtovic: Correct. Senator SINGH: Wouldn't you say this is just continuing the work of the previous Labor government's anti-gang intelligence centre which was located in the AFP? Mr Jevtovic: From my perspective it is obviously not continuing, because the centre was not to be located in the commission; and it is now. Senator SINGH: No, but I am trying to see if there is any difference. From what I understand, the budget is the same—it is a $64 million budget, as it was under the previous government—but the administration of it is just being moved from one agency to another. I am trying to see if there is any difference between the previous government's National Anti-Gang Task Force, and its associated Australian Gang Intelligence Centre, and what has been proposed by Minister Keenan. I mean, if it is the same, it would be welcomed; I am just trying to see if it is. Mr Jevtovic: In the context of the national anti-gangs squad, that is a matter for the AFP, which is the lead agency running the squad. In the context of the intelligence centre, now that it is located in the Crime Commission it will have full access to the Crime Commission's national intelligence holdings. It will become directly linked to the national intelligence fusion capability. It will draw on the ACC's asset alien database, which

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has direct secure conductivity to all states and territories. Locating it within the ACC makes those capabilities available to the centre. Senator SINGH: Are you saying it is better placed within the ACC than within the AFP? Mr Jevtovic: For the reasons I have just outlined, I think it is more appropriately placed, yes.

Senator SINGH: So I would assume that the other centre, which was basically the same thing, will be abolished from the AFP. Mr Jevtovic: No. It was not established in the AFP; this is a new strategy. The centre and its capabilities are being developed within the Crime Commission. The AFP has been working closely with us in transitioning whatever resources were available, and the funding, and we are now in the process of implementing this centre in the Crime Commission.

Senator SINGH: But it was under the AFP's administration before, was it not? Mr Jevtovic: Yes, it was. Senator SINGH: How many successful criminal prosecutions in the last 12 months have resulted directly from the ACC's investigations? Mr Jevtovic: That is one of those difficult areas for us to measure. The ACC holds the nation's criminal intelligence holdings. That is accessed by law enforcement agencies across the country. Unfortunately, we do not have the technology that informs us of the use of that intelligence by state or territory agency, or by a Commonwealth agency, in every investigation they undertake. So there could be occasions where data that we hold, or have analysed, will be utilised in the course of an investigation but it is not necessarily the case that the commission would be made aware of that. That is the nature of our role. We do have, in our annual report, data the talks about those things that we become aware of. Where we work jointly, for example, we are able to report on that; or where one of the states or territories might inform us of the use of intelligence in their investigation, we will be able to record that. But that is not always the case. If you look at our annual report, on page 115— depending on what year you are asking about— Senator SINGH: The previous year. Mr Jevtovic: In the previous year we had some 26 disruptions as a result of ACC involvement; 185 people have been charged; 332 charges were laid; 38 people were in fact convicted. We go through a range of proceeds of crime that were achieved: some $83.8 million in proceeds of crime; $26 million of forfeitures; $159.98 million in tax assessments issued; a number of firearms seized; cash seizures of $16.3 million; drugs seized at a street value of $589.5 million; some $84.7 million in the value of illicit drug production potential precursors seized. Senator SINGH: From your previous answer, those figures are only from jurisdictions that you have worked with or that have informed you of the outcomes of those initial investigations. Mr Jevtovic: Correct. Senator SINGH: So the ACC does not seek the information itself, thinking, 'These were our original investigations; let's see where they've ended up'? It waits to see what comes from other jurisdictions. I am just trying to work out how your data is collected and how the ACC works to have some kind of benchmark or follow-up from its original investigations. Mr Jevtovic: As I said earlier, one of the challenges is that, when you hold intelligence and data on behalf of the national law enforcement family, that intelligence can be accessed at any time. We do not have a methodology that records the accessing of our data on every occasion and we do not have a follow-up that then questions why a particular agency may have accessed it. It would be quite a burdensome issue for a range of agencies around the country to have to report back to the ACC on every occasion its intelligence may have been used, because, in some instances, it can be used on multiple occasions on any given day. Senator SINGH: So you are quite happy with how it is. You do not want any new data software that would provide that kind of recording of the accessing of the ACC's investigative information? Mr Jevtovic: To say that we are happy would not be the case. It is an issue around performance measures that we are challenged with all the time. I suspect it is not just the Crime Commission; any agency whose responsibility it is to provide data would, I suspect, be in the same boat. It is something that we continually discuss as a senior executive and we continue to explore how we might improve our ability to report in that framework. Senator SINGH: You mentioned proceeds of crime. How has that worked in the last 12 months? What have been the outcomes there? How well accessed has it been from what has been available?

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Mr Jevtovic: As the national criminal intelligence agency, we actually do not take proceeds of crime action ourselves. What we do is provide intelligence to other agencies that can give the grounds for progressing proceeds of crime action, or it can support investigations that other agencies are conducting. So we provide the intelligence dividend that allows others to then use their own proceeds of crime legislation, whether that be a state or territory or in fact a federal agency.

CHAIR: Mr Jevtovic, you are acting CEO. What is the nature of your acting appointment? Mr Jevtovic: Thank you, Chair. The previous CEO, Mr John Lawler, retired on 16 October. I was appointed by the Attorney-General as the interim CEO from 17 October to a period in January. CHAIR: Is the search on for a permanent CEO?

Mr Jevtovic: My understanding is that the department is working with the Attorney in progressing that. CHAIR: Just refreshing my memory on the ACC, I once chaired the parliamentary committee. Just looking at jobs list current vacancies, I see it starts off saying 'Unfortunately, due to the Australian government's announcement, the Australian Public Service is to be reduced by 12,000 employees by natural attrition. All APS recruitment is now on hold.' The 'unfortunately' seems to be a bit of a commentary on government policy. Mr Jevtovic: Is that on our database, Senator? CHAIR: Yes. Nothing turns on it; it is just that I happened to be looking at that. But it seems unusual that you would have a comment about current vacancies starting off with the word 'unfortunately', which really suggests that you are giving a view on what might or might not be a good or a bad thing. It is a bit unusual. That really leads me into the questions that I really want to ask. What is your appropriation for the current financial year? If you have it there you can give it to me. But, if not, could you on notice compare that to what you had in the 07-08 year, the 08-09 year, the 09-10 year, the 10-11 year, the 11-12 year? Has your funding gone up each year over the last, say, five years? Mr P Williams: I will comment on our funding. If you were to examine the total revenue received by the Crime Commission since 2008-09 up to the end of the last financial year, there has been a reduction in total revenue in the order of just under $106 million in 2008 to a little over $98 million in the last financial year. CHAIR: So has it been gradually coming down or is there any big jump in that over the last— Mr P Williams: No, there have been some fluctuations. For example, it dropped a little in 2009-10 and then rose slightly in 2010-11. But it is true to say there has been, over time, a general reduction in total revenue to the Crime Commission. CHAIR: Could you on notice give me what the total figures were, starting at 07-08 perhaps and going through to the current time. Is there any way you can index that to CPI for me? Picking the first of the years I am talking about, 2007-08, what I am interested in is, if that same amount had been indexed to CPI over the years to now, could you indicate the actual and what it would have been had it been done with the CPI? Mr P Williams: Senator, we will certainly take that on notice and, as you have requested, do our best to index it against CPI. CHAIR: I do not need it to be terribly precise; I am just trying to get a general idea. If you add in an indexation, the actual funds given to you over the last five years to actually fight crime has been quite substantially reduced, I would imagine. Would that be a fair statement? Mr P Williams: It is certainly true to say that there has been a reduction in the gross revenue, Senator. CHAIR: What about your staffing levels? Can you tell me what your staffing level is? I had some association with the ACC some years ago and was always very impressed with the work you do. I used to know what the staffing levels were, but can you tell me what your staffing levels are now, the total in your bailiwick? Mr P Williams: Yes, Senator. As always, there are several different measures for measuring staffing, be it head count, FTE or average salary level, but perhaps the most useful is in terms of FTE. At present our FTE is 585 FTEs, noting that it does vary and taking into account the requirements to recruit according to several protocols now. We have identified that the desired FTE staffing for the agency is in the order of 600 FTEs. CHAIR: Six hundred? Would you have figures immediately available for when I was around, which I think was in the 2007-08 year? What was the staffing back in those days? Mr P Williams: Again, we get into the matter of what measure— CHAIR: Use FTEs. I think that is the easiest way of getting a comparison. Mr P Williams: Yes. It may actually be easier to take that one of FTEs on notice. The numbers I have do not go back to the period you have just requested.

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CHAIR: Give me what you have and get the rest on notice, would you? Mr P Williams: Sure. In 2011-12, our FTE was 622. That comprises Australian Public Service staff as well as contractors and secondees. At the end of 2012-13 it was 597 FTEs, and that also includes a mix of contractors and secondees. CHAIR: Currently it is 585. That is the same composition. Mr P Williams: That is right. CHAIR: It has been coming down quite substantially. Where have those staffing reductions come from— what particular area? Mr P Williams: There have been staffing reductions made in Public Service staff. We have, for example, reduced our senior executive service component by two SES officers in the last 12 months. We have reduced our executive level staff and there has been a reduction in public sector staff, but it is also true to say that over time the number of secondees that the Australian Crime Commission has funded from the states and territories has also reduced. Mr Jevtovic: It would also be appropriate to say that the area that has probably taken the greatest hit is our support area, our back of house areas, obviously leaving the front-line capabilities alone as much as we can. It is those back of house areas that have been specifically targeted. CHAIR: Are the back of house areas the tea girl and the waste paper emptier? I would imagine not. What do you call 'back of house' areas? Mr Jevtovic: Our administrative support capabilities would be lessened. Some of your capabilities—your finance areas and your HR areas—are very lean. This has been a process for a number of years now. CHAIR: They would all impact on your effectiveness to do what you are required to do, I would imagine. Otherwise, why were they there? Mr Jevtovic: It does cause you to use technology more wisely. It does cause you to be more efficient. But ultimately there are some things where we change people's roles so that the things that need to be done are being done. The reality is that in some instances you might stop doing something because you just do not have the resources to do it. CHAIR: As I recall, again going back several years, you had a lot of technology that assisted you in doing some of the quite remarkable things you do that I think most people do not understand—and which I did not understand. Unfortunately, I have now forgotten most of it. Does it limit the amount of technology you can acquire in your fight against organised crime? What do you do for capital works these days? Mr Jevtovic: We make do. For example, the ACID/ALEIN system that we operate is an antiquated system—it goes back to the 80's—and over the years it has effectively had Band-Aids put on it to continue. That is a reality, and we would obviously be looking in the future at options as to how we might renew that capability and working with the department and others as to how we might source funding to upgrade that service. It is very difficult, because the ACID/ALEIN capability is the mechanism by which states and territories have a conduit to the Commission and all the intelligence we hold. It is a clunky capability but something we are very focused on and is a high priority for us moving forward. CHAIR: You guys are always a bit constrained because you have to do things by the book and you have to get taxpayers' money for new investments, whereas you are in a constant battle against organised crime—which never has any such constraints—and they seem to have quite unlimited funds to do the sorts of things they do. That is my assessment. Is that an accurate statement? Do those constraints curtail what you are able to do against serious organised crime? Mr Jevtovic: The reality is, like all agencies, we work within the resources that we have, and I think your observation that organised crime and criminals are not limited by budgets and jurisdictions and that they will use all capabilities is correct. We know for a fact that they will hire specialists to develop capabilities and methodologies to perpetrate their crimes, so it can be frustrating fighting with one arm tied behind your back at times. Nonetheless, we work within the resources we have and we do the best that we can. CHAIR: Have you ever had experience—and I am not for a moment suggesting that this is a current thing— of people who have worked with you, either directly or as contractors, being offered five times the amount of money by unnamed groups to go and work for them? Has there been any evidence of that over the years? Mr Jevtovic: Not to my knowledge, no. But would it surprise me that talented people that developed skills in the law enforcement arena might be attractive to other organisations? I think it is obvious that they would be.

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CHAIR: Can you tell me about your involvement in the unexplained wealth collections? Mr Jevtovic: The ACC is supportive of unexplained wealth provisions. We see them as a critical tool in the fight against organised crime. We see any capability that is able to undermine the profit motive of criminals who acquire significant wealth, but who are equally sufficiently sophisticated and powerful to distance themselves from the actual commission of the offence, as a challenge. One of the ways which you can fight them on this front is by targeting the wealth that they acquire, and unexplained wealth provisions enable us to do that. CHAIR: Do you keep a register of any monies you have been able to collect from what have turned out to be criminals? Mr Jevtovic: Yes. Earlier in answer to Senator Singh's questions I read out some of our 2012-13 data, and it is also in the annual report. One point I would make is that the Commission itself does not seize; we enable other agencies to do that. CHAIR: Are the unexplained wealth collections a coordinated, national-level led activity? Or is it done by individual states? Mr Jevtovic: There are probably two elements to that question. One is whether we work cooperatively across the nation, and the answer is yes we do—probably in an unprecedented manner, would be my observation. The second component is that no less than six jurisdictions have unexplained wealth provisions, or equivalent, that are relevant to their jurisdiction—and whilst for those jurisdictions that is a good thing, it limits them to responding to unexplained wealth within the specific jurisdiction. I would suggest to you that organised crime is not bound by jurisdictions, and that, in fact, organised criminals that might be perpetrating the most serious of crimes in one state may well be accumulating their wealth in another. They are some of the challenges that we face in this space. CHAIR: That was always a difficulty with state boundaries, which in crime fighting seem to me to be quite crazy in a country as small numerically, if not geographically, as Australia. Is your agency able to cross borders and do things where states are restricted to only their state? Mr Jevtovic: The ACC act enables the Commission to work nationally—it is what it does—and the national intelligence holdings that we have are provided to all Australian law enforcement agencies. So our act does allow us to work across jurisdictions, and the determinations that are agreed to by the board of the Crime Commission allow us to enter into multiple national taskforces with a range of states and territories—sometimes all states and territories—and when we work in that environment it allows us to share our intelligence holdings with them. CHAIR: Perhaps this is not a question for this particular estimates committee—and you can tell me if it is not—but are there things that you think could be implemented at a national level that would give you a greater role in attacking unexplained wealth across the nation, unconstrained by various state jurisdictions? Mr Wilkins: It is a question for this committee. It has exercised this committee in the past, and undoubtedly a reference of powers by the states to enable Commonwealth law to apply uniformly across Australia in respect of all offences—both state and Commonwealth offences—and a facility which state police, Commonwealth police or other law enforcement agencies around the country could utilise, irrespective of which jurisdiction they are in, would be a terrific advance. It is something that I think has bipartisan support in this parliament, more or less, and it is just a question of getting some of the state governments across the line. Senator LUDWIG: How long have you been working on the model criminal code? Mr Wilkins: It is not a model criminal code. This is actually a very modest suggestion. It is a very minor amendment to the Commonwealth legislation on unexplained wealth so that it covers not only Commonwealth offences, but also state offences. To do that, we need the states to play ball and make a reference of powers to the Commonwealth—but only a very narrow, text-based reference to enable us to pass laws in respect of state offences. CHAIR: The matter Senator Ludwig raises is a far more complex and difficult thing that I would not go near, but I was inquiring in relation to the unexplained wealth collection and I think you have indicated that, from your point of view, coordination is easy enough to do. From your point of view, Mr Jevtovic, it would make your activities and actions in unexplained wealth collection easier and more fruitful, I expect. Mr Jevtovic: I think that would go without saying, yes. CHAIR: But what you are saying we need, Mr Wilkins, is referral from the states. Mr Wilkins: At least one, and then others could adopt that legislation—but technically, as a matter of constitutional law, we need quite a narrow reference from at least one of the states. CHAIR: Is that something that is on the radar or on the agenda of the standing committee of justice ministers?

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Mr Wilkins: It is certainly on their radar. They got excited at one point, when it was on their radar, but I think we are getting some signals from some of the states that they are now prepared to look at this type of reference of powers. I think the New South Wales government is beginning to indicate that this might be something they would entertain. So we are hopeful.

CHAIR: I will not spoil things by questioning further. Do not mention the uniform criminal code—that will send them running at a million miles an hour, I would guess. Mr Wilkins: No, it would not be a leavening influence.

CHAIR: That was fascinating. Thank you very much. Senator LUDWIG: Do you have any overseas placement of officers? Mr Jevtovic: No. Senator LUDWIG: Have you been requested to explore whether or not you can have overseas placement or exchange of officers in overseas jurisdictions?

Mr Jevtovic: That is part of the government's tackling-crime policy. I am aware of that. There have been no specific conversations concerning that at this point. Senator LUDWIG: Are there reasons why you do not have officers placed overseas—other than the usual budgetary constraints?

Mr Jevtovic: I think Australia has a very effective international police liaison network led by the AFP. I think it is probably one of the best models in the world. We are heavily reliant on that network. It provides a good service to us. But one of the things, from a commission perspective, we would like to explore in future is developing some of the relationships with some of our counterparts overseas to enable some closer bilateral cooperation. The AFP's network is facilitating that.

Senator LUDWIG: It is a reciprocal policy, as I understand it. That would mean officers would come to Australia. Would they operate within Australian jurisdictions? Mr Jevtovic: As I said, we have not begun to explore that. That would be something we would do very closely with the AFP and with the department in the fullness of time.

Senator LUDWIG: I might raise that with the department. Thank you very much. Mr Jevtovic: Chair, in relation to a question you posed earlier—I think it was your first observation concerning something which appears on our internet—I have just had the opportunity to read that use of the word 'unfortunately'. I think the way it has been expressed in that narrative is itself unfortunate. I think the word was used to refer to those who have commenced applying for positions in the commission—that we would have to suspend those. The word was not intended to be referring to government policy. CHAIR: Thank you for that clarification. As I said, nothing turned on it. I just opened my computer to refresh my memory about your terms of reference, so to speak, and that was the first thing I saw. It was just a bit unusual. Your explanation of the use of that word is a reasonable one which I accept. I thank officers of the Australian Crime Commission. Keep up the good work.

Australian Federal Police

[16:48] Senator RHIANNON: What will the Australian Federal Police involvement be in the operation of Sri Lankan officials using the two boats that Australia has just given to Sri Lanka? Mr Negus: Virtually none. We have, as you know from previous questioning, an officer based in Sri Lanka who is a liaison point, but we do not have any formal or informal relationship with the navy.

Senator RHIANNON: You said 'virtually none'. Could you expand on that, please. I understood that you advise Sri Lankan officials involved in potential people smuggling, so I am trying to understand how this will work.

Mr Negus: That is right. We have a relationship with the Sri Lankan police but we do not have a relationship with the Sri Lankan military. Senator RHIANNON: I understood from previous responses to questions, that you have been able to gain intelligence to stop people leaving Sri Lanka by boat. If that is the case, how will you be interacting—

Mr Negus: I said 'virtually none' because if there was information gathered by the navy that could be passed to the police, which would be passed to us, but we do not have a direct relationship with the navy, per se.

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Senator RHIANNON: Do I understand correctly: that you do not have a relationship with the Sri Lankan navy, but information you supply to Sri Lankan police could then go on to the navy who are using the two boats? Mr Negus: That is a supposition, I suppose. I might pass to Deputy Commissioner Phelan just to tell you in a bit more detail about the role of the liaison officer we have in Sri Lanka, but it is a very carefully controlled one, as we have said before.

Mr Phelan: The relationship that we have with the Sri Lankans is that all of our information exchange is through our liaison officer in Colombo, who works very closely with the anti-people smuggling teams within the police in Sri Lanka. Obviously, there are a number of ways disruptions can occur, onshore and offshore. If the local authorities determine that information needs to be passed, for offshore interdiction, to their navy, then I think it would be a natural consequence of their actions that that information would be passed.

Senator RHIANNON: Thank you. Do you have an officer in Sri Lanka called Mr Pong, or a name like that? Mr Phelan: Not that I know of; no. Senator RHIANNON: I will come back to that question. I understand that tomorrow, a 22-year-old Tamil who is currently held in a Brisbane detention centre will be flown back to Sri Lanka, and that a 19-year-old Tamil man was sent back last week, and that he has already been beaten when he was put in prison in Sri Lanka. Could you share with us whether you follow up on any cases of abuse of people who are returned from Australia to Sri Lanka? Mr Negus: That is not a role for the AFP. Certainly in the course of our duties, if we would come across allegations of that sort, we would pass those to the Department of Foreign Affairs and Trade and to the appropriate agencies—the Department of Immigration or others. We do not have a monitoring role in country; we have purely a liaison role. We do not have any police powers in Sri Lanka. We pass intelligence from one agency to the other and that, really, is the extent of it. Senator RHIANNON: Thank you. Senator BOYCE: Could you perhaps tell us what you think the reaction might be if you were to start making inquiries, as a police force in another country, about how people were being treated? Mr Negus: We do not have any powers to do that. Certainly, you can imagine, if police agencies from other countries came to Australia and started conducting their own inquiries here, how the community, the government and ourselves as police agencies might respond. It just would not be tolerated. Senator RHIANNON: Have you been given any briefs about cases of abuse or torture by Sri Lankan government officials? Has that been supplied to you in any way from non-government groups? Have you been given any information? Mr Phelan: Senator, in the past I think we have answered some questions on notice to you that some matters have been referred to the AFP in relation to potential war crimes et cetera and mistreatments. So, yes. Senator RHIANNON: Thank you. I would like to go to the case of Lieutenant Commander Sanjeewa Annatugoda. Has the AFP had contact with this Lieutenant Commander and, if so, when was the last time that you had contact with him? Mr Phelan: I think you are referring to the gentleman who was in the press in the last week or so? Senator RHIANNON: Yes. Mr Phelan: The AFP has had no contact with that person at all. Senator RHIANNON: The Sydney Morning Herald described Christopher Wood, who was involved in this case, as being an adviser to the AFP. Is that correct? Mr Phelan: Christopher Wood is our liaison officer. Mr Negus: He is an AFP member, a police officer based in Sri Lanka. He is an adviser to the Sri Lankan police force on those issues, in its broadest sense. But, as I said, it is a liaison role, where he would liaise with them and pass intelligence back and forwards. Senator RHIANNON: I would just like to clear this up. Maybe I have misunderstood. I thought that you just said that no AFP officer, or anybody employed by you, has had any relationship with the lieutenant commander. Did I understand that correctly? Mr Phelan: Yes. That is my advice, Senator. Senator RHIANNON: With regard to Christopher Wood, could you just say what his position is with the AFP please?

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Mr Phelan: He is the senior liaison officer in Colombo. Senator RHIANNON: Right. Are you saying that he did not meet with the lieutenant commander but that he was able to collect information that exposed this people smuggling incident? Is that what happened? Mr Phelan: No, I did not say anything about the latter. But, on the first point, my advice is that we have had no contact with that person whatsoever.

Senator RHIANNON: Okay. So can you explain how Christopher Wood undertook his work, which has led to this exposure, this investigation, of Mr Annatugoda? And I understand that he was interrogated in custody by him.

CHAIR: Are you aware of this Sydney Morning Herald article that the senator is referring to? Mr Phelan: Only broadly, Mr Chair. I have not read the article. CHAIR: I was just going to say, do you agree or disagree with it? That might be the starting point. It sounds to me like you disagree with it, but you have not seen it. Mr Phelan: That is right. Senator RHIANNON: Mr Chair— CHAIR: I am just trying to be helpful. Senator RHIANNON: can we just let them answer the questions? CHAIR: Okay. Senator RHIANNON: I am trying to ascertain—because the article does say that the adviser to the AFP, which I think that you have established is the case, Christopher Wood, was involved in the investigation of Annatugoda and has interrogated him in custody. CHAIR: Senator, could we get a copy of that article and give it to the officers? That might speed things up and help you get a better answer. Senator RHIANNON: I think they are aware of it, so I am happy to continue with the questions. While we are speaking I am sure an article will arrive and we can go into it in more detail. Could you just spell that out, please? Mr Phelan: Certainly, Senator. For a start, not everything in the newspaper is truthful. Senator RHIANNON: No, that is why I am asking the questions. Mr Phelan: I will go back to what I said before. My advice is that our officer has had no contact with that person at all. Senator RHIANNON: So that statement, that Christopher Wood was involved in the investigation and has interrogated him, is incorrect? Mr Phelan: You used the word 'and' in there. I said he has not interrogated him, he has not spoken to him at all, we have had no contact with him. As to what involvement we may have had in relation to passing information and working with the Sri Lankan police authorities, I would have to take that on notice. Senator RHIANNON: I will separate it. I was giving you the full quote. So we will separate that out so we can clarify. So Christopher Wood investigated Annatugoda but, you are saying, he did not interrogate him? Mr Phelan: No. I did not even affirm to the first part. I need to take that on advice, Senator. In terms of the second part, I think for now the fifth time, my advice is we have had no contact with that person at all. Senator RHIANNON: So we have got to spell it out. No AFP person has actually met him directly or asked him questions? Mr Phelan: That is what I said, yes. Senator RHIANNON: Okay. Therefore, can we go back to the investigation. Can you share any information with us at all about the investigation that is being undertaken by the AFP of Annatugoda? Mr Phelan: No, I would have to take that on notice, but we do not do investigations in Sri Lanka. We pass information to Sri Lankan police as a normal course of action, but in relation to this particular matter I would have to take it on notice to absolutely accurately inform you what our involvement was, if any at all. Senator RHIANNON: So you are leaving it open that there could have been an investigation? Mr Phelan: I think I have said that a couple of times— Senator RHIANNON: It is just that we have to pin it down. That is all we are trying to do here.

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Mr Phelan: Certainly I will reiterate again: there was no investigation by the AFP. We do not investigate offshore. Senator RHIANNON: I thought you said you were taking it on notice, but you are now saying that neither Christopher Wood nor any other AFP person investigated Annatugoda?

Mr Phelan: What I think I said—and I will read this back if necessary—is that I would take on notice and find out exactly what involvement we did have, if any, in relation to the investigation that occurred in Sri Lanka. I am not saying we investigated at all, but I am referring to what involvement we may have had, whether it was post the fact or even before the fact.

Senator RHIANNON: Can before the fact include any police work which led to the arrest of Mr Annatugoda? Mr Phelan: Yes, certainly.

Senator RHIANNON: Have you worked with any other Australian government departments on this issue? Mr Phelan: I would have to take that on notice as well, within exactly the same bounds as we did before. Senator RHIANNON: Considering this is an issue that has been in the news considerably, wouldn't you have come here with a great deal of detail to share with the committee about what actually happened? It just seems surprising you have to take so much notice when it is a very big issue and you are before estimates this week. Mr Phelan: Some of the questions you asked are very narrow and I want to be very careful that I do not mislead the Senate in terms of my answers. I have come to this forum for many, many years now and I try and impart as much information as I possibly can to the Senate. Certainly, as I said before, we have had no direct contact with this person, but as to what involvement we did have, if any, in relation to the circumstances that led to his charging or detention, whatever form that took, I would much rather we be accurate with the information rather than guess. Mr Negus: Can I add something there. I have the article before me. The sentence starts by saying, 'Mr Christopher Wood, an adviser to the AFP.' That is an inaccurate statement and is clearly incorrect. In what follows from there, it says he was involved in the investigation and interrogated the person whilst in custody. Considering the fact that they did not know he was a member of the AFP—they have referred to him as an adviser—it would be highly irregular and highly unusual for an AFP officer in another country to be involved in any form of interview, let alone interrogation, of a suspect on any offence. That is why I think Mr Phelan is absolutely right: the questions you are asking presume a level of involvement which I think would be highly unusual, and we have not been briefed about anything like this as to the AFP's involvement offshore. I would be very, very surprised—and we will correct the record if it is not the case—if his involvement went any further than just being an information conduit between the Sri Lankan police and the Australian police. Senator RHIANNON: Thank you for that information. Are you saying at this point that you are not actually sure of Mr Wood's position within the AFP or relationship with the AFP? Mr Negus: No, I know what his position in the AFP is: he is a sworn police officer who is a senior liaison officer in Colombo, Sri Lanka and has been from a number of years. The article states that he was an adviser to the Australian Federal Police; he is not. He is a sworn AFP officer and has been the liaison point there for a couple of years. And that is the first inaccuracy. As I said, it would be highly unusual for him to be involved in any interrogation or interview offshore. So I suspect the rest of that article is also inaccurate, but we will double-check that because we do not have any advice to suggest the negative, but what you are proposing is a fairly strong positive. Senator RHIANNON: Thank you. So we are clear about what we are putting on notice, please take it on notice to identify the inaccuracies in that article on 15 November in the Sydney Morning Herald by Ben Doherty? CHAIR: It might be easier to identify the accuracies. Senator RHIANNON: Maybe the AFP would like to take the question on notice as well. Mr Negus, what mechanisms does the AFP have in place to ensure that they are not inadvertently supporting Sri Lankan officials that may be engaged in people smuggling? Mr Negus: When our officers are offshore they are very clear on where their obligations start and finish. As I said, they have no sworn powers, they are not to be involved in any investigation in country, and they work in the consulate or the embassy, as it may be, with DFAT. They report back to us on their actions on a weekly or monthly basis, or on a needs basis. They are not involved in any activities which would not be supported by the AFP.

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Senator RHIANNON: Do you have any special measures in place for Sri Lanka that you would not have in place for a country where there are no people regularly leaving to seek asylum? Are there no special measures to ensure things do not happen improperly?

Mr Negus: The standards we apply are across the board and they are set very high. These people undergo a significant amount of training before they are deployed. They understand that they represent this country in the actions that they undertake offshore and that they are ambassadors in that way for this nation and for the organisation. So they are restricted in what they can do and they understand clearly what they can do.

Senator RHIANNON: Has AFP given DFAT a briefing about Mr Annatugoda since the arrest? Mr Negus: No, we have not. Senator RHIANNON: Thank you. There was a freedom of information document that came out and was cleared in September 2012. It is headed 'Attorney-General's meeting with his Excellency Admiral Samarasinghe'. In the second page, where it has item and key issues, it states: The AFP enjoys continued support and cooperation from key operational level contacts in SLPS including Criminal Intelligence Division (CID) elements…

Could you outline what kinds of opportunities would lead to joint operations? Mr Negus: I am sorry, senator, you would have to read that out again. It was a long paragraph that I lost the train of halfway through. Senator RHIANNON: It states: The AFP enjoys continued support and cooperation from key operational level contacts in SLPS including Criminal Intelligence Division (CID) elements…

My question was: what kind of opportunities would lead to joint operations? Mr Negus: It could be the exchange of intelligence which could lead to the interdiction of people smugglers, whether they be in Sri Lanka, in Australia or anywhere in between. Senator RHIANNON: The SLPS might share information with you and you might share information with them. It goes both ways.

Mr Negus: That is right. It could occur under appropriate protocols, yes. Senator RHIANNON: Can you share some details with us of joint operations that have happened in the past that you would be able to disclose? Mr Negus: We do not have anything in front of us. I am just seeing whether one of the deputies might recall an example of this in dealing with the Sri Lankan authorities.

Senator RHIANNON: I was just trying to understand how it would work and if it was done with any Sri Lankan government departments other than the SLPS. Mr Negus: No. As I said at the very start, and I think I have said it three times now, we do not have relationships with government departments in Sri Lanka other than the police. We work through very strict protocols in regard to how we exchange intelligence in what we do. Joint operations is probably an overstatement in the context of exchanging intelligence and working with them to try and disrupt people-smuggling operations, whether they be in Sri Lanka, on the water or anywhere in between here and there.

Senator RHIANNON: You have just said that joint operations might be an overstatement. That was in a briefing for the Attorney-General. It says it was cleared in September 2012—the date has been taken out. Are you saying that is actually inaccurate or is it an over emphasis?

Mr Negus: We do joint operations with a range of countries around the world where we have partnership arrangements and we have people collocated together and we are investigating particular issues in a true joint operational stance. But it is my understanding that what takes place in the Sri Lankan environment is very much an intelligence exchange, and we might work with them on elements of that. But I do not recall—and the deputies can correct me if I am wrong—us having Sri Lankan officers working in this country or vice versa, only the fact that we have done that.

Senator RHIANNON: My question was referring to Sri Lanka. Because it says joint operations, and I was assuming that was in Sri Lanka, could you take it on notice and supply any examples of those operations? Mr Negus: I will take that on notice. I have just spoken to Deputy Commissioner Colvin, who has been in charge of this area for the last three years, and he cannot recall something that would be characterised in the way I think you are perceiving it. But we will take it on notice and come back to you.

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Senator RHIANNON: When I hear those words it always reminds me it sounds like it needs to be taken on notice. Mr Negus: I am happy to take it on notice. But, as I said, just to give you an indication, and perhaps to temper your expectations, we cannot recall that from the last three years.

Senator RHIANNON: What was the total AFP budget for the Sri Lankan operations in the last two financial years and in the one coming? Mr Phelan: The total budget for 2013-14 is $350,000. The budget for the previous year, 2012-13, was $540,000. I do not have the year before that, but I am happy to take it on notice.

Senator RHIANNON: And that is the total AFP budget for your Sri Lankan operations? Mr Phelan: That is our operational budget, and then of course you have got the salary of our person who is there, the costs of accommodation and all those sorts of things—in-country allowances et cetera. I am happy to take that on notice to get you an exact figure for those three years. Senator RHIANNON: Okay. If you can give me the total figure for that, that would be good. Within that, can you give me a breakdown of the expenditures by program that you are doing in that country? Mr Phelan: It would pretty much be one program, but we will do the best we can for you. Mr Negus: I have asked somebody to ring our officer in Sri Lanka, Mr Woods, who, just for the record, is an AFP member. He has had no involvement in or contact with the investigation that was alleged in that article. That is directly from Federal Agent Chris Woods, working in Sri Lanka. So I can clarify that. CHAIR: Thank you very much, Mr Negus, for your prompt attention to that particular detail. Senator Singh. Senator SINGH: Mr Negus, can you name the countries where the AFP is currently deployed. Mr Negus: We have people located in 28 countries around the world as liaison officers and a further 10 doing capacity-building or peacekeeping missions. We could probably provide you with that list. Senator SINGH: Yes, that would be fine. How many programs does the AFP run in partnership with the Indonesian police or government? Mr Negus: A substantial amount. We have around 30 people working in Indonesia at the moment. That varies day by day, but it is around 30 people. That covers the full gamut—from people smuggling, which has 10 full-time people attached to it, through to counterterrorism and transnational crime issues. We also have a liaison officer down in Bali and a couple of people posted at the Jakarta centre for enforcement operations, which is a training facility in Semarang. It is quite a wide range of roles and responsibilities. As I said, we could provide you a list on notice—that would be easier than trying to step our way through it—but it is a substantial program. Senator SINGH: How does that compare to other countries? Is 30 quite a lot? Mr Negus: It is the largest secondment from a liaison officer perspective. We have over 100 in the Solomon Islands, for instance; but in a liaison officer sense, it is the largest by far. I think the next largest would be about five or six. Senator SINGH: What is the total cost of that operation in Indonesia? It would potentially be the largest cost as well? Mr Negus: It certainly would—the largest offshore cost—not counting those peacekeeping and capacity-building measures that I mentioned before, such as RAMSI in the Solomon Islands. Senator SINGH: Do you have that figure? Mr Negus: We do not have the Indonesian cost with us; it goes across a range of different programs that we would have to aggregate back into one. Senator SINGH: Can you take that on notice. Mr Negus: Yes. Senator SINGH: How many Indonesian officers has the AFP trained in the last 12 months? Mr Negus: Again, it is a difficult question to answer precisely. The Jakarta centre for law enforcement has trained about 14,000 officers from the region from about 49 different countries. Many of those are Indonesian, but many are from other countries as well. The 10 officers who work on people smuggling, for instance, work with these people on a day-to-day basis. They provide on-the-job training, expertise and advice. We have also got formal training courses around cybercrime and a range of other things. As I said, it would be quite a bit of work to pull that all together, but we have those figures on the number of people we have trained, in AFP programs at least, in that context in the last 12 months. But it extends far beyond the normal classroom training environment.

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We have officers seconded into the cybercrime centre, for instance, and it is a day-to-day mentoring relationship with them to help them understand the work in those environments. It is not classroom based specifically, but there are other programs where we will train in a classroom environment. Senator SINGH: Maybe you could provide the committee with a summary of those programs—a quantum.

Mr Negus: Yes, absolutely. We will do our best to pull that together into something meaningful for you, and the cost attached to it. Senator SINGH: This is a similar question that I asked the ACC. It is in relation to the government's newly announced Australian Gang Intelligence Centre, which seems to be transitioning from the previous government's centre. The AFP were administering that centre. Is that correct?

Mr Negus: That is correct. Senator SINGH: Does that mean that the AFP no longer have anything to do with the Australian Gang Intelligence Centre? Mr Negus: When the government changed, there was some analysis of how the gang's task force, or the gang's squad, as it is now known, would be implemented. It was agreed amongst the agencies and the Attorney-General's Department, Customs, the ACC and the AFP that a proposal would go to the minister to consider whether it would be better placed within the ACC. All the agencies agreed with that, and the minister then approved that transition. It has been done quite willingly by us. We have been quite happy to do that.

One or more of our officers will be in that centre. The Australian Crime Commission does have a national reference on gangs and bikies as well. It just made more sense to us as a group to transition that into the ACC and have them responsible for the whole, rather than elements, of the intelligence picture and having one of them seconded to us. It is a small change. In many ways it is a matter of having one of them seconded to us and having it with us, or vice versa. We thought it would be better for the ACC to have the responsibility and the accountability of coordinating all of the intelligence in one place.

Senator SINGH: It is a small change, but it is $64 million. Mr Negus: That $64 million is for the whole program. The gangs intelligence centre is just one part of that. I think it is a $2 million or $3 million transfer from the AFP back to the ACC, and that will be facilitated through the normal processes of additional estimates. CHAIR: Commissioner, regarding the programs in Indonesia that you are going to get on notice for Senator Singh, can you indicate, perhaps in brackets, when those programs commenced? Mr Negus: Yes. Many of them are longstanding and they have been renewed. They have had four-year funding and have again been renewed or given additional funds. We will try to give an account of when the programs started. CHAIR: How big is your footprint in PNG? Mr Negus: As of last week it is about 33 people. I went up there with Deputy Commissioner Drennan to launch the first tranche of people going in as advisers. There were 30 of them. But we do have liaison officers there already. Sorry, I will just recalculate those numbers. We have 17 officers who have been there for a couple of years providing senior-level advice re support to the Papua New Guinea senior officers—assistant commissioner, deputy commissioner; those sorts of levels.. We have one liaison officer in Port Moresby and an additional 30 have gone in. That is a total of 48 who would be down there in that regard. Another 20 are expected to go into both Port Moresby and Lae by Christmas and, again, they will provide advisory support to the Papua New Guinea police on the street about how they perform their roles and what duties they undertake. CHAIR: That is excellent. Well done. I raise it only because I thought you said—I might not have got this correct—that apart from Indonesia the next biggest influence was about five officers. Mr Negus: It is a different role. What I tried to differentiate at the start were liaison roles versus peacekeeping or capacity-building roles. As I said, we have over 100 officers in the Solomon Islands, in RAMSI, for instance. CHAIR: Yes, I am aware of RAMSI. Mr Negus: We have around 40-odd in Timor-Leste and we will now have over 50, or probably closer to 70, in Papua New Guinea by the end of the year. Those roles aside, the biggest liaison roles we have are within Indonesia. Senator SESELJA: Before I get to a couple of questions on numbers, you put out press release on 15 November in relation to a number of arrests of members of a child exploitation ring. Firstly, congratulations in relation to that. Secondly, how many officers were involved in those investigations?

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Mr Colvin: Unfortunately, I do not have a figure for the total number of officers involved. We have just over fifty officers regularly engaged in child protection operations and investigations. For a matter like this that actually goes to resolution and we execute search warrants and make arrests, we draw officers in from a number of locations. Keep in mind that this investigation also involved state and territory resources over a very protracted period of time. I cannot give you one final figure for the number of officers involved in the resolution of that.

Senator SESELJA: Without giving anything confidential away, is there the potential for more arrests in relation to this investigation? Mr Colvin: With any of these matters, there is always a lot of material that we follow up after a search warrant. It is always a delicate balancing act in making the investigation public and getting the message out there into the community about these matters—and that is a very important part of what we do. We need to balance that against the fact that there are always follow-up investigations. As our officers said on Friday at the press conference, investigations are continuing that may well lead to further arrests.

Senator SESELJA: On that point, we are talking about children being rescued from exploitative practices in some cases. Where the AFP conducts an investigation likes this and in some instances the matters are not sufficient for criminal prosecution—a criminal standard of proof—what ability is there for the AFP to inform child protection authorities of concerns and suspicions?

Mr Colvin: If we ever have concerns about the welfare of a child and the concerns are of a nature such that we cannot take direct action then we can inform local support services and community services, and that is what we would do.

Senator SESELJA: Thank you. If the next matter needs to be taken on notice, that is fine. But it is relatively straightforward and the answer might be able to be brought back tonight. My question is in relation to the AFP's total appropriation. I just want to get a handle on the size of the current appropriation versus what it was back in 2011. I am interested to see how it has progressed since then.

Mr A. Wood: I do not have the PBSs themselves, but I have been handed a summary from previous years. The 2010-11 portfolio budget statement had a total appropriation for departmental and administered funds of $1.394 billion. For financial year 2013-14, for like with like, apples and apples, the appropriation is $1.371 billion.

Senator SESELJA: So it is down by $20-odd million. Could you advise me what the total staffing level was in 2011 versus what it is now. Mr A. Wood: In July 2011, the total staffing numbers for the AFP was 6,898. As at the last pay day in October—24 October—it was 6,930.

Senator SESELJA: What about sworn officers in 2010-11 versus now? Mr A. Wood: In July 2011, the number of sworn police officers was 3,217. For that most recent pay day in October, it was 3,568. I have not included sworn Protective Service officers. Senator SESELJA: Thank you very much.

Senator LUDWIG: This question arose during discussion with the Director of Public Prosecutions. I asked about the proceeds of crime caseload and they indicated that they had passed all the cases to the AFP. I am assume that that is accurate and go from there. That is the background. How many cases do you currently have that you got from the DPP? These are pending prosecutions, I assume.

Mr Negus: That is right. You are aware that a couple of years ago the responsibility transferred from the DPP to the AFP. The vast majority of cases were transferred across to our taskforce. That taskforce is made up of Australian Federal Police, Australian taxation officers and Australian Crime Commission officers. That has been a very successful taskforce in recouping assets. I was listening to the talk about unexplained before and I support all the commentary around improving those laws. I heard Mr Wilkins's comments as well and I would fully support them. In fact, in this chamber we have been on the record for a number of years now in support of the strengthening of that environment.

Mr Colvin: What I can advise the committee is that 55 cases were initially referred from the Commonwealth Director of Public Prosecutions. Some of those cases have been finalised and some would still be ongoing. As of 1 July to 31 September 2013—a recent quarter—132 proceeds of crime matters were being conducted by the AFP by our in-house lawyers.

Senator LUDWIG: Thanks very much. On notice, could you tell me the number of cases plus the length of time that they have been with you since the DPP gave you and how long the DPP had them. Some of them would go back many years earlier. The DPP explained that some of them may have been held up because of pending

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criminal prosecutions. I am happy for you to note those and for you to note the ones for which you are waiting for some other piece of information to arrive before you can finalise them. It seems to me that there are a few that go back quite a few years. There is one in particular, so it depends on how much you can talk about a particular individual case. I am not inviting you to if you cannot or if it is an operational matter. But I am more interested in the administration rather than the actual case. The only press release that you ever issued in respect of a matter was in 2006. It said that you seized planes, trains and automobiles—it had some such heading. It would have been referred to the DPP and now it seems to have come back to you. That dates back to 2006 at least, administratively, where is that matter up to?

Mr Colvin: We will have to take some of that on notice. It is fair to say that some matters are quite lengthy. A matter from 2006 would probably not be the oldest matter that we are still dealing with. The matter that you are referring to, if my memory serves me correctly, is actually before the Supreme Court in Queensland at the moment, so I would be loath to make too much comment on that. But we can bring back to a list of the cases that were referred to us and where they are at and to the best extent possible those 132 matters, which would be varying each and every day.

Senator LUDWIG: In relation to the matters where property has been seized, what happens to that? We can use the one on the public record, which is the Hart matter. Is it stored? Who pays for the storage? How is it maintained until such time as it is resolved? It is property that someone still claims to own. You have seized it, but the matter has not been resolved. How is that managed?

Mr Colvin: It depends on the status of the property. If the property is part of the prosecution—evidence in the prosecution—then it may be kept as evidence until such time as it is no longer required as evidence. Then it is dealt with, most likely by the insolvency services, ITSA. They have been renamed.

Senator LUDWIG: They have changed their name now, but I understand who you mean. Mr Colvin: The insolvency services look after property on our behalf and deal with that property. Senator LUDWIG: Are they currently looking after the property in the Mr Hart matter? Mr Colvin: I believe so. If that is not correct, I will correct the record. But that would be the normal practice and I do not see why that would not be the case here.

Senator LUDWIG: You do not have any day-to-day management of the property? Mr Colvin: No. Senator LUDWIG: I will not trouble you any more with that. I should direct my questions to the authority and ask them about the matters that they currently manage and how they manage them. Another question arises from that: if there is a cost in managing the property, do they ask you for that money? Where is that drawn from? Mr Colvin: That is generally a part of the court process. There could be orders in relation to the management of the property. But if the property has been forfeited then it is a matter for the insolvency services to start the process of— Senator LUDWIG: This is before that. I am sorry to interrupt you. These are for property when the case is still on foot—in other words, the cases that we have been talking about; the hundred or so that have not been resolved or finalised. The property has not be forfeited. For argument's sake, in the case that you mentioned—the case that I mentioned—from 2006 there are aeroplanes and other chattels. They have to be maintained in some way and stored somewhere and that has to be paid for. Who foots that bill? Mr Colvin: I believe that the insolvency services foot that bill. That is not a bill that comes to the AFP. Senator LUDWIG: Lucky for you. Just to be clear, once you have lawfully seized it, you transfer it to the authority for them to manage until you eventually give them an order, a court order, for forfeiture or return. Mr Colvin: That is correct. If there are costs in maintaining the property, whatever that property might be, that could be taken into consideration by the court in determining the final forfeiture. How those costs should be— Senator LUDWIG: I will save my questions for the authority, then. Thanks very much. Mr A. Wood: I would like to clarify an answer that I gave to Senator Seselja. I mentioned that the numbers that I quoted were the total departmental and administered appropriations. The numbers I gave also included section 31 revenues where we earned money for, say, doing ACT policing or some of our protection services. Just to be clear, the figures included that revenue as well. Senator LUDLAM: Welcome back, Commissioner. Has the AFP been consulted on the negotiations to the trans-Pacific partnership agreement?

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Mr Negus: Not that I am aware of, but I will double check with my deputies here to see if there is anything in train. Senator LUDLAM: It probably sounds a bit out of left field.

Mr Negus: No. There is no visibility from this end. Senator LUDLAM: Not yet. But I suspect that you will have. My follow up is whether you have provided advice to government on the increased resources that will be needed given that the IP chapter, which was posted on the Wikileaks website a couple of nights ago, proposes criminal offences and statutory damage penalties to be set at a deterrent rather than a compensatory level for IP offences. What that means in plain English is a lot more work for you guys in enforcing the obligations that we may be about to be signed up to. Mr Negus: We have not been asked. That would probably be a matter for the department in the first instance anyway. They would consult with us after receiving that request. Senator LUDLAM: The Department of Foreign Affairs? Mr Negus: No, the Attorney-General's Department. Senator LUDLAM: Mr Wilkins, I have just asked the commissioner about the trans-Pacific partnership agreement. I am not surprised to hear you say that you do not have any visibility of it. But it proposes a whole set of criminal offences and penalties that will require enforcement by somebody, presumably the AFP. Are you in contact with DFAT about the process of signing Australia up to that agreement? Mr Wilkins: We are having some discussions with DFAT. I am not sure of the details. Senator LUDLAM: Could you characterise those discussions for us? They would appear to me to have direct operational consequences for the AFP. Mr Wilkins: I am not with you, I am afraid. Senator LUDLAM: The draft IP chapter of the trans-Pacific partnership free trade agreement was leaked a couple of nights ago. It proposes a whole range of new criminal offences and statutory damage penalties. Mr Wilkins: It was leaked where? Senator LUDLAM: On the Wikileaks website. Mr Wilkins: Okay. I will need to get a hold of this to understand whether it is accurate. Is it accurate? Senator LUDLAM: That is fair enough. But I believe that it is accurate. I have certainly not seen any commentary to the contrary, but I will leave you to make your own judgment. It is consistent with what analysts thought would be in the agreement. But even if some of the specifics are inaccurate, this chapter does appear to propose substantial criminal penalties and new sets of offences that do not presently exist that someone will have to enforce. Mr Wilkins: But we are negotiating—negotiating positions with which this treaty, if it is negotiated in a form which the government is happy with, will come to the Senate. So I am not sure what the question is actually. Senator LUDLAM: It will go to the treaties committee. The parliament will not have any visibility. It will be signed in the blind, and we will just have to cop it. Mr Wilkins: We do not necessarily subscribe to the draft of the treaty. It depends. We are negotiating. Senator LUDLAM: Fortunately for civil society groups, the draft shows what the different countries' negotiating positions are, so we do appear to be signing up. CHAIR: What is your question? Senator LUDLAM: My question—and it may have already been answered—is: has anybody thought to ask the Federal Police, who will be in a position of having to enforce these new penalties for things like file sharing, of the increased resources that are going to be necessary to do that? When somebody introduces a whole new class of penalties and things that need to be investigated and enforced, somebody has to do that work. Mr Negus: The answer is no, nobody has spoken to the AFP. But, given it is a draft document, I am not surprised by that at all if it is an accurate document. Mr Wilkins: I think everyone seems to be getting way ahead of themselves here. What you have explained to me about the Australian negotiating position is new, so that is interesting. I have not seen anything on Wikileaks. I am not sure what Australia's position is said to be by whoever it is who leaked this thing or whether it is accurate. Senator LUDLAM: That is why I am trying to be helpful.

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CHAIR: I think the question was: have they asked the Federal Police? The Federal Police have said no, nobody has asked them, so that has answered that question. Senator LUDLAM: It has. Very efficient use of the committee's time. Do the Federal Police use Microsoft software for your back office and regular operational stuff?

Mr Wood: Yes, Microsoft Office is our standard operating system for the office environment. Senator LUDLAM: Same here. Are you confident of your network-level security given confirmed reports that Microsoft has a legal obligation to provide a back door to all of its products to the US NSA? Mr Wood: Without agreeing to the premise of the question, I am confident that the way that we work with other partners that use Microsoft as well in this town—other partners within the intelligence base, for example— and the level of cooperation between ourselves and other Commonwealth agencies to ensure that we have best-practice protection of our systems is in place. I am confident of that.

Senator LUDLAM: All right. I have had this conversation a bit in another committee this morning. Mr Wood: I did observe that. Senator LUDLAM: You did? I thought you would be busy in here. My question is whether you specifically patch against that PRISM back door that is delivering all of your and my data to the US NSA's servers. Have you specifically protected against that? Mr Wood: I am not prepared to answer that. Senator LUDLAM: Why is that? Mr Wood: I do not think it is appropriate to reveal the specific measures we take in terms of cyberprotection of the AFP's systems. What I will say is that I am confident that we are aware of risks from both our own experience and our communicating with other agencies, including agencies that have specialisation in this area and that that is an ongoing, dynamic process of ensuring best protection. It is not just a point in time. Senator LUDLAM: You are aware of the potential vulnerabilities. Have you done anything to mitigate them? Mr Wood: Yes. Senator LUDLAM: You have? Okay. Mr Wood: As a general comment, are we aware of potential vulnerabilities? Yes. Do we take steps to mitigate those vulnerabilities? Yes. Senator LUDLAM: Okay. So it may be that the AFP has afforded itself a higher-level protection of your offices and the various people who support you than this parliament has gone to the trouble of doing. Mr Wood: A range of our systems are rated, I suspect, at a higher level than the systems that are operated within this building for the use of parliamentarians. We do have secret systems, top secret systems et cetera. They would certainly have different protections from a system that, say, is merely restricted to members of parliament. CHAIR: I would hope so. Senator LUDLAM: You would hope so. Mr Wood: That is the context of my answer. Senator LUDLAM: That is fine; that is understood. Does that include the person operating the front desk when I walk into one of your offices in one of our capital cities? Mr Wood: Some of our front desks are operated by contract staff who do not have access to AFP's higher-level classified systems. Senator LUDLAM: Okay, thank you. However, they are probably still using Microsoft Word, Microsoft Outlook and these other products that have all been comprehensively backdoored by the NSA. Mr Wood: That we do not know, but they certainly would not have access through their systems. Their systems are not connected to our classified networks. Senator LUDLAM: That is not quite the question I am asking. Mr Wood: They are private contractors, and I do not know what the private contractors' systems are. Senator LUDLAM: Okay, but, if one of your private contractors emails one of your top secret, behind-the-firewall operatives, your private contractors' system is vulnerable as every build of Microsoft Office or Outlook ever produced has been vulnerable.

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Mr Wood: Yes. Anybody who emails in, whether they be a private contractor or some other member of the public, presents the same risk, and we therefore have the same methods for scanning for monitoring email traffic that arrives at the organisation.

Senator LUDLAM: Again—and not to belabour the point or be pedantic—it is not so much about malware infecting your internal network; it is about the fact that Microsoft has a legal obligation to provide the NSA with back doors into all its products. So you believe—and I think you have told us that you are confident—that that does not apply within secure levels of the AFP?

Mr Wood: I think I answered in a general sense, not specific to particular risks to the organisation. Senator LUDLAM: All right. I will leave it there. Senator XENOPHON: We had a genteel discussion on 30 May 2013 about questions of whether any members of parliament have been the subject of authorisation orders, and it was in the context of sections 70, 79, 178 and 179. Sections 70 and 79 are the authorisation that is required in order to tap someone's phone or to intercept. That is what we are talking about. Do you recollect that conversation? Mr Negus: I am just checking whether we were talking about authorisations for metadata rather than tapping someone's phone. Non-content data is what we are talking about, so it is time and place of phone call and who it is to and from. Senator XENOPHON: But you do not need an authorisation for metadata, do you? Mr Negus: Internally, yes we do. Senator XENOPHON: Internally you do. When I asked you about whether members of parliament had been the subject of these authorisation and, I think in good faith, you said you did not recall any off the top of your head, and we were talking about five investigations of leaks in each of the last two years, I think we were actually talking about interception rather than authorisations more broadly. Mr Negus: From memory, when I answered the question I was talking about whether people's phone records had been accessed as part of that process—phone records as in whether calls were made between particular numbers or those sorts of things rather than a phone being intercepted. Senator XENOPHON: So we are talking about metadata or actual interception? Mr Negus: Sorry, I have not got the question on notice in front of me—because I know we have answered this on notice to you. I do not have Hansard of the previous. Senator XENOPHON: I might assist you by saying that at that stage you did not recall any about members of parliament being involved. The answer on notice said—and I will read the whole thing so it is not out of context—'For reasons of operational security, the AFP does not disclose specific operational information to ensure integrity of its investigations. However, the AFP can disclose there have been occasions where members of parliament have been the subject of authorisation orders.' Can you tell us without going into those investigations how many members of parliament have been the subject of authorisation orders? Mr Negus: I think the question on notice answers it the same way I would answer it today. Senator XENOPHON: Is it one, two, 10, 20? How many members of parliament have the subject of this? Mr Negus: They are operational details with regard to investigations. Senator XENOPHON: Knowing the numbers of members of parliament who have been subject to authorisation orders, as distinct from anything about those investigations—are you honestly saying that is an operational matter? Mr Negus: Yes I am. That is the reason the question was answered the way it was in the question on notice. Senator XENOPHON: So it could be 226 members of parliament subject to authorisation orders or one. It is between one and 226. Senator LUDWIG: Or zero. Senator XENOPHON: No, it is not zero. The answer says 'there have been occasions where members of parliament have been the subject of authorisation orders.' Therefore, it is not zero. Mr Negus: I have just been given a little bit of information which may assist you. I can tell you it is less than five. Senator XENOPHON: Five members of parliament have been subject to authorisation orders. Can you advise whether members of parliament have been subject to interception of their phones or email communications? In other words, apart from metadata, how many have been subject to it?

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Mr Negus: We do not have that, so I would have to take that on notice again. It was not part of the original questioning, I do not think. CHAIR: I would be very doubtful that you could answer anyhow.

Mr Negus: No, there are prescriptions under the Telecommunication Interception Act about releasing elements of that sort of data, so we would have to check from a legal perspective whether we could or could not. CHAIR: I just hope no-one had been tasked to listen to my phone calls; they'd die of boredom!

Senator XENOPHON: So you are saying that, if members of parliament were having their phone calls intercepted, you could not advise us whether that was actually occurring at all? Mr Negus: There are very tight—and quite appropriately tight—legal restrictions around communication of that material. It has to be authorised by a court or it has to be in the process of a criminal proceeding—those sorts of things. I cannot tell anyone about anything about whether a warrant is being listened to unless they are authorised from a warrant.

Senator XENOPHON: I am not suggesting that. But, in the sense that there are 226 members of parliament in this place, you cannot advise us—without disclosing who they may be but in terms of raw numbers—whether there have been any interceptions? We know there have been authorisation orders.

Mr Negus: The authorisations relate to the last question I answered, and that was less than five. I am prepared to take it on notice. We will get some legal advice about this, but I again do not want to set up expectation that you are going to get very much out of this at all.

Senator XENOPHON: But to what extent from an operational point of view will your operations be compromised by simply disclosing that one or more members of parliament have been the subject of interception? Mr Negus: If I tell you that one person may have been or is currently being then that one person may well be alerted to what is actually occurring in the context of committing a criminal offence. As you well know, there are significant thresholds and safety nets here. The AFP must apply to a judicial authority to get permission for a warrant. These are very high and very well protected thresholds. There has to be sufficient information that can convince a judge or member of the AAT that have sufficient grounds to issue what is a quite intrusive power. As I said, those thresholds are well understood and all contained in the telecommunications act.

Senator XENOPHON: Sure. I will make it clear so there is no misunderstanding: I am focusing my remarks in relation to sections 70 and 79 of the Crimes Act and relate to, effectively, what could be described as whistleblowers: members of the Public Service giving information to members of parliament. Under the act it is an unauthorised release of information. I am not talking about an MP or senator who might be involved in some other illegal activity.

Mr Negus: I am just checking because it has been a long time since I have been involved in the front line myself, but there is a threshold of an offence which must be reached—it is seven years penalty—which must apply before a telephone interception can even be applied for. So section 70 would not apply; I think it is two years. So you cannot go and get a telephone intercept for somebody who may have released information in the context of what they are doing.

Senator XENOPHON: But Mr Kessing was subject to interception, wasn't he? Mr Negus: I do not have the details of that case in front of me. It was seven or eight years ago. But that is news to me. It would seem very strange and, again, would not be allowed under the law if it were to be taken out for something like releasing information. Senator XENOPHON: So I guess I will wait patiently in relation to those. Mr Negus: We are happy to take it on notice. We are happy to look at the Mr Kessing aspect of this as well. As that matter is well and truly concluded in the courts, we should be able to tell you a little bit about that case. Senator XENOPHON: Can you tell us how many metadata searches have been undertaken by the Federal Police in the last 12 months? Are there some recent periods that you could specify? Mr Negus: The deputy commissioner would be able to answer that. Mr Colvin: In anticipation that you may ask that question, I have the figures in front of me for the most recent financial year 2012-13. There were 25,726 authorisations. An authorisation may relate to one or more requests for information, so those 25,726 authorisations related to 56,898 separate requests. These are call charge record requests or subscriber details—again, non-content. For the financial year 2011-12 there were 23,000 authorisation, which related to 43,362 requests. For the financial year 2010-11 there were 23,351 authorisations relating to 50, 841 requests. I am not sure how far you want me to go back.

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Senator XENOPHON: It has been about the same—slightly increased for the last financial year. Mr Colvin: Correct. Senator XENOPHON: In terms of actual interceptions, you are subject to scrutiny by the Commonwealth Ombudsman, as I understand it, which is quite different from, I think, the DSD for other agencies. But that is another matter. How many interceptions have there been in the last 12 months? Mr Colvin: I do not have the number of interceptions. What I can say is that as well as being scrutinised by the Ombudsman we also report to the parliament each and every year in an annual report on telecommunications related matters, including warrants for interception. We just have to dig that figure up out of that report. Senator XENOPHON: It is in the report, but the fact is that there is a level of scrutiny the AFP are subject to that other agencies are not. Mr Negus: There are very high thresholds, which we fully support, because we understand the intrusive nature of this. It is only used when it is absolutely necessary for a law enforcement purpose. Senator XENOPHON: And I am acknowledging that there is a level of scrutiny and safeguards in place that do not exist for other agencies. Mr Negus: Just coming back to the Mr Kessing question before, I am not sure whether we might be getting confused between interception and metadata checks, because there certainly would have been metadata checks in that regard, but whether there was a telephone interception I highly doubt. But we will check that on notice. But I think, as I said, I am not denying the fact there may well have been metadata checks in regard to that, because that happens in most leak investigations. CHAIR: Can you tell me what metadata is? Mr Negus: It is where we would have access, for example, to billing records—so, to know that a phone call had been made between you and somebody else at a particular point in time for a particular duration and, if it was a mobile phone, where that call may have been made from. It does not describe what the content was. It just describes that the phone call took place. Obviously in a leak investigation that is an important context between who has told what to whom. Senator RHIANNON: The AFP work with a range of police agencies in Sri Lanka. A range of organisations, including Human Rights Watch, Freedom from Torture and Medac, have documented hundreds of cases of rape, sexual abuse, torture and assaults in that country, and the International Commission of Jurists and two UN reports have warned of continuing incidents of torture, and that many of the documented cases of rape and torture involve members of the Sri Lankan security, both military and police. Considering the AFP works with a range of Sri Lankan police services agencies, including the Maritime Human Smuggling Investigation Unit, the Criminal Intelligence Division elements, the Anti-Human Smuggling Investigation Bureau and the airport CID team, what measures does the AFP take to ensure its officers are not working with Sri Lankan officers who have committed rape, torture and/or assaults. Mr Negus: I answered this, I think, in the opening series of questions, where we said we train our officers to a very high standard. They are aware to keep an eye out for any inappropriate behaviour. They are trained and live the values of the AFP. When they are offshore they recognise they have a responsibility under Australian standards to report any inappropriate behaviour to the appropriate authorities. Beyond that we do not send people overseas who would tolerate any of the sort of behaviours you have suggested. If they were to see something like that they would report it to the appropriate authorities. I mentioned as well that all of the agencies you have talked about are elements of the police force. That is where we constrain our connection and our activities under very tight circumstances about the exchange of intelligence. Again, we would not condone or tolerate any of that which you have suggested. If it came to our attention we would report it accordingly. Our officers are trained to a very high standard before they leave the country. Senator RHIANNON: You have said that if it comes to your attention you would report it and if they saw anything they would report it. But my question concerns the extensive reports that are now around from a whole range of well-respected agencies about the levels of rape, torture, assaults and beatings, to a great level of details, well documented and with medical evidence. I am not talking about reporting what your officers might see. I think we know the AFP are trained to high standards and one would expect that would happen. That is a given. What we are talking about here is how you ensure your officers are not working with people who have committed crimes against humanity. The Prime Minister of Britain was there talking about this very issue and that this issue

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has to be investigated and addressed now. My question is about how you handle your officers and who they are working with. Mr Negus: We trust the judgment of the officer on the ground. I know that Federal Agent Wood is a fine young officer. I know him personally. He is of the highest calibre and he would not tolerate anything that was seen. It is impossible to give you categorical assurances. We are in almost 40 countries around the world with probably 450 to 500 people working alongside police from many different nations around the world. Can I assure you that each one of those has not committed a criminal offence? No, I cannot. But we do our best to try to work with them to apply the standards you would expect in Australia and to make sure that human rights is central to what we actually do as any agency. In any training we deliver, and those sorts of things, it is central to what we do in a training sense. But I cannot give you categorical assurances as to the quality and calibre of officers from other countries around the world, because they are not my responsibility and they are not Federal Agent Wood's responsibility.

Senator RHIANNON: I was not asking about categorical assurances. I was asking what you do so that you can do your best to ensure that AFP officers, whom you obviously hold and train to very high standards, are not working with people who have committed these crimes. There is so much evidence out there, surely you must have some level of discussions, engagement and training and asking the Sri Lankan authorities who the people are you are working with? Isn't there something you are doing? That is all I am asking. What are you doing?

Mr Negus: I think I have said as much as I can say. I do not have anything further to convince you of the case, other than to say that we insist on high standards from our own police and if they see anything inappropriate they would report it accordingly. That is about all I can say.

Senator RHIANNON: What I take from that is that you do not actually have it built into your training programs or when you are doing your memoranda of understanding with the Sri Lankan police force you are not actually stipulating who the people you are working with are. That is not done.

Mr Negus: You listed them yourself. There are at least half a dozen agencies within the Sri Lankan police force that we have a relationship with. It is a very well controlled relationship, but it is not one where they are sitting in patrol cars with them driving around Sri Lanka. They are exchanging intelligence and representing this country, offshore, to try to stop the scourge of people smuggling. That is what they do, period.

Senator LUDWIG: You mentioned that you have approximately 30 overseas deployments. Are there reciprocal arrangements in place? Do we host similar police officers from overseas countries in our jurisdiction? Mr Negus: Yes, we do, but not reciprocal in every sense. For instance, the USA has a member of the FBI and one from the DEA, as well—I think a couple from those locations—here in the US embassy. The Indonesian embassy has a representative from Indonesia here, and they work under the same conditions that we would work under offshore. We have one of the larger networks around the world. It is in 18 countries. But not all of those have reciprocal arrangements here in Australia.

Senator LUDWIG: Do we have any from China? Mr Negus: No, but I know it is being considered. I think, in the context, they would certainly like to. We have three bases in China. We are in Beijing, Guangzhou and Hong Kong. We have an SES1 officer based in Beijing who leads that contingent. Senator LUDWIG: What about Malaysia? Mr Negus: I am told there is a Malaysian officer here, and we obviously have people based in the High Commission in Malaysia. Senator LUDWIG: And Lebanon? Mr Negus: We have people based in Beirut. There have been secondments of Lebanese police into New South Wales for specific crime types at state level, but at the moment we do not have a Lebanese police officer based here. Senator LUDWIG: You indicated you had one from Indonesia. Mr Negus: That is right. Senator LUDWIG: And they are based in their embassy on very similar terms as you would be deployed overseas. Mr Negus: That is exactly right, and we have a lot of interaction with that person. Senator LUDWIG: To the extent that you can answer this, is it about sharing criminal intelligence material between the two countries?

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Mr Negus: That is right—facilitating inquiries. If there were something to be conducted in Australia, they would request that through their embassy. That person would make the appropriate representations through whatever forum was appropriate and they would conduct those inquiries through the AFP.

Senator LUDWIG: Have you been asked by the government to work up more of these types of reciprocal arrangements that are in place? Mr Negus: We are currently having discussions with the government, particularly around people smuggling. There was a statement in a pre-election commitment to expand the network. We are currently discussing that. It has not been settled yet. It is really being considered.

Senator LUDWIG: I might leave it for another time to explore it a bit further, if you are indicating that that is early days yet? Mr Negus: Yes, it is.

CHAIR: Thank you for your evidence. After the break we will deal with ASIO. Proceedings suspended from 18:00 to 19:31 Australian Security Intelligence Organisation CHAIR: In the absence of the minister, we will start with Senator Edwards asking questions of ASIO. Senator EDWARDS: I will not go to operational matters, but I do want to talk about the Ben Chifley Building. Page 63 of the annual report for 2012-13 says that the Chifley Building is substantially complete. In November 2013 does 'substantially' take on a different meaning now than it had in that report? Can you give us an update of where it is?

Mr Irvine: Yes it does. It has all sorts of connotations of frustration on my part. It has been a very frustrating exercise for ASIO in that we had hoped the building would be ready for us to occupy in something like April of last year, and then progressively that date has been put back. I still cannot give you a date when a certificate of completion can be done. I am hoping it is before the end of this year.

Senator EDWARDS: On your website as recently as 30 minutes ago it said that you and all of your staff are to take possession in the latter half of 2013. Given that there is only six weeks left, are we going to hit that? Mr Irvine: Again my frustration is that I cannot guarantee that. The Department of Finance, as the owner of the building and the people who commissioned the building of it, and the actual builders might be in a better position to answer. I cannot. In the best of all possible worlds we will begin to move into the building sometime in the new year. I nearly said early in the new year but I am learning to be cautious.

Senator EDWARDS: You came to the role in 2009 and the project was under way. Do you have regular meetings with the Department of Finance and express your frustration with the delays? Mr Irvine: We certainly do have regular meetings with the Department of Finance. It appears to be a question now—it is substantially completed—of just making sure all the systems work to the high levels of efficiency that the Commonwealth would expect.

Senator EDWARDS: Is the building now at a stage where everybody who works on site has to have security clearance? Mr Irvine: Everybody who has worked on the site has had to have a security clearance from the start.

Senator EDWARDS: Are there still carpenters and plumbers and electricians down there? Mr Irvine: Mainly, I think, at the moment it is more systems engineers and that sort of thing. Senator EDWARDS: So the tradies, as we know it in the retail world, have gone? Mr Irvine: I would have to check on that. Ms Hartland: There are still some tradesmen there. As the director-general said, there are still some tradesmen there testing now to see that all of the systems are actually working together. They are still finalising some sort of maintenance and other things. So there are still some tradesmen on site.

Senator EDWARDS: Is there any furniture there? Mr Irvine: Yes. It is substantially—I use that word again—fitted out. Senator EDWARDS: So you can go down there and have a cup of tea and sit around a board table and essentially ensconce yourself there, except that a number of systems are not in place. Mr Irvine: Yes—relating, I think, to things like air conditioning, movement of air and those sorts of issues.

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Senator EDWARDS: Can you tell me who made the decision, and on what date the decision was made, to open the centre? Mr Irvine: I cannot tell you what date, but the previous government made the decision to open the centre. We wanted to open it prior to all of the staff moving in.

Senator EDWARDS: The date is important to me. Mr Irvine: I would need to find that out. Senator EDWARDS: Was the date on which you decided to open it prior to 27 May? Mr Irvine: I would need to take that on notice. Senator EDWARDS: Did you open it on 23 July? Mr Irvine: I believe that was the date. Senator EDWARDS: I really need to know who decided when they would open it. Mr Irvine: It was a decision of the government. Senator EDWARDS: Who particularly in the government? Mr Irvine: The Attorney-General, presumably in consultation with his colleagues. Senator EDWARDS: Is there somebody who could tell me that by the end of this session? Mr Irvine: I am not sure. We could try. Senator EDWARDS: Tell me the date when the decision was made to open the building of 23 July. How many people attended the opening of the building?

Mr Irvine: I would have to go back and check the guest list, but it would have been about 150 to 200— something in that vicinity. Senator EDWARDS: Who made the decision about who would attend that secure site, effectively?

Mr Irvine: ASIO certainly would have contributed, and did contribute, appropriate names of people within the bureaucracy, and the government decided who would attend on its part and, as I understand it, invited the opposition to attend as well.

Senator EDWARDS: Were former high-ranking ASIO officials invited? Mr Irvine: Some were, yes. Senator EDWARDS: On the basis of 'some', who decided which 'some' came to the opening? Mr Irvine: I certainly decided that all former directors-general should be invited. Senator EDWARDS: Was the former director-general invited? Mr Irvine: My immediate predecessor? Senator EDWARDS: Correct. Mr Irvine: I believe so. I would be surprised if he were not. Senator EDWARDS: So everybody attended. Did the former director-general attend? Mr Irvine: No. Senator EDWARDS: Do you know why? Mr Irvine: No, I do not. Senator EDWARDS: You have been quoted before, and I will paraphrase here, that the building would provide a level of security required, implying the nature of your work, and that those operations would be well and truly catered for within the building. Since your arrival there, has what you have demanded of the department changed in any way the specifications or the rollout or anything like that, from the original planning?

Mr Irvine: Not that I am aware of. I would need to check that. Senator EDWARDS: So you have not changed the spec? In your own mind and in your representations to a committee before, you have said that this means that the building will meet all the operational expectations, yet it still continues to be delayed by virtue of what? Mr Irvine: I think the Department of Finance is the principal contracting agency for the Commonwealth, and the owner of the building in this case is probably better placed to answer what the specific holdups are. But as far as I am aware, I am not sure that it is security issues that have held it up. There may be some related to the way the systems operate in the building. But it is also related to some of the engineering issues with the building.

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Senator EDWARDS: If you put it on a retail level, if you change the spec of a house you are building half way through the builder takes all the liberties and says 'You have thrown my work program out,' and then all of a sudden it is all your fault. Have you, since being there in 2009, changed the spec in any way in light of technologies or something, which now the Department of Finance or the builders are hiding behind, saying that they cannot deliver you this building on time, on schedule and on budget?

Mr Irvine: I think I can be reasonably confident in saying that any new requirements made by ASIO beyond the original specs—there may have been some alterations or whatever, but I do not believe that those would be sufficient to explain the delays in the building.

Senator EDWARDS: Going back to 27 May, news broke that there was some infiltration by a foreign country of details, and everybody, including you, was alarmed by it. Since that time has there been a re-specification of the building?

Mr Irvine: No, and certainly not in relation to the cybersecurity or the electronic security of the building, which is the subject of the claims that were made in the press. All I can say, as I said in a previous session of Senate estimates, almost immediately after the news broke, is that I remain confident that the building, from a security point of view, meets the standards we require of it.

Senator EDWARDS: Given that you still do not have an opening date and given that essentially all of those sensitive issues have now been housed within the building, why wasn't it that the building was opened in January, February, March or April—whenever it does get to be opened—in 2014, rather than in July of 2013, when effectively you still have carpenters, electricians, plumbers and carpet installers there and no furniture in the place?

Mr Irvine: Essentially, the answer to that is that for about six months the advice we had been receiving is that we should be ready in about six week's time. It just kept progressively being rolled back and rolled back. Senator EDWARDS: I am not verballing you here, but given that you do not know when the decision was made to have the opening, one would expect that six week's notice would be plenty to do an opening? What was the rush to open it? There was no operational issue. There were no security issues. You still have people on board there who are a low-level security risk. Why did we have 150 people invited to an opening of a building that essentially does not represent what its final—

Mr Irvine: The advice I gave to the government was that we would like to have a formal opening of the building before the staff moved in, before the formal process of our moving progressively—and it will take a period of up to six months to move into the building—

Senator EDWARDS: Whose advice was that? Mr Irvine: I certainly advised the government that I thought it was important that we opened and had a formal opening of the building, and if we brought people into it, before my staff moved in. At the time—at the middle of the year—that was likely, on the advice we were receiving, to be within a relatively short period of time. It is that relatively short period of time that just kept getting put back and put back. Senator EDWARDS: Have you ever built a house? Really, you can tell within six weeks whether a house is going to be built. You could tell when plumbers and electricians and all the various trades are still running around there with their belts on that this building was nowhere near substantially completed. Did you provide the advice to the Attorney-General that you should open it on 23 July? Mr Irvine: No, that was a decision of government. Senator EDWARDS: On whose recommendation? Mr Irvine: I presume the government's— Senator EDWARDS: So you did not actually ask if we were all set to go? Mr Irvine: I did not say a date, no. Senator EDWARDS: So just out of the blue you get a phone call, made somewhere in government and not in ASIO, saying that you should attend an opening on 23 July? Mr Irvine: I would not describe it like that. No. There was a process of discussions. When it was clear that the government, on my advice to open before we went in, and that it would be completed— Senator EDWARDS: Mr Irvine, did you provide that advice that you should open it? Did you really, or did that advice come to you? Mr Irvine: No. The advice I provided was that the building should be formally opened before we moved in.

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Senator EDWARDS: On your own evidence, and you are a very smart person—I suspect infinitely smarter than me—you would have intuitively known that that opening was still a very long way away. I am not sure why you, being that eminent person in the community, would have provided that advice to the Attorney-General.

Mr Irvine: In June and July we were being told that we would be moving in some time in September. Senator EDWARDS: Who told you that? Mr Irvine: That was the advice we received from Finance and presumably from the builders themselves. Senator EDWARDS: Do these people have names? Are they accountable for this misdirection? Mr Irvine: I think that series of questions probably should be asked of the Department of Finance, because— Senator EDWARDS: Colloquially, you have been given a bum steer. Mr Irvine: If you want to describe it that way. Senator EDWARDS: So the previous Attorney-General had this parade on 23 July for a building for which still to this day, on your own evidence, we do not have a known opening date. For what reason?

Mr Irvine: That is a question you would need to direct to the previous government. Senator EDWARDS: Are we going to have another opening when you are on the cusp of entering? Mr Irvine: That will be a decision for this government. Senator EDWARDS: Finally, what do you think the cost of remaining at Russell Hill—in that precinct—has been to date in the period that this project has blown out under the previous government?

Mr Irvine: I cannot give you a comparative cost, but the fact is that we continue to pay rent in the current building and we do not begin to pay rent in the new building until we have practical completion and we are able to start moving in.

Senator EDWARDS: I am a commercial landlord and I know that you would probably have to maintain the air conditioners and keep everything spic and span. You have all these things provided in the lease that you have to do. If you were not there you would not have to spend that money. Has anybody quantified—

Mr Irvine: Yes, but I would have to spend it in the new building, presumably. Senator EDWARDS: I do not know. It depends on what kind of a lease you have negotiated. I would hope that you have negotiated a very good one with the Department of Finance. Is there a cost? You may say there is no cost and you are not paying rent. What is the net cost to you by virtue of the Chifley Centre project being off-schedule? What is the cost of your remaining at Russell Hill that the taxpayers of Australia are incurring by virtue of the inefficiency of the Department of Finance in the previous government's regime? Mr Irvine: I have no idea what that figure would be. We would need to work it out. But I am not sure that your assumption that the cost to ASIO of this delay is in fact a cost to our budget. In fact it may well be quite the reverse, because the building will be more expensive than the ones we are in. Senator EDWARDS: There is an accounting term called fully absorbed cost. Has anybody in ASIO done an audit to see what it is, if there is a cost of this project running over and above what it is costing us out of the Department of Finance? Mr Irvine: I will take that on notice, because I simply do not know the answer. CHAIR: Are you your own boss when it comes to where ASIO lives and the fittings and all that sort of stuff, or is it done through the department. I am just wondering if Mr Wilkins has some information. How does it all work? Mr Wilkins: No, thankfully I have had nothing whatsoever to do with this project! Mr Irvine: I will check to make sure that you get an absolutely correct answer, but the fact is that we have provided specifications to the Department of Finance and the Department of Finance has negotiated—presumably called for tenders and contracts and all the rest of it—and the Department of Finance is managing the construction of this building and is the ultimate owner of the building, not ASIO. CHAIR: So the Department of Finance is the actual owner. Where are you now? Mr Irvine: Can I put it this way: we have our headquarters in Russell, in the Russell Defence complex, and we are in a number of other buildings around Canberra. CHAIR: Are they owned by the Department of Finance or by private landlords? Mr Irvine: Some are private landlords. CHAIR: Where is the new building located.

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Mr Irvine: It is located between Constitution Avenue and Parkes Way. If you are standing in the Department of Defence, it is down to your right, towards the lake. Senator EDWARDS: Instead of being the light on the hill it will hopefully be the light on the lake!

CHAIR: But the decisions about where you are operating from are ASIO's rather than the department— Mr Irvine: It has been a government decision that ASIO central headquarters will be located there. CHAIR: Recapitulating, are you saying that the arrangements for the opening were made by the former Attorney-General and you were told that this was the opening date and get your guest list together, order the grog and get the food. Is that how it occurred? Mr Irvine: In the way that these things work, that is a reasonable summary. Senator BRANDIS: I wonder if I might be able to help by giving a little bit more information in response to your last question about getting your guest list together. I was at the time the shadow Attorney-General, and I was very surprised that the invitation to me, which in fact I was not able to meet, came a matter of three or four business days before the opening ceremony. So this was obviously put together in a very hurried and, I thought at the time, irregular manner. CHAIR: Mr Irvine might like to comment on that, although I had some experience in the Department of Defence prior to the election, and that was a regular occurrence, Senator Brandis. But I have to say, in every instance the actual Defence chiefs, or whoever was running it, had sent the invitation months before, or weeks before, but it sat on the minister's desk until a couple of days before, when some embarrassed DLO would ring and say, 'Look, this is on the way; it's only just been cleared.' Senator Brandis: To the best of my recollection, in this case the invitation was received by me in my office for the first time on either the Wednesday or the Thursday, and I think the opening ceremony was the following Tuesday. I remember, because I could not be there, and the then Leader of the Opposition had to urgently change his schedule to ensure that he attended the ceremony, as he did. CHAIR: My point, though, to Mr Irvine was that he may well have issued the invitation some time before; it may not be— Mr Irvine: No, I think the invitations were issued very soon after the decision was made; I have to say that. CHAIR: Who actually was on the invitation as being the inviter? Was it you? Or the Attorney-General? Or someone else? Mr Irvine: I would need to check that. Senator Brandis: My recollection is that it was the Prime Minister of the day. CHAIR: So, the actual issue of the invitations was not your doing, Mr Irvine? Mr Irvine: Well, it was certainly organised by my organisation, yes. The guest lists were drawn up for the approval of the government, and I presume— CHAIR: The actual printing and dispatch of them was ASIO's? Or was it someone else's? Mr Irvine: No, I think it would have been us that did that. I will need to check. You are asking me questions that— CHAIR: They are pretty basic questions, which I would expect our spy agency not to be too involved in. I am just trying to follow what Senator Edwards is asking you. So, you were saying that, a week before, you issued these invitations, and Senator Brandis got his at the same time as the Attorney got it and at the same time as the former Director-General got it. Mr Irvine: I believe that is correct, yes. CHAIR: So that means that the invitations actually went to everyone only a week before the opening—a week or so? Mr Irvine: Yes, probably. Senator EDWARDS: Mr Irvine, you have made a commitment to come back to me and let us know what date the actual decision was made to open it on 23 July. Is that correct? Mr Irvine: I can come back to you on that. CHAIR: How many spies have you caught recently? I am getting on to the real issues! It is only a joke question; I do not really want to know that! Now, who else has questions of ASIO?

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Senator RHIANNON: I was after the figures for how many adverse security assessments have been issued in relation to unauthorised maritime arrivals, and I could find the data in the ASIO annual report for 2011-12, but it was not in the 2012-13 annual report. Could you provide us with that data, please?

Mr Irvine: Do you mean adverse security assessments across the board for every reason? Senator RHIANNON: This one was in relation to unauthorised maritime arrivals. Mr Irvine: I have given these figures I think in previous Senate estimates, but in 2011-12 we issued 23 adverse security assessments, of which 22 were to maritime arrivals. In the period 2012 and 2013, we issued two adverse assessments, one of which was to a maritime arrival. Senator RHIANNON: And since 30 June 2013? Mr Irvine: I have just been corrected. In that year we actually issued two adverse assessments to the same person. Senator RHIANNON: So, in 2012-13 it is actually only one ASA? Mr Irvine: No, it is one person affected. And for the period since 1 July there have been none. Senator RHIANNON: And in this 2012-13, how many ASAs have been issued in relation to Australian citizens and for Australian permanent residents? Mr Irvine: I do not have that figure in front of me. I would need to get it, because you are not talking about visa assessments now. Senator RHIANNON: No, I am still with the ASAs, and just trying to get a breakdown between— Mr Irvine: A visa assessment by definition is only given to a non-Australian who is applying for a visa to come to Australia—whatever type of visa. Senator RHIANNON: So, do I take from that that no Australian citizens have come under an adverse security assessment? Mr Irvine: No, and I would need to get you the figure for that. We issue adverse security assessments in relation to a number of Australians in relation to, for example, working with the Commonwealth in sensitive positions—security assessments for that sort of thing—for Commonwealth employment purposes. We issue security assessments in relation to people applying for work or appropriate passes to work at airports and in maritime ports. We issue security assessments in relation to people who we believe may be contemplating or risking an act of terrorism and so on. Senator RHIANNON: I am happy for that to be taken on notice. I was just after the total figures for Australian citizens and for Australian permanent residents, and also the figures since 1 July 2013. Mr Irvine: I will get that. Senator RHIANNON: Just to move on, how regularly does ASIO conduct reviews of adverse security assessments it has made? Mr Irvine: We review our assessments for cause if new information is coming through, with the passage of time, whether or not the circumstances or the context in which the original assessment was made has changed in some way. So it is not saying that within a fixed period everything will be reviewed. Senator RHIANNON: So there are no regular reviews? Mr Irvine: I would not use the word 'regular', but there is a process of review, and of course there is an independent review process going on. Senator RHIANNON: So, before we come to that process that has been undertaken, I understand, by Margaret Stone, I understand that the regular reviews are not undertaken, but are you proactive in any way in reassessing adverse security assessments? Or do you wait until new information comes to you? Mr Irvine: We have, over the past year, been looking at all of the assessments, partly in preparation to pass material to the independent reviewer. And certainly in the last six or seven months or so we have reissued non-prejudicial assessments I think in relation to three people. Senator RHIANNON: What are the sources in Sri Lanka that ASIO uses in making adverse security assessments? Mr Irvine: We use a whole range of open sources to assist us to assess the context against which we are assessing individuals. Senator RHIANNON: Could you define what 'open sources' means, please?

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Mr Irvine: The press, and we sometimes talk to other intelligence services, as well as diplomatic reporting and so on. Senator RHIANNON: How many agents does ASIO have in Sri Lanka? And do they all operate out of the High Commission?

Mr Irvine: That is a question that for operational reasons, reluctantly, I cannot answer. Senator RHIANNON: Of the open sources, is one of them the Sri Lankan government? Mr Irvine: We certainly read press releases of the Sri Lankan government, and we listen to what their diplomats say. But, if I can jump ahead, to repeat what I have said in previous Senate estimates, when we make an adverse assessment on a person who is claiming asylum, it has not been our practice to go back and ask the government of that country about that individual. Senator RHIANNON: Just to come to Margaret Stone in conducting her review, does she have access to all your files on a refugee with an adverse security assessment, including details of your sources and/or your rating of the credibility of the sources? Mr Irvine: She has access to every piece of information that we used in making that assessment, including all of the source reports. Senator RHIANNON: Do you rate the credibility of your sources? And would that be available to her? Mr Irvine: Any intelligence service that uses human sources must, if it is halfway professional, constantly examine the reliability and the access of our sources. It is not something you sort of sit down and do on a Wednesday three times a year; it is a continual process. Senator RHIANNON: Does ASIO disclose its sources for adverse security assessments to the Prime Minister? Mr Irvine: It has not been our habit to do so, and normally we do not—and are not required to—disclose our sources within government. That is not really the way a security and intelligence organisation should operate. Senator RHIANNON: When you say it is not your habit, does that mean it is not done at all or that it is periodically done? Mr Irvine: If it were done it would be done on the decision of the Director-General, and I do not believe I have ever made that decision in relation to the Prime Minister. Senator RHIANNON: Do you need to take that on notice? You said you 'do not believe'—does that mean you need to check up to— Mr Irvine: No, I do not need to check up; I have not done that. Senator RHIANNON: If it has not happened for the Prime Minister, would the answer you just gave also apply to the foreign minister and the Minister for Immigration and Border Protection—that that information is not provided? Mr Irvine: It is almost unheard of for us to disclose the name of a source to anyone outside the organisation. There may be times when I will need to describe a source to the Attorney or to whoever is receiving an assessment, and we use source descriptions to indicate to people who are assessing our intelligence, to give them a clue as to how much weight to put on a particular piece of information provided by that source. Senator RHIANNON: Thank you. Given that there are numerous documented cases of rape and torture by Sri Lankan government officials that are still occurring, what precautions are ASIO taking to ensure that they are not obtaining information from people engaged in or connected in any way to such activities? Mr Irvine: ASIO officers are bound by our internal rules to observe certain procedures in relation to the possibility of torture. We operate under three essential principles relating to the prohibition on the use and involvement of torture and other cruel, inhumane or degrading treatment. The first is that we do not use such methods ourselves. The second is that we act in such a way that does not sanction or encourage such behaviour by other people. If we find evidence or even have a suspicion that torture may be being used then ASIO officers under our policies are obliged to advice appropriate agencies of the government of that or any knowledge of torture or such treatment. I have to say that those principles are included in our most basic training program. Senator RHIANNON: Thank you. That sets it out very quickly. But what I take from that, though, is that it does not sound as though you are proactive in assessing the people who you work with—in this case, Sri Lankan officials. That question is particularly relevant, as there have been many reports of ongoing torture and rape, to the point that the British Prime Minister went to those places and met those places.

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Mr Irvine: I need to know what the basis of that question is. Are you saying that we are going to talk to people as sources who may or may not have been guilty of torture? Senator RHIANNON: I am raising the question because there have been so many cases of documented of security people in Sri Lanka involved right now on a continuing basis since 2009 in cases of rape, assault and torture. When your people are interacting and working with these security people—

Mr Irvine: You have just made the assumption that we interact and work with them. I do not think that that is an assumption that you can make. Senator RHIANNON: Good. So you are saying—

Mr Irvine: I am not going— Senator RHIANNON: You have used the term 'open sources'. Clearly, there is some level of interaction with people in Sri Lanka. Otherwise, you would not need to have your ASIO agents in Sri Lanka if they are not interacting at some level. Mr Irvine: You are now assuming that I have ASIO agents in Sri Lanka. Senator RHIANNON: You have ASIO people in Sri Lanka. Mr Irvine: I have said that that is an operational matter that I am not able to address. CHAIR: The committee would not want you to, Mr Irvine. Senator RHIANNON: To finish it off, if you had ASIO agents in a country like Sri Lanka, where it has been documented that many of their security people have been involved in very serious crimes, how would you proactively ensure that your people were not working with, engaging with or taking information from these people? Mr Irvine: It is a hypothetical question. CHAIR: I should not have allowed it. Mr Irvine: All I can say to you is that in relation to torture ASIO officers have very clear guidelines to which they work. I am pretty confident that they understand those guidelines and work to them. Senator EDWARDS: In all countries. Senator RHIANNON: All I am trying to get at how you are proactive on this. If you cannot share that with us, that is disappointing. I am sure that we can come back to it. Senator Brandis: In fairness to Mr Irvine, he could not have been more emphatic or unambiguous than he was in his last answer about the very strict policy that ASIO adheres to in relation to matters of torture. Senator RHIANNON: That is an interesting response, Minister. It was obviously very impressive to hear those three principles outlined. All my question was about is how we are not just reactive but proactive when you are in a country where these high levels of abuse are occurring so that our agents or our people—whatever we call them—do not caught up in it. Senator Brandis: First of all, Mr Irvine has said, quite properly, that he does not comment on operational matters, so your question is based on a speculative hypothesis that has not been accepted. Secondly, with all due respect to you, I do not know how one can better be proactive in any circumstances than to have a very strict rule and always observe it. Senator RHIANNON: If you are collecting information— CHAIR: Hang on. Senator RHIANNON: There is a question here. If you are collecting information for adverse security assessments you can also be collecting information about crimes that have been committed by other people as well, Attorney-General. CHAIR: And what is the question? Senator RHIANNON: We have had the three principles set out but we have not had the information set out before us about we ensure that our people do not get caught up in this by association. I would think that that is a relevant question that needs to be answered to this parliament. CHAIR: That is not a question. You have not asked a question. Mr Irvine answered that point three four statements ago. Senator LUDWIG: Have you been asked by the department or by the government more broadly to review or look at your anti-terrorism laws?

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Mr Irvine: The previous government— Senator LUDWIG: I am referring to this government. To put a date on it, after 7 September. Mr Irvine: The answer to the question is that the previous government implemented a review. We have not been asked specifically to review the counter-terrorism laws per se, but we would expect to be in discussion with the government on proposals that have been made and that were put on the table by the previous government. But I have to say to you that will be a decision by this government as to what they wish to do in this area. Senator LUDWIG: Coming back to the question, though, have you been consulted by the government about a review of anti-terrorism laws? Mr Irvine: I do not think that we have got a formal instruction of that nature. Senator LUDWIG: In respect of ASIO's current powers, have you been consulted by the government as to their sufficiency? Senator Brandis: Can I respond to that question, Senator Ludwig? If I may say so with respect, you are missing the largest single fact about this topic, and that is that over the last two years the Joint Parliamentary Committee on Intelligence and Security conducted a major review into, among other things, the powers of the national security agencies, including ASIO. Mr Irvine, on behalf of his agency, appeared at the hearings of that inquiry on more than one occasion, as I recall. I participated in that inquiry from start to finish. It was conducted by the committee in a bipartisan manner. Very late in the life of the last parliament, the committee produced a unanimous report. The topic which you are now exploring was, in the context of that inquiry, the subject of very extensive discussion within the committee and between members of the committee, including me, and Mr Irvine and heads of other intelligence agencies. The line of inquiry that you are pursuing, Senator Ludwig, implies that this is something that has not been present in the mind of the new government. In fact, it has been something that has not only been present in the mind of the new government but has been present in my mind and the subject of active and continuing discussions going back well before my party was elected to office. It is very much under consideration by the government, as it would have been by the Labor government had they been re-elected. This is, as it were, one of the big topics of the last two years in this area. Senator LUDWIG: Thank you. Senator Brandis, have you communicated since 7 September any of your views to ASIO about the direction? Senator Brandis: I speak to the director-general and his senior officers very frequently. You would not expect me to disclose— Senator LUDWIG: No, of course not. Senator Brandis: the content of those discussions, of course. But between the director-general and I this has in one way or another been a matter of very frequent attention for more than two years. Senator LUDWIG: Turning to the implementation of policies within this area, the coalition took a range of policies to the election. Did any of those touch the area of anti-terrorism or national security? Senator Brandis: Although this has been an area of policy approached in a bipartisan spirit, the coalition does have a different emphasis in relation to aspects of national security policy. In fact, if you had time to see it, you would have observed that as recently as in this morning's Australian newspaper I repeated some remarks that I made some time ago when I was the acting shadow Defence minister. When the government's white paper was published, the implicit view—as we read it—that terrorism was not as large a threat as it had been in the years immediately following 911 was in our opinion a very serious error of judgment and a very wrong emphasis. As I said in the newspaper interview reported in the Australian this morning, the methods have become more sophisticated but the risk is not diminished, a fact demonstrated simply because the national risk assessment has not changed in all those years. Although as I said in general this has been a bipartisan area the coalition did have a different take on the profile of risk from terrorism than the previous government. Senator LUDWIG: Was there a coalition policy that outlined that the department now has and is seeking to implement? Senator Brandis: Our policy was and always has been to support the national security agencies. The new Prime Minister and I in our various ways made clear many times that we would give the national security agencies the resources they needed to perform their work. You will recall, perhaps, Senator Ludwig, that over several years in this very estimates committee I have been critical of what I said was the diminution of the recurrent resources provided to ASIO and the AFP over several of the budgets of the government of which you were a member. Another important point of difference between the coalition and the Labor Party in our approach is our attitude to the sufficiency of the resourcing of the national security agencies.

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Senator LUDWIG: What I was trying to identify was whether or not a policy of the coalition, outlining what you just described in general terms, had been submitted to the PBO or, alternatively, provided to the department to work on.

Senator Brandis: I think I have just indicated to you two very important differences within the broader context of what has generally been— Senator LUDWIG: It was a specific question. Either there is or there is not.

Senator Brandis: A what? Senator LUDWIG: Was a coalition policy on this submitted to the PBO for costing? Secondly, if it was, have you provided it to the department to implement? Senator Brandis: I think the department has been made very well aware of the coalition's position in relation to these matters.

Senator LUDWIG: So the answer is no on both counts. Senator Brandis: In relation to submissions to the PBO, I direct you to the Minister for Finance. The present Treasurer and the present Minister for Finance, who was the shadow Assistant Treasurer when my party was in opposition, were responsible for the submission of material to the PBO. Senator LUDWIG: In terms of the department, Mr Wilkins, have you received a costed coalition policy dealing with antiterrorism or national security from either the Department of Finance or the PBO that you are required to implement? Mr Wilkins: I think the Attorney has answered that question. Senator LUDWIG: I understand 'no'. Is that correct? Senator Brandis: Your understanding is not correct, Senator Ludwig. The policies that the coalition took to the election are to be found in many places, but the most obvious place to find them is in the declarations that the new Prime Minister, and I as the minister responsible for ASIO, made in the years the now government was in opposition. Senator LUDWIG: I accept that. What I was trying to ascertain is whether there was a published coalition policy in respect of the matter we have been discussing, whether there was any PBO costing of it and whether it was referred to the department to implement. It is a simple question. Senator Brandis: There were a variety of statements which I certainly consider to be statements of policy. In relation to the submission of documentation to the PBO, I direct you to Mr Hockey and Senator Cormann. Senator LUDLAM: Welcome back, Mr Irvine. Your annual report touches on concerns that you express about a home-grown Edward Snowden. The words in the annual report are along the lines of, 'Espionage activity extends to the threat of a trusted insider.' What preventative measures, whether they be deterrents or threats—you can be as general or as specific as you like—are you taking to deter what you call 'the threat of a trusted insider' within your organisation? Mr Irvine: It is not simply a question of 'within our own organisation' but a question relating to people within the broader government. People who are employed by ASIO have to have appropriate security clearances which are only obtained after an extremely rigorous and intrusive vetting process. That process is repeated throughout the career of an ASIO officer. We rely on the effectiveness of that vetting process to a fair degree. Secondly, the organisation itself has a necessarily strongly developed sense of internal security. It is part of the psychology, if you like—the DNA—of an ASIO officer. Thirdly, we have a whole range of security procedures and practices which must be observed within the organisation in terms of access to material and material that can be taken in and out of the building and, if so, how and so on. The issue, then, of a trusted insider—and all of our people by definition have to be trusted—is: can we detect in time someone who has betrayed that trust. Senator LUDLAM: You would be aware of course, in the context of some of your counterpart agencies in the United States, that both Edward Snowden and Private First Class Chelsea Manning were also security cleared. Mr Irvine: Yes, I am aware of that. Senator LUDLAM: Are the standards that you hold your employees to higher than those in some of our counterpart agencies in the United States? Mr Irvine: I cannot talk for the counterpart agencies in the United States, but I am satisfied that in the standards that we adhere to, and that other agencies within the Australian government seek to adhere to, we certainly do aspire to be very high.

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Senator LUDLAM: No doubt you would be aware of reports in The Guardian and on the ABC this morning in which a PowerPoint presentation with ASD's logo all over it is being put into the public domain. This is an agency so secret that we cannot even call them before these estimates committees, unless, Senator Brandis, you want to advise us there has been a change of policy in that regard. I will pause there, if you have anything you want to add.

Senator Brandis: Do you have a question, Senator? Senator LUDLAM: Firstly, do you intend to have ASD be able to be called before budget estimates committees and, if not, why not? Senator Brandis: The ASD is an agency within the Department of Defence. I am not the Minister for Defence; however, I would expect that the pre-existing practice of that committee would be adhered to by the new government.

Senator LUDLAM: I will pursue that later in the week, but thank you for your advice, Senator. Mr Irvine, that is one example that comes to mind of where security practices overseas that are perhaps of a lesser standard than what you are trying to uphold here in Australia have led to Australian material being plastered all over the internet. Again, that appears to have come from inside the agency. It must have done.

Mr Irvine: I think it is obvious that material that has been released by Mr Snowden and is now in the public realm is a matter of very great concern, and when that material is Australian material it is obviously of very great concern to the Australian government.

Senator LUDLAM: I thought so. Without trespassing anywhere near operational matters, would you describe there as being a fairly high degree of collaboration between ASIO, your companion agencies here in Australia and your counterparts in the United States?

Mr Irvine: There is good collaboration and productive collaboration between ASIO, other Australian agencies and friends around the world. Senator LUDLAM: How much material? Have you done an audit of any kind, subsequent to those disclosures being made by Mr Snowden through media organisations around the world, of exactly how much of ASIO's material might find its way into the public domain through those channels?

Mr Irvine: I think it stands to reason that that is something that we would do, but I am not going to comment on the nature or scope at this stage. Senator LUDLAM: Okay. You have conducted some internal review or audit or something?

Mr Irvine: Yes. Senator LUDLAM: When did that occur? Mr Irvine: As soon as it became clear what sort of information was being put out into the public domain. Senator LUDLAM: Do you have a clear idea of exactly how much of your internal documentation, such as this PowerPoint presentation, has been shared with United States agencies?

Mr Irvine: We have a good idea of what information we have shared with other allied and friendly agencies, but I will not go any further than that. Senator LUDLAM: Does it disturb you somewhat that the US government was in possession of PowerPoint presentations from the ASD disclosing—

Mr Irvine: That is a question that has to be answered by the Department of Defence and the ASD apparatus. Senator LUDLAM: Do you share my suspicion that one day it will be an ASIO PowerPoint and that we will be asking these questions about your work directly? Mr Irvine: I most certainly hope not.

Senator LUDLAM: Under the Telecommunications (Interception and Access) Act why are you not required to report your records identifying metadata collection as, for example, the Federal Police and a number of other agencies are?

Mr Irvine: We are very keen to ensure that the nature of our intelligence inquiries and investigations is kept secret so that it is not possible to determine who and what we are targeting. Senator LUDLAM: Would you not, though, apply that same line of logic to the Federal Police? They investigate serious organised crime.

Mr Irvine: The Federal Police operate in a different sort of environment and it is not, I think, right to compare apples to apples. I would add, too, that the notion that these figures are not reported publically, does not equate to

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the notion that this is a process that goes on willy-nilly, unregulated, unmonitored or without any oversight. For the use of metadata in our organisation we need quite specific internal authorities. Our use of the data, our attempts to get that data and so on are carefully monitored by the Inspector General of Intelligence and Security. There is a highly developed process of accountability which I would hope would give people an assurance that we are not acquiring data willy-nilly for prurient purposes. Everything we do has to be in accordance with our act and the telecommunications interception act.

Senator LUDLAM: I think you might have answered my next question pre-emptively. So you do keep substantive internal records that would enable you to identify, at least to the IGIS's satisfaction, the number of citizens whose telecommunications stored data have been intercepted or monitored, whether metadata or substantive data.

Mr Irvine: The Inspector General of Intelligence and Security has the right to access all ASIO records and data and files, and does monitor the use both of metadata with internal ASIO processes and the use of warranted interception activities approved by the Attorney as they occur.

Senator LUDLAM: Would you have to put up a specific flag if you were obtaining the metadata through a warrantless process or had applied a warrant to access material relating to members of parliament, senators and journalists in this building?

Mr Irvine: I have answered this question before—I think, probably, you asked it—in the following way: the ASIO act, and the responsibilities that have been given to ASIO under that act, require it to investigate and advise the government on all threats to security as defined by part IV of the act, no matter who the individual is.

Senator LUDLAM: We have had variants on this conversation before, probably more than once. Are you required to notify the IGIS if an Australian member of parliament is required to be under investigation, either through a warranted or a warrantless process?

Mr Irvine: I do not believe that there is a formal requirement for that. I think my practice would be, were it to occur, that I would probably notify the IGIS. Senator LUDLAM: Are you implying that it has not occurred thus far?

Mr Irvine: No, I am not implying either way. Senator LUDLAM: It is always worth asking. Are you currently surveilling members of parliament or senators? Mr Irvine: No.

Senator LUDLAM: Sometimes you let your guard down, but not often. CHAIR: I assume that you treat everyone in Australia the same if they fall into the categories of your requirements under the act. Mr Irvine: In exactly the same way as law enforcement is required to treat everyone equally.

Senator LUDLAM: To traverse some ground that we have discussed before, I am interested, again without compromising ongoing operations, in whether or not you are engaged in surveillance of people who are planning peaceful demonstrations at the G20 meeting next year in Brisbane.

Mr Irvine: I am not going to answer that, but you do know that our remit, our requirement, does require us to examine whether or not there are possibilities for political violence or potential political violence taking place. That is under one of the part IV elements of the heads of security.

Senator LUDLAM: Violence is one of your key threshold tests, is it not, for when something is— Mr Irvine: It is an important threshold, yes. Senator LUDLAM: It is not the only one but it is a key one. Mr Irvine: It is a key one. Senator LUDLAM: To the degree to which intelligence agencies are still under control of democratic institutions around the Western world, at least, would you agree that people's confidence has been shaken since the revelations about what is occurring in the United States have become widespread?

CHAIR: I am not sure that that is a question for this— Senator LUDLAM: Shall we see whether Mr Irvine is prepared to take the question? Senator Brandis: Senator, you are asking for some political commentary by Mr Irvine. He may have views about this. Senator LUDLAM: Some of Mr Irvine's views are quite instructive.

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Senator Brandis: I thought we were here to consider the budget estimates. I am sure Mr Irvine would have both well informed and illuminating views on all range of political topics, but I am struggling to see how he has opinions about political topics bear upon the budget estimates, Senator.

Senator LUDLAM: All right. Let us get back to specifics then. Do you have any visibility of foreign heads of state or are you restricted entirely to domestic operations, Mr Irvine? Mr Irvine: I operate under the heads of security in the ASIO act.

Senator LUDLAM: So I would need to put questions regarding the scandal that has broken open today regarding the Indonesian government to ASIS, who also do not show up, or to ASD? CHAIR: Senator, you take your own advice on that.

Mr Irvine: I am not going to comment on what essentially are turning into foreign policy issues. My responsibilities are specifically for security intelligence under the ASIO act. Senator LUDLAM: I will leave it there. Thank you.

CHAIR: As there are no other questions on intelligence we will move on to outcome 1, groups 2 and 3. Senator Brandis: In relation to the arts, I think that the words beside the asterisk at the foot of page 2 refer back to the very first item on the program, so that has already been dealt with. CHAIR: All right. I am just trying to get a feel for how many senators we have. We have sort of indicated we will look at approximately 40 minutes each. Senator Singh.

Senator SINGH: Mr Wilkins, we started this morning talking about staffing in the department. I might put a number of questions on notice because there is not a lot of time for the three groups, but I did want to ask you about vacancy control. Will vacancy control apply to specialist positions in the Attorney-General's Department?

Mr Wilkins: What do you mean by vacancy control? Senator SINGH: I am talking about legal and justice positions. If you are going to have natural attrition, which I think you were talking about this morning, obviously the department has specialist areas where those positions need to be carried out by people with special skills. That is what I mean by vacancy control. Are you going to actually look at ensuring that those areas that need to remain do remain. Mr Wilkins: Of course. It will not be done in a silly way. Senator SINGH: Has the department offered any packages to staff as a means of achieving the overall 12,000 job cuts target? Mr Wilkins: We have offered voluntary redundancies if that is what you mean. It is not as part of the 12,000; we have just offered some voluntary redundancies. That is to meet, as I said, the former government's efficiency dividend and, prospectively, the additional 12,000. Senator SINGH: Okay. So, separate from redundancies, are you looking at ways you are going to make this 12,000 cut? Mr Wilkins: There are not any other ways of downsizing one's staff except through attrition, voluntary redundancy or forced redundancy. We are not looking at forced redundancy, so we are looking at attrition and voluntary redundancy. There are only three ways to do it. Senator SINGH: So you are not looking at forced redundancies? Mr Wilkins: I am not looking at forced redundancies, no. Senator SINGH: All right. I will put the other staffing questions on notice. I now want to ask some questions in relation to the royal commission into the institutional response to child sex abuse. Do you have anyone coming to the table? Mr Wilkins: We have the CEO of the royal commission here. At last estimates I did talk about the sensitivities of going into areas which essentially you have to do with the content of the royal commission. Senator SINGH: I will not be going into sensitive areas; it is okay. It is just some brief questions. Mr Wilkins: If it is about bed and rations and things like that. Senator SINGH: Yes. What is the budget allocation for the royal commission? Is the commission proceeding on budget? Ms Dines: The commission has been appropriated an amount of $228 million for the period 2013-14 through to 2015-16. At the moment, we are operating within that budget. Senator SINGH: Okay. Are people who appear before the commission provided with legal representation?

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Ms Dines: Yes they are. There is a special scheme where people are entitled to legal representation. Senator SINGH: And that is the usual practice? Ms Dines: That is right. That has been the practice for most royal commissions. Senator SINGH: Are people who appear before the commission provided with counselling or other kinds of support?

Ms Dines: There is a range of counselling available to people. The commission provides people with access to counselling from the time a person may first engage with the royal commission. That includes support for people who might come to a private session or a public hearing. A big factor of what we do is provide referrals for people, so we support people throughout their engagement with the royal commission and then help them to access support in the broader community.

Senator SINGH: And that is the usual practice as well, particularly pertaining to this royal commission? Ms Dines: It is a very special feature of this royal commission given the nature of the issues and given the sorts of people who would be witnesses before the royal commission. Senator SINGH: Has the Attorney-General's Department provided any briefing to the government on the proposed repeal or amendment of section 18C of the Racial Discrimination Act?

Mr Wilkins: Yes. Senator SINGH: Can the committee be provided with a copy of that briefing? Mr Wilkins: No. Senator Brandis: By the way, Senator Singh, you are meant to say 'repeal or amendment'. Senator SINGH: 'or amendment'. I have it written here. Senator Brandis: I only heard you say 'repeal'. Senator SINGH: No—'repeal or amendment'. Senator Brandis: Thank you. Senator SINGH: Mr Wilkins, has the department provided any briefing to the government regarding how the denial of the Holocaust, specifically denial of the nature, extent or existence of genocidal policies of the Nazis towards Jews during the Second World War, could be prohibited in the event that section 18C of the Racial Discrimination Act was amended or repealed?

CHAIR: That is hypothetical, is it not? Senator SINGH: No, it is a question to Mr Wilkins. Mr Wilkins: The answer is no, in any event. Senator SINGH: Do you have a view on the appropriateness of singling out a single historic atrocity as the only one the denial of which should be prohibited under federal law?

CHAIR: We are not asking Mr Wilkins for his view or opinion on things. That is not the way these committees work. Mr Wilkins: I have a view—but it is irrelevant.

Senator BOYCE: Mr Wilkins, we have been down this path before: Indigenous justice pertaining to the campaign, particularly pertaining to people with cognitive impairment. I am never quite sure where I should ask what the update on that is.

Mr Wilkins: That is in group 2—we can take it up then. It is also something which under the new arrangements is probably better addressed to Prime Minister and Cabinet. I do not want to be difficult, but a lot of the people who were working in that area have been transferred to Prime Minister and Cabinet under the new arrangements.

CHAIR: Is there anyone here who could answer some of Senator Boyce's questions? Mr Wilkins: I do not think so. CHAIR: Not even in group 2? Mr Wilkins: No, because the people who would have been in group 2 are now off with Prime Minister and Cabinet.

Senator BOYCE: Which part of Prime Minister and Cabinet?

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Mr Wilkins: Under the new arrangements Indigenous programs have been centralised in Prime Minister and Cabinet— Senator BOYCE: Yes, they are in Finance and Public Administration—except that justice was never an area that was canvassed on Fridays at the cross-portfolio meetings because Indigenous justice was not seen as a specifically separate issue, so to speak.

Mr Wilkins: I see. The justice programs that were in the Attorney-General's Department, when we did last estimates, are no longer in the Attorney-General's Department. There are some arts programs, still, and native title is still handled by this department, and Indigenous legal aid is still handled by this department.

Senator BOYCE: Thank you, I think. Mr Wilkins: We may be able to help at least by getting the names of relevant people you might be able to talk to. Senator BOYCE: Thank you.

Senator SINGH: Were the Attorney-General, Minister for Justice or their staff consulted regarding the FOI release for the incoming government brief before the decision maker made his or her decision? Mr Wilkins: No.

Senator SINGH: Were they consulted after the decision, but before the applicant was informed? Mr Wilkins: What do you mean by consulted? I do not understand that. Senator SINGH: I am trying to ascertain whether there was consultation about the decision in relation to incoming government briefs not being released. Mr Wilkins: No, there was not. Senator SINGH: The department made an assessment of the incoming minister's briefs for then Attorney-General Roxon and approved its release on 2012. Was the department's assessment that it was in the public interest to release that document at that time? Mr Wilkins: I am not sure it was as simple as that, releasing the—I do not think that was the view taken by the department at that time. I will need to check, but I do not think that is correct. Senator LUDWIG: Could you take on notice how it was released? Mr Wilkins: I do not think it was released. Senator SINGH: It was. Senator LUDWIG: I am just trying to remember how it was released—whether it was released by a decision of the FOI office within the department or whether the minister himself released it. Mr Wilkins: We think it was released in part. I will take that on notice. Senator SINGH: All right, take it on notice. I am trying to ask, Mr Wilkins, what has changed between the releasing of incoming briefs between 31 May this year—when the department released Minister Dreyfus's incoming minister's briefs again on 18 October this year—and now. Mr Wilkins: When you say 'what has changed', what has changed, in part, is the practice of people asking for incoming government briefs and the clear signal from people that they would request those sorts of documents. The other thing that has changed is very clear ruling by the Office of the Information Commissioner, which squarely says that it can be seen as contrary to the public interest and interfering with the proper operations of an agency. Those things have changed. I think it has concentrated the minds of public servants on documents of that sort and the importance of documents of that sort. Senator SINGH: But you have not released any documents——not 'of any sort'—not any. Mr Wilkins: I am not the decision maker. Senator SINGH: The request for incoming government briefs has resulted in none of them being released. Mr Wilkins: That is right. Senator Brandis: For the reasons that Mr Wilkins just described. Senator SINGH: But Mr Wilkins talked about certain types. Mr Wilkins: It should go further afield, in my view, when I look at these things and see the incoming government briefs—these briefs, for example. If you want democracy to work in any sensible fashion, then you cannot stop the Public Service from giving candid advice, particularly to an incoming government and probably

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in areas such as this. If you want people to take every question on notice, then you would start asking for these documents to be produced. Senator SINGH: That is why I am asking what has changed under attorneys-general Dreyfus and Roxon, and Brandis.

Mr Wilkins: The position was firming up for a long time, when we see the way in which the Freedom of Information Act is being used. I do not think it was necessarily ever intended in that fashion. Senator SINGH: Are you saying it is not in the public interest?

Senator Brandis: Senator Singh, might I add that neither Attorney-General Roxon nor Attorney-General Dreyfus nor I was the relevant decision-maker, but, as you have already heard from Mr Wilkins, I know, at least in my case, that the decision was made without any prior consultation.

Senator SINGH: Mr Wilkins, are you saying it is not in the public interest for the incoming government briefs to be released? Mr Wilkins: That is precisely what I am saying.

Senator SINGH: How do you make that claim? Mr Wilkins: I have not made the claim, but the person who made the decision had set it out, and we can read out in the text the considerations in relation to the public interest. If you wish, I can get Sarah to read it out. Sarah is the decision-maker in this case. Would that be helpful? Senator SINGH: Is Ms Chidgey able to table and provide that advice to the committee—where disclosure would be contrary to the public interest? Mr Wilkins: It is on the website, but there is no harm in releasing it, obviously. CHAIR: If it is on the website, it is already released, isn't it? Mr Wilkins: It is there and people can access it. I am happy for senators— CHAIR: Give Senator Singh the link, would you? Senator SINGH: I would appreciate that the committee was provided with a copy of the advice of how disclosure would be contrary to the public interest of the incoming briefs under this government as opposed to what has occurred in the past under the previous government. Mr Wilkins: Let me be very clear. This is a position that I take and people have taken as public servants. It does not actually have anything much to do with who is in government, I have to say. Senator LUDWIG: Coming back to that, though, you are saying that, as a blanket position, incoming government briefs, irrespective of what they may contain, whether they deliver information or have merely factual information—this is what I think you have said—the public interest would deny the release of that incoming government brief. I would ask you to go back and read Crowe, if that is your position, because that would not be how I would understand it. If you are also adding the rider that it would prevent you in a blanket form from providing frank and candid advice to the minister, I would invite you again to go back and read Crowe, because that is not what it is saying. We have rejected that proposition since, I think, Sankey and Whitlam, as an excuse for government not releasing information. What you are then saying, effectively, is that, as a class action, this information should not be released, and that is not Crowe and that is not good law. Mr Wilkins: I do not actually agree with that, but we can have a discussion. But it is not about Sankey and Whitlam; it is about section 47E of the freedom of information legislation. So it has really nothing in this context to do with Sankey and Whitlam. Senator LUDWIG: You did mention the difficulty of providing frank advice and frank advice has been considered in Sankey and Whitlam. It was then subsequently considered in a range of cases since then, but it is also mentioned in Crowe itself as not a reason to rely on as a public interest test, as I understood it. I am open to be wrong about this. Mr Wilkins: But I think Sankey and Whitlam is about a different case entirely. Senator LUDWIG: I would invite you to read Crowe. Mr Wilkins: I have read Crowe and we do not necessarily think it goes far enough in its interpretation. It is a guidance note; it is not necessarily the definitive interpretation of section 47E. Senator LUDWIG: Coming back to my question earlier, which you have not answered is: are you saying that, as a matter of fact, you are relying on the public interest to rule out incoming government briefs as a class of document? That is what it seems you are suggesting.

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Mr Wilkins: No, I am relying on the exemptions in the freedom of information legislation. One component of that is that the decision-maker needs to be convinced that it is in the public interest to invoke that particular head which is in relation to, would interfere—I do not have the text in front of me—with the legitimate or the proper operations of an agency. What could be a more proper operation of any agency than to oversee the orderly transition of government? We have reached the conclusion that it is contrary to the public interest, in that sense.

Senator LUDWIG: Coming back to that one point, that is a class of document called 'incoming government brief'. Mr Wilkins: That is right.

Senator LUDWIG: I invite you to say that, surely, factual information contained within that would not offend the FOI Act. In addition to that, what you are putting, effectively, is that it would be a class action, in truth—that you would say the public interest would rule out the entire document. I would invite you to consider [inaudible] again because I do not think that is an accurate—

CHAIR: This is becoming a bit of a debating society. Proceedings suspended from 21:05 to 21:20

Senator SINGH: Mr Wilkins, you told the committee that the disclosure of the blue book would be contrary to public interest. Mr Wilkins: Yes.

Senator SINGH: That is the total blue book. Why not provide a redacted copy? Mr Wilkins: I think I explained that. Senator SINGH: No, I do not think you did. Mr Wilkins: We can go back to the FOI. The best thing is for me to get Sarah to read out what her decision was in relation to the public interest. Do you mind doing that?

CHAIR: Is it very long? Senator SINGH: My question is about providing a redacted copy. Mr Wilkins: That is because we— Senator SINGH: I know you have chosen to not provide anything, but now I am seeing whether or not the Attorney-General's Department would provide a redacted copy.

Mr Wilkins: The answer is: the decision maker decided not to. Senator SINGH: How is that different from the two times the IGBs have been provided this year? Mr Wilkins: The last two times we played softball and now we are playing hardball. Seriously. Senator SINGH: Hardball—in other words, to continue not being transparent and secret, which this government has form on, thus far.

Mr Wilkins: As I have already explained, Senator, it was a decision made by public servants. It had nothing to do with the government. Yes, it is about being secret, if you like to put it that way. It is about confidentiality of documents, and it is for good public purposes.

Senator SINGH: We have come to learn that this government is continuing to be secret. Moving along to another question now, Chair— CHAIR: We were going to table that. How long is it?

Ms Chidgey: The full decision is seven pages. CHAIR: We will not read it; the committee agrees for it to be tabled. Senator LUDWIG: Senator Brandis, having heard all of this, I wonder if you could at least provide us—your view is that you can release the document or even a redacted document under 3A(2). I wonder if you could cut the impasse that we have currently struck with the department and release either the document or a redacted document, under 3A(2)? Senator Brandis: As you know, I am not the decision maker. Senator LUDWIG: But you can, under 3A(2), release— Senator Brandis: I do not have a copy of the act in front of me so I would need to remind myself what that provision says. In any event, I would be most reluctant—and perhaps it might even be improper for me—to interfere with the independent process that the act establishes. You have the advantage over me, Senator Ludwig,

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because I imagine you have the act in front of you. I do not. I would be very reluctant to second-guess or override an independent decision-making process by the Public Service. Senator LUDWIG: I would invite you to have a look at 3A(2). I am happy for you to take it on notice and reconsider that decision.

Mr Wilkins: Senator, 3A(2), which I have now looked at, does not give the minister any power to override the decision. Senator LUDWIG: It is not overriding the decision.

Mr Wilkins: It is about the objects of the act. Senator LUDWIG: If you read that further, if you can see it, it does not prevent the minister from releasing the information. It does not override— Senator Brandis: I am sorry, Senator Ludwig, honestly and truly. Clause 3 is an objects clause. I did not realise that. Section 3O, I should say, is the objects clause of the act. Senator Ludwig, you are a barrister. You should know this. It is not a power conferring provision at all.

Senator LUDWIG: It is not under the act empowering you to do anything. What it is pointing to is that you can as a government release any information that you see fit. You are not bound by the FOI Act not to release information of the government. You can as a government provide any document.

Senator Brandis: I think that if I or any minister in the government said, 'We don't consider ourselves to be bound by the FOI Act,' we would be rightly and heavily criticised for being indifferent to the act. The act establishes a mechanism; it establishes a process of review; it places that process in independent hands away from politicians; it creates an avenue of appeal which can, on points of law, go all the way to the federal judiciary and indeed to the High Court. It is an entirely independent process, independent of the government of the day. I think that is a good thing and I would certainly not consider it appropriate or desirable to subvert that independent process.

Senator LUDWIG: That is not exactly what I am asking you to do. Should you so wish, you could release it. But you can, clearly, as the Treasurer did, proactively release the document. If you choose not to, then that is entirely within your decision.

Senator Brandis: We do not make that choice, Senator Ludwig. That is the point that Mr Wilkins and I and others have been at pains to make to you. This choice, this decision-making process, established by the act locates the decision-making power in an independent decision-maker, not the minister and not to be interfered with by the minister.

Senator SINGH: Has the department provided advice to the Attorney-General or Minister for the Environment on the royal commission into the Home Insulation Program? Mr Wilkins: I am not sure what you mean by 'advice'—advice about anything in particular?

Senator SINGH: Advice on the royal commission and the Home Insulation Program. Mr Wilkins: Yes, we provided advice in some sense of that word. Senator SINGH: Did the department recommend a royal commission to the Attorney-General or has instruction instead been received from the Attorney-General? Mr Wilkins: That is actually confidential between the department and the Attorney, but it is certainly among the options being looked at by the department. Senator SINGH: Why is that confidential? Why can't you tell the committee whether you recommended the royal commission or whether the Attorney recommended the royal commission? Senator Brandis: Senator Singh, it has always been my understanding of the rules here that you are at liberty to ask whether advice was provided, and Mr Wilkins has been very forthcoming. When I was in your position I always took the view that I was at liberty to ask the date on which advice was provided. I think I also took the view, to which I adhere, that you are at liberty to ask for the form in which advice was provided—whether it was orally or in writing. But the one thing, it has never been in controversy, you cannot do is ask what that advice was, and there are— Senator SINGH: I did not ask that. Senator Brandis: No, excuse me. If I may finish, please. I was going to go on to say that one of the ways in which a senator, particularly a skilful cross-examiner like you, Senator Singh, can try and elicit that information is to put a proposition and say, 'Was advice to this effect provided?' or present a binary choice and say, 'Was it this or was it that?' There are many ways to skin a cat in order to try and get around the rule, but, nevertheless, the rule

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is you cannot ask what the substance of advice provided to government was, irrespective of how you phrase your question. Senator SINGH: Senator, I do not need to be lectured by you on how to ask questions during Senate estimates. I simply asked a question and Mr Wilkins has chosen to answer in the way he has chosen to answer it. Mr Wilkins, does the department's advice at all indicate that a royal commission is likely to provide a different outcome to the previous inquiries into this matter?

CHAIR: I am ruling the question out of order. You know you cannot ask— Senator SINGH: You cannot put words into the witness's mouth. CHAIR: You cannot ask public servants to disclose advice they have given to the minister. That has been the rule for as long as I have been here, and that is a long time now. So there is no need to answer that, Mr Wilkins. Senator SINGH: All right. Mr Wilkins, will this royal commission proceed in accordance with established conventions in terms of appropriate legal support for witnesses and families of affected persons? Mr Wilkins: My understanding is yes. Senator SINGH: What cost has been estimated for this royal commission? And will that come from the department's existing budget? Senator Brandis: I think we are getting a little ahead of ourselves, because, although the government has made a decision to establish a royal commission, the royal commission has not actually been constituted yet. Letters patents have not yet issued. I know there was a press report last week that rather suggested otherwise but that report was premature. There is no royal commission at the moment. There will be a royal commission when the letters patents issue but that has not yet happened. Senator SINGH: I will save that question for the time when there may be a royal commission. That is all I have for group 1, Chair. Senator LUDLAM: I presume this is the right place to ask this question. Mr Wilkins, I was asking before about the AGD's FOI disclosure log. It used to be that when you released documents into the public domain you would release a link to the documents themselves on your website. You have ceased doing that. Can you provide us some background as to why and when that occurred? Mr Wilkins: I will get Ms Glanville to do that. Ms Glanville: Under section 11C of the Freedom of Information Act departments are able to define their disclosure log by release in different ways. The Attorney-General's Department has made a change in the way in which it does that although still complying with section 11C in the act, which is publishing on the website other details of how the information may be obtained. The reason why that change was made is because the documents on the website as they currently existed—this is a technical answer—were in a PDF format and because the PDF format is not accessible to all of the population that may choose to use them, that would have downgraded our overall website accessibility rating. Senator LUDLAM: Now they are not accessible to anybody, so there is real equality! Ms Glanville: As is indicated on our website, people can request those and we will make them available to them. But that was the rationale behind it. It still complies with the legislation but the decision was made as a consequence of the fact that the PDFs were having an impact on our overall accessibility rating of our website, particularly for example for people with disability. It was the rationale behind that. Senator LUDLAM: That is absolutely bent. Now there is nothing there at all. Ms Glanville: Well, we are still complying with the legislation and people can still request— Senator LUDLAM: It is a rather narrower form of compliance though, isn't it? Ms Glanville: People can still request access to those documents and we are still compliant with 11C. But that was the rationale for that decision being made. Senator LUDLAM: Did you contemplate putting them up in some kind of open document format? Ms Glanville: We have looked at that and we are still looking at that. It is quite difficult because of the nature of the redactions in documents. Senator LUDLAM: Maybe you should redact things less. Ms Glanville: It is something we are certainly looking at. We know it is an issue and we are committed to looking at that.

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Senator LUDLAM: I am relieved to know that it is still an open process, that we might end up seeing things loaded back up. You folk really should be setting the example, the highest standards of transparency. CHAIR: You should ask a question.

Senator LUDLAM: That is a fair call, Chair. Earlier on again we briefly discussed a story that had run on the ABC around freedom of information requests to your department relating to a briefing that had occurred a few months before the Snowden revelations. You pulled me up and said, 'That's not quite right.' The secretary has made a copy of the article, and also the page of the FOI. Can I just—

Mr Wilkins: Sure. Could we tell you why the article is not right? Senator LUDLAM: Yes, I would greatly appreciate that, just briefly. And I will just table that article. Mr Wilkins: Perhaps I can get Tony Sheehan to explain it to you. It takes a little bit of explanation, because there are some technical aspects to this. Mr Sheehan: The background to this is that in considering the FOI request all documents that were within the scope of the request were considered, as we would always do. There was one document that was considered and that we concluded was an exempt document, which was a protected briefing to the Attorney. Senator LUDLAM: Was that 21 March? Mr Sheehan: The document date was listed as 21 March. The date on the document is the date the template was created. It was a generic template. The information relevant to the FOI request was not actually entered into the template until July, but because the officers looking at it could find no other document date but the overall template date—because there are a number of things put into such a template—the best date that they could put there was March. But actually that March date was not the date that the information relevant to the FOI request was entered; that was July. Senator LUDLAM: That is quite useful information. So, that is much appreciated. It is somewhat misleading, though, to put a document into the public domain that is out of date by a factor of four or five months. Mr Sheehan: It is important to know that in no way would the department attempt to be misleading. The officer was acting in good faith, picking the date on the document—the only date they had. If I had seen that at the time and realised it, then I would have sought another date that would have been more helpful. Senator LUDLAM: Did you speak to the journalist in question and attempt to correct the record? That story created quite a stir at the time. Mr Sheehan: No. We would have been very willing to, but we were unaware that the story was running until after it had run. Senator LUDLAM: Sure; I get that. But did you seek to correct the record after the story had gone to press? Mr Sheehan: There was contact, I think, between our communications area and the journalists. I do not know the details of what that communication was. Senator LUDLAM: Okay, but the story is still live; we did a search for it this afternoon. So, you do not appear to have tried all that hard. Not to worry. And, just for the record, what we receive is a page full of black felt marker; that is not particularly helpful for us in trying to establish the veracity of the data, the document. Chair, if I carry on I am probably going to stray into substantive issues, so that is all I have for this group for this part of the schedule. Senator LUDWIG: In terms of providing support to the minister, I am just trying to understand the role here. The Department of Parliamentary Services provides some support. Do you provide support, and what is the nature of the support you provide to the minister's office? I do not mean to the minister him- or herself but, in this instance, to the office. Mr Wilkins: I had better let Ms Glanville explain that, because I have to say I have always found it a bit arcane. Senator LUDWIG: It seems confusing to me as well. Mr Wilkins: And you're a minister! Senator LUDWIG: Was. Mr Wilkins: Yes. Ms Glanville: I suppose I could start by thinking that with any new government we provide support firstly to help the minister or ministers, as often we would have in our portfolio, establish their offices. That establishment cost can include costs related to computers and those sorts of things to get the office up and running. And then we

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would cover operational costs for those offices as well, and that would include telephony, stationery, programs for computers as they were needed—all those sorts of areas, to make the offices functional and able to deal with the tasks that ministers and their staff need to deal with. In addition, early on in the life of governments we can provide some transitional staff. Often a minister will be

sworn in and they may not have staff readily available to them, so the department would provide some transitional staff for very short periods of time—that is up to 12 weeks under the guidelines. And of course we provide DLO assistance across the life of any minister or government in terms of the liaison function between the minister's office and the department.

Senator LUDWIG: Thanks very much, and I will put some of these questions on notice in view of the time. So then, in terms of the office itself, as a physical office, do you provide any furniture or fixtures—that is, in the minister's wing?

Mr Wilkins: It is a bit of a grey area. I think it mainly comes out of the parliamentary budget. Senator LUDWIG: Well, I am asking whether you have. Or, have you been requested to provide furniture or fixtures? Mr Wilkins: I do not think so.

CHAIR: Take it on notice, perhaps. Senator LUDWIG: I am trying to simply rule out whether you have been requested or not. Have you had a request to install a desk, a bookshelf or anything of that nature in the ministerial wing? Mr Wilkins: I do not think so, but I will take it on notice.

Senator RHIANNON: What government departments and agencies are exempt from FOI provisions? Mr Wilkins: I will get Andrew Walter to explain it to you. Mr Walter: The exemptions are set out in the schedules to the act. Schedule 1 is exemptions under section 6, and then schedule 2 is exemptions under section 7. They are quite complicated provisions, so I could read through all that if you like. The lists are not particularly long. Schedule 1 has three agencies, a number of which do not exist anymore—the Australian Industrial Relations Commission, the Australian Fair Pay Commission and the Industrial Registrar and Deputy Industry Registrars. And then schedule 2 goes through Aboriginal Land Councils and Land Trusts, the Auditor-General, the Australian Government Solicitor, ASIO, ASIS, the Inspector-General of Intelligence and Security, the National Workplace Relations Consultative Council, the Office of National Assessments, the Parliamentary Budget Office, and the Parliamentary Budget Officer. Senator RHIANNON: And then we have the departments as well—the Senate and the House of Representatives departments? Mr Walter: Yes, but that is not covered in the FOI Act. That is correct—they are exempt. Senator RHIANNON: So, can you just run through which departments are exempt? Mr Walter: The two departments you have talked about—the Department of the Senate and the Department of the House of Representatives—are exempt. They are the departments that are exempt. Senator RHIANNON: Isn't there the third one—the Department of Parliamentary Services? Mr Walter: Sorry, yes—and the Department of Parliamentary Services. Senator RHIANNON: So, just three. Any others? Mr Walter: No—unless there is something in another piece of legislation that I am not aware of. Mr Wilkins: We do not want to mislead on questions of law, so can I suggest that that is a best endeavour to answer your question. Senator RHIANNON: And can you take it on notice and just type it up if needed? Mr Wilkins: Well, we do not give legal advice to the committee, actually, so you should read the FOI legislation. Senator RHIANNON: But you have given an answer. Can I just ask for it to be taken on notice if we have to type that up? Mr Wilkins: Seriously, Senator, we do not give advice. We are not here to give legal advice to the community. Senator RHIANNON: Well no, it was not legal advice; you know that, Mr Wilkins. It was just a simple question.

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Mr Wilkins: Well, we have just answered the question. Senator RHIANNON: So, you are satisfied that is complete? Mr Wilkins: No. Senator RHIANNON: Okay, so, as you are not satisfied it is complete— Mr Wilkins: But I am not going to do the research on it, Senator. Senator RHIANNON: Mr Wilkins, you seem to be getting tighter and tighter with your answers. Anyway, I am happy to move on. I want to see where the open government declaration is up to. I understand that the former Attorney-General, Mr Dreyfus, said that we would join, but I wanted to check. I understand that we did not join. Is that the case? And what is the position of the current government with regard to the open government declaration? Do they have any intention of joining and, if so, what is the time line on it?

Mr Fredericks: In order for Australia to join the open government partnership officially, Australia is required to develop an action plan in relation to that by April of 2014. That essentially represents the deadline for Australia to finally decide whether to join, and obviously at that time it will be a matter for government.

Senator RHIANNON: I was not aware of that date. Is that a date for everyone, is it? You have to have your development action plan in by then or have indicated that you are working on it? Mr Fredericks: For every country that wishes to join in 2014, the deadline for those countries to submit their action plan will be April of 2014.

Senator RHIANNON: Is there any work being undertaken on an action plan in Australia currently? Mr Fredericks: There is. In fact, in the last three weeks there have been two interdepartmental meetings to continue work on the action plan in order to put government in a position to make a decision. I can give you the details of those interdepartmental meetings, if you wish. On 29 October there was a meeting. It was attended by representatives from AGD, AusAID, Communications, DFAT, Finance, PM&C, Industry, and the Office of the Information Commissioner. That was the first meeting of that group since the election, so that was a general discussion about Australia's potential position post the election. There has been a second meeting. That was on 5 November 2013, and that was a meeting between the four core departments: PM&C, AGD, Finance, and Communications. And that was in order to discuss the next steps. Senator RHIANNON: I think you used the phrase, before you gave the details of the meeting, that these meetings 'put the government in a position to make a decision if they wish'. Thank you for the details about the meetings. What is the next process with regard to the government making the decision? Is there any time line that has been set by the government for making that decision? Mr Fredericks: No. Senator RHIANNON: So, what is the process subsequent to those two meetings? Mr Fredericks: Conscious of the final time line date of April 2014, the various departments will discharge their obligation to provide advice to the government for its consideration. Senator RHIANNON: Just on some specifics about FOI, I have noticed how the case load is growing larger. It is something that we talk about regularly at estimates. Many cases are taking over a year to finalise. Why is the Office of the Australian Information Commissioner are not referring cases directly to the Administrative Appeals Tribunal? Mr Wilkins: The Office of the Australian Information Commissioner was here earlier today. You would have to ask them. Senator RHIANNON: Would the minister or yourself, Mr Wilkins, be able to share any information about this, as I obviously ran out of time. I thought it was an important question and I would like to hear your views on it. Considering we have this problem—which I would hope that you would all address periodically—that the FOI case load is growing larger and it is taking more time, there does appear that there is a way of handling this. Mr Wilkins: I think you should have had that conversation with the Office of the Australian Information Commissioner, because I do not know if the premise on which your question is based is one that he would accept. I think it is much more complicated. It is certainly something that you would need to take up with him, not me. Senator RHIANNON: Thank you, Mr Wilkins. I will put it in on notice. Senator BOYCE: These are in relation to Australia's former adoption program with Ethiopia. I received a response to a question on notice, Question No. 2161, which advises that no children had been referred to the program for intercountry adoption at the time that the program was stopped. In fact, I have here—I am happy to provide them if you want them, although I believe that the department would already have them—copies of

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emails between the director of the Family Umbrella Association and Australia's representative in Ethiopia that show that 10 children had been referred to the program at that time and that at least seven of those children had already been matched with Australian parents at the time of the program's closure. Could you explain this contradiction, please?

Mr Arnaudo: There is no contradiction. At the time of the closure of the program, there were no children referred to the program because the program did not have the authority of the regional government in Ethiopia to operate.

Senator BOYCE: That is not the case in further information that I can provide. Mr Arnaudo: It is one of the essential prerequisites for operating in that region. Senator BOYCE: That was one of the answers that you gave as to why keeping the program open would be difficult, which was because of the need to obtain regional government approval, is that right? Mr Arnaudo: That is correct. At the time— Senator BOYCE: I have a letter here from the Tigray regional government asking for the federal Ethiopian government's support for federal court approval for three siblings who had been matched with Australian couples. The regional government has written to their own federal government in Ethiopia, at the time of all of this, demonstrating that they were actively supporting it. This is a letter from Daniel Abraham from the Regional Government of Tigray Bureau of Labor and Social Affairs to the Ministry of Women Children and Youth Affairs. It sets out the approval of the Tigray regional government. Are you saying that does not exist? Were you unaware of that? Mr Arnaudo: The Tigray regional government had not provided approval for the program as a whole to operate in that area, particularly because we did not have a community development plan in place that was agreed to with the Australian government and the Tigray regional government. Senator BOYCE: Except that, again, documents I have show a signed, agreed, approved, funded community development program in Axum town, a youth recreation centre, that was already in place at the time the program was closed. Mr Arnaudo: I am aware of the Axum youth centre program; but it was clear that, one year before the program was closed, in June 2011, the department instructed the representative not to proceed with that initiative and no funding was ever provided to the Tigray regional government. So the documents you have seen have unfortunately been taken out of context. In June 2011, one year before the closure of the program, the Attorney-General's Department made it clear that we were not able to commit to that project for the time frame. So at the time of the closure of the project one year later, in June 2012, there was no community development plan in place between the Tigray regional government and the Australian government. That was an essential— Senator BOYCE: Mr Arnaudo, this sounds like a crazy sort of catch-22: we don't support the establishment of a community development program, we don't support the approval from a regional government in 2011—and then in 2012 we say, 'We're closing the program down because it does not have these things that we sought to not have'. I am sorry, but that sounds somewhat peculiar. Mr Arnaudo: One of the concerns that the government had for some time over the operation of the Ethiopian adoption environment was particularly the linkage between community development and the adoption process itself. So, throughout the operation of the program, since the Attorney-General's Department took it over in about 2007-08, we were always concerned to make sure that that was clear and that there was clear separation. At the time of the closure of the program there was no community development plan in place, and that was one of the essential prerequisites to have the regional government's approval to operate the program there. Senator BOYCE: So what, then, is the outcome from the fact that there are at least seven Australian families who were matched with children—you can say they were not, but they were of the view they were and they had undertaken documentary procedures in Ethiopia—by organisations that had been approved by Australia, prior to us disproving them, so to speak? What did you say to those seven families? Mr Arnaudo: Again, there was no 'matching' of children, because the requisite independent background checks of those children were never undertaken. We did not have approval to operate in the Tigray region, because there was no community development plan. Senator BOYCE: Short of dragging the seven families in here to say, 'As far as we were concerned, we had gone through every part of the process; we had worked with Australia's representative on inter-country adoption in Ethiopia'—whose name I have here: Lemlem Fesseha. These families had worked with the Family Umbrella Association, they had worked with Ms Lemlem Fesseha and they had gone through every stage it was possible to

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go through, in their view, to be matched with children—and had children who, as far as they were aware, and as far as the documentation provided to them in Ethiopia said, they were entitled to adopt and bring back to Australia. How does that happen? Mr Fredericks: Can I assist on this one. It is obviously a difficult issue.

Senator BOYCE: Of course it is. Mr Fredericks: We, as a department, understand the emotion involved in this and the proposition you are putting. Walking in the shoes of the families— Senator BOYCE: Particularly when you think that someone did not undertake IVF because they thought they had an adoption organised.

Mr Fredericks: Of course. Walking in the shoes of the families we can empathise that, as far as they were concerned, all necessary steps had been completed in order to have a child matched with them. Unfortunately, that just did not happen: there were a number of steps, from the Australian government's point of view, which still had to be undertaken—and they were important steps, because essentially they are the way the Australian government ensured that there was sufficient rigour around that program to, in a sense, protect the parents, to protect the interests of the children and to ensure that funding was properly spent. So, at the end of the day, Senator, the parents can have their view that all steps have been taken but, from an Australian government point of view, all steps at that stage had not been taken.

Senator BOYCE: The steps that were not taken were: approval from the Tigray regional government— Mr Fredericks: Correct. Senator BOYCE: Despite the fact that there are documents here saying that they were supportive of the program. Mr Fredericks: At the end of the day, it was a matter— Senator BOYCE: That was not quite 'approval'—right? Mr Fredericks: The Australian government formed a view that that was not sufficient approval—that is correct. Senator BOYCE: Do you think that is a technical issue? Mr Fredericks: We honestly don't think so, Senator. In good faith, we took the view that— Senator BOYCE: But the Tigray regional government provides documents that the Tigray regional government believes—so they say—allowed for approval. We then have documentation around the development of a youth recreation centre in Axum town—12 months before the program was this community development program closed down, this youth recreation centre was set up and proceeded with. But then we are told that that was not done properly either. Is that right? Mr Fredericks: Fundamentally, that is right. To take the first point about the view of the Tigray government, at the end of the day the Australian government, in these circumstances, is entitled to make its own judgment about whether sufficient approval has been secured. I think senators, and the Australian community, would expect us to do that. Senator BOYCE: I absolutely agree with you, Mr Fredericks. I guess that leads us into the next question around adoption itself. I just have concerns that, in fact, to talk about saying there was no child who had been 'matched' available is splitting hairs. The federal government, and the Attorney-General's Department—and perhaps the then Attorney-General—it would appear may have had other motivations. If you wanted to say to those seven families, 'No matter what hoops you jump through, you will not be considered to be matched by the Australian government', that would have at least been honest. But that is not what happened to those seven families. What redress is there for them? Mr Fredericks: Certainly our approach has been to give those families all the assistance that we have been able to give. There were offers of refund for all of the fees that were incurred in the process. So, really, Senator, I think it is fair to say we were not unsympathetic to the plight of the families and we really took the opportunity to do as much as we could, consistent with the decision that had been taken by the Attorney of the day. Senator BOYCE: There is also a strange comment in answer 2161 given to me, which talks at great length about the decrease in inter-country adoption in Australia reflecting a worldwide downturn since 2004. Why was that information included? Mr Arnaudo: That information was included to provide a bit more perspective in terms of the global trends of inter-country adoptions. The nature of adoptions is changing in many countries across the world. For example, the

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adoptions that are occurring out of China today are very different to even four years ago. In a sense, there was a spike in adoptions in Ethiopia, particularly in the late 2000s. There were other factors at play that often meant there was a global— Senator BOYCE: But that raises the question that in fact it was a completely philosophical decision made,

one presumes by the then Attorney-General, Ms Roxon, that she just did not like inter-country adoption and shut down the program. Mr Fredericks: The department gave what we thought was proper advice about the circumstances of the program, including the fact that those conditions had not been satisfied. We provided advice and the Attorney-General made a decision. Obviously I cannot speak to the motive of the then Attorney-General, but I can say on behalf of the department that we gave very careful consideration to the particular circumstances of the Ethiopian program. It is worth noting—my colleague can give more detail—that the department continues to engage in intercountry adoption programs in 13 other countries across the world, to the benefit of Australian parents. We are very committed to that and see it as very good work.

Senator PERIS: During the lead-up to the federal election, the coalition announced they would cut $42 million from the Aboriginal Legal Service sector. Secretary, can you confirm the amount they intend to cut from this sector that represents the most imprisoned group of people in Australian society?

Mr Wilkins: It is probably a bit premature to conclude that anything is going to be cut out of that legal assistance. This is still very much an issue in play, in the budget process and in the commission-of-audit process, so I would not yet conclude that the money is going to be cut out of that program.

Senator PERIS: So it is still in review. Mr Wilkins: Yes. Senator SINGH: In follow-up from Senator Peris, Mr Wilkins, it is in the coalition's fiscal budget impact statement that there is to be $42 million cut—the Reprioritise Indigenous Policy Reform program. Mr Wilkins: I think we pointed out that the actual program identified is not a policy program; it was a legal assistance program. We are looking at alternative ways in which that sort of money could be found in the budget process. I do not think the intention is to cut that much out of Indigenous legal aid. Senator Brandis: These are all decisions, as Mr Wilkins has said, that are part of the budget process. I do not want to make any cheap political points, but it is the fact that we have to find a lot of savings to start paying off the debt. With the exception of a number of particular areas of the government's operations—most particularly, areas like health and medical research, and the Defence Force, which the Prime Minister has identified will be quarantined—it will be necessary for there to be savings found across the entire public sector, to deal with the unprecedented level of public debt. That is one of the reasons the new government was elected—to deal with this, and we mean to. Senator PERIS: At the moment, the Aboriginal Legal Service in the Northern Territory has been forced to close a prison-support program and youth-justice program, due to these cuts, to ensure that they can continue to run general operations. Can you justify cutting access to justice programs for the already most-imprisoned people in this country? Mr Duggan: I am unaware of the two programs you mentioned. Certainly, the North Australian Aboriginal Justice Agency has a range of programs that are funded by the department, on behalf of the government. I am unaware of the programs that you mentioned. If you could detail them to me, then I could check, but I am certainly unaware of the programs you mentioned. Senator Brandis: The other point I would make, if I may, please, Senator Peris is that, whatever economies there may be, they have not been implemented yet. I am also unaware of the programs you mention, but, if they have been cut back, it has not been in consequence of any decisions made by the recently elected government. Senator PERIS: This is a question for the minister. Can you categorically undertake that no Aboriginal legal aid service will be forced to close or cut services to Aboriginal Australians because of the proposed funding cuts or— Senator Brandis: As I indicated in my earlier answer, economies will have to be found across almost all areas of government operations. What those particular economies will be and whether necessary cuts will be made is matter for the budget process. Senator PERIS: Aboriginal legal services have not heard of any funding commitments for the new financial year. Could you please advise when these services will receive this information?

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Mr Duggan: There has been no indication to Aboriginal legal services that there is any change to the forward estimates in relation to their funding. Their agreements run until 2015. At the moment, as the minister has indicated, there has been no decision by government to in any way cut back on the program or modify it. So the services will have the money that is in the forward estimates for them until 2015. There has been no other discussion with them in relation to there being any cutbacks of any sort.

Senator Brandis: Senator, we do mean to find economies and we do mean to reprioritise expenditure within funding envelopes. I cannot give you an assurance—I want to be very honest with you about this—that a particular program will not be affected by that reprioritisation. But, as the deputy secretary has just said, the programs of which you speak are funded until 2015.

CHAIR: Could I ask that the outcome 3 people come to the table. I will try and give a little bit longer to the Australian Labor Party, being the official opposition, and a little bit less to the Democrats. Senator SINGH: The Democrats are not here.

Senator Brandis: Whatever Senator Rhiannon may have been called, I am sure she has never been called a Democrat. Senator WRIGHT: Chair, I would like to follow—

CHAIR: All I am saying is it is your time. If I divide the time equally you will all have about six or seven minutes. I am leaving it to you decide whether you want to do it on outcome 2 or outcome 3. Senator WRIGHT: Can I continue then with this line, please?

CHAIR: Yes, but you will have about five minutes now for both outcomes. Senator WRIGHT: That is not particularly fair. I was ready to ask my question. I will start now. My understanding is that the government announced a cut of $42 million from the Indigenous Legal Aid and Policy Reform Program just prior to the federal election. It would appear to be a cut of about 15 per cent of what is budgeted over the forward estimates. My understanding is that that was an announcement that was made before the election. What we are hearing now is that in fact that is not a cut that is going to necessarily be followed through on. Naturally the agencies that are within that program are anxious to have some certainty about what will be happening and what that cut might mean to them on the ground. What I would like to ask first of all is: can you advise what proportion of that program is currently spent on front-line services, as opposed to the proportion currently spent on law reform? Mr Duggan: There was a time, about five years ago, when the program had a separate allocation for policy reform activities. That was around $2.1 million. However, it is a question of definition. Clearly, significant resources go into responding to government questions on particular issues, such as law reform initiatives. It would be impossible for us to estimate just exactly how much effort goes into precisely that issue because the program now, of course, is fused and there is no separate allocation for it. Senator WRIGHT: Thank you, because my understanding is that that is the term that has been used to suggest that these cuts would not affect front-line services. But, in fact, if it is not possible to determine what proportion of a program goes to each, that would be difficult to determine I would have thought. Mr Duggan: Yes, Senator, that is true. Senator Brandis: I think, Senator Wright, it also depends in part about what you mean by 'front-line services'. I know that you, Senator, chaired the Senate select committee into access to justice, which reported earlier this year, and I am great admirer of your committee's report. You treated front-line services in a particular way. I think you probably are aware of my view which is that front-line services should be given preference over the other services—this is controversial, I know—including advocacy work that legal assistance providers provide. My own view is that it is more socially just if the limited amount of money available, which does not meet the demands upon it, is exhausted on casework and front-line services rather than other things, which although are arguably worthwhile, are not as pressing. Senator WRIGHT: That is interesting because it is not actually a phrase that I tend to use; it is a phrase that others are more likely to use. Senator Brandis: It was in your question. Senator WRIGHT: I used it because that is, in fact, a term that has been, I understand, discussed in the context of these budget cuts. My concern and the concern of some of the people that I have been talking to, who are concerned about Indigenous justice and Indigenous incarceration rates, is that apparently it is difficult to determine anyway what part of that program is devoted to law reform and policy and what part is devoted to so-called front-line services. As well as that I will ask a question and that is: have there been any predictions sought

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or any work done about how those cuts, if they were to go ahead,—and that was the figure that was actually provided—would likely to impact on Indigenous incarceration rates, which we all know are highly disproportionate at the moment in Australia. What would be the effects of those cuts if they were to go ahead? Mr Wilkins: We have not done any work on that. That would be quite a complicated exercise, actually.

Senator WRIGHT: An important one, I would suggest. Mr Wilkins: It is an important question, but it would be very complicated to try to trace out what might be the implications of funding cuts of this type in legal aid. Senator WRIGHT: Given that that was the figure that was initially provided,—and we do not have any certainty that that is not figure that will be cut; it may well not be we are hearing now—I would ask you to take on notice some kind of modelling about what the effect might be, because you would be in a position to determine what are front-line services and what are law reform and policy services.

Senator Brandis: Senator Wright, your question assumes that modelling has been done. Senator WRIGHT: No, I am asking that it be done. Senator Brandis: I do not think, if I may say so, that that is really a proper use of the take-on-notice procedure. You can ask for information and, if the officers do not have the information at the table, you might ask them to take the question on notice. What you are asking for is something else. You are actually asking them to undertake quite a complex exercise and potentially, I dare say, an expensive exercise. I do not think that is something that can really be done. You might suggest that it would be a good idea but, if the modelling has not been done, it has not been done. Senator WRIGHT: I accept and understand what you are saying. What I would suggest then is that, if there are any predictions that have been made or any information that has been sought in these discussions that are apparently occurring about how budget savings are to be made, in the context of this figure having been announced before the federal election, I would ask that you take on notice and provide information to the committee about them. CHAIR: I am afraid that is where we have to stop. I am going to give the Australian Labor Party, the three senators, until quarter to 11 for groups 2 and 3. Choose it yourself and choose the time amongst the three of you. That is until quarter to and then the two Democrat senators. Honourable senators interjecting— CHAIR: The Green Senators—they are not much different to me. Senator CAMERON: Mr Wilkins, you are familiar with the recent bushfires in the Blue Mountains in New South Wales. Mr Wilkins: A bit. Senator CAMERON: I am asking for familiarity from your department's involvement. Mr Wilkins: Sort of, yes. Senator CAMERON: I do not know what that means, but anyway. Do you accept in Tasmania after the bushfires there the federal and state government through the federal Attorney-General's department had contracts in place for demolition and removal of affected properties within eight days? In Victoria there were pretty huge bushfires, it was 21 days; and in New South Wales we are now into our 32nd day with still no contracts in place. Can you advise as to whether this is part of the department's problem that we have this lag or why we have taken so long, given that Tasmania had an equivalent bushfire disaster to the Blue Mountains and they took eight days? Mr Wilkins: My understanding—I will get my officers to correct me, if I am wrong—is that this is mainly a matter for state governments. What the Commonwealth does is to provide funding. We do not enter into these contractual arrangements. It is not a Commonwealth function, but Chris Collett or Tony Sheehan might want to add to that. I do not think it has got much to do with anything my department has or has not done. Senator CAMERON: Your deliverable in 1.7 is about immediate relief and recovery assistance. Senator BRANDIS: I might be able to help, Senator, if I may. Under section 1061L of the Social Security Act, the Minister for Justice is required to make a determination as to the category of payment under the Australian government disaster recovery payment scheme, which is available in a particular disaster—that is, to make a determination as to the eligibility criteria. A distinction is made between victims who are significantly affected and victims who are moderately affected. The criteria for significantly affected are that a person is seriously injured or that a person is the immediate family member of an Australian who was killed as a direct result of the disaster; or a person's principal place of residence

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has been destroyed or a person's principal place of residence has sustained major damage; or a person is a principal carer of a dependent child and the dependent child has been affected by of the above categories of events. In each of those cases, that is treated as a person having been significantly affected for the purposes of the

Australian government disaster recovery payment under the Social Security Act. In relation to the recent New South Wales bushfires, the Minister for Justice, Mr Keenan did make such a declaration. I am advised that as of 8 November 2013, 696 claims had been approved, applying those eligibility criteria worth $771,200. That is federal money but, as Mr Wilkins has pointed out, there is a lot of state money as well.

Senator CAMERON: I am happy to go there. I will come to that issue. But I want to concentrate for the moment on the demolition and removal, because it is one of the key aspects; if you look at all the literature, the quicker you can start the road to recovery—and that is part of your deliverable—the better. So are you simply saying, 'We have taken 32 days and it has nothing to do with the federal government; it is a state government problem'?

Mr Wilkins: Yes. Senator CAMERON: It is a state government problem? Mr Wilkins: That is what I am saying. Senator CAMERON: So Barry O'Farrell has not reacted effectively— Mr Wilkins: I don't know whether Barry O'Farrell has reacted effectively or not. But we are in the hands of state governments generally in relation to these arrangements. The comparative speeds that you quoted—and I do not know whether they are correct or not—are contingent on state governments to do this stuff.

Senator CAMERON: Given our deliverable on 1.7, you are— Mr Wilkins: Our what? Senator CAMERON: The deliverable. Mr Wilkins: What deliverable? Senator CAMERON: On 1.7. Mr Wilkins: I don't understand what you are talking about. Senator BRANDIS: I think he means—that is Rudd generation speech for 'outcome', I think. Senator CAMERON: 'Program 1.7: Deliverables'. Senator BRANDIS: They are like 'announceables'. Senator CAMERON: I don't know what they are 'like'; they have always been 'deliverables' ever since I have been in the Senate. So, Mr Wilkins, so I am not sure why you wouldn't understand that.

Mr Wilkins: Continue. Senator CAMERON: It is to 'provide immediate relief and recovery assistance'. Mr Wilkins: Yes. Senator CAMERON: Program 1.7. So, if the view is that getting the demolition and removal underway is about the best way to recovery, the best way to economic recovery, why do we simply say we have absolutely nothing to do with it?

Mr Wilkins: We live in a federal system, and the states are responsible for this. The Commonwealth's responsibility—and a responsibility we take seriously—is to make funds available, and the states enter into these arrangements, the sort that you are talking about.

Senator CAMERON: So, if we have no responsibility and it is simply— Mr Wilkins: Can I repeat what I said: we are responsible for funding and, if it is because we have been derelict in getting the money across to New South Wales, then that is an issue. But, if it is not to do with that, then the question—the differential between Tasmania, Victoria and New South Wales—is a matter for the states. It may well be a matter for different circumstances under different disasters. So that is what I am saying. Senator CAMERON: Can someone tell me what time on 18 October did the Minister for Justice sign the determination? Mr Wilkins: At what time on the 18th? Does anyone know? Mr T Sheehan: I don't think we have the exact time of the signature. Senator CAMERON: Can you take it on notice? Or you just don't know?

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Mr Wilkins: We can take it on notice. If we can find out the exact time—within an hour or something? Senator CAMERON: Yes. I would be happy with 'morning' or 'afternoon' or 'evening'. CHAIR: I suspect you will have to ask the minister and it will depend on him being able to recall. Mr Wilkins: Afternoon. Senator CAMERON: Okay. Thanks. That's fine. I knew someone would know. There was an article in The Sydney Morning Herald on 21 October which said a spokeswoman for Mr Keenan said the government had set up the payment so that 'it would reach those most in need most quickly'. That was on 21 October. On 28 October Mr Keenan said the situation was 'under review and the emergency declaration had been signed quickly to channel funding to those most in need'. Can you outline to me the review process that has taken place within the department on this payment for disaster recovery?

Mr Wilkins: Two things. First of all we seem to be confusing two different types of payment here. We were just talking about the demolition— Senator CAMERON: I am not interested. I have gone past that.

Mr Wilkins: So you have moved onto a different type of payment— Senator CAMERON: This is a different payment— Mr Wilkins: which is what the Attorney was talking about. Senator CAMERON: That is right. Senator Brandis: These are the Australian Government Disaster Recovery Payments. Senator CAMERON: That is right. Mr Wilkins: So you are asking about that? Senator CAMERON: Yes. Mr Wilkins: Maybe if I can get the deputy secretary, Tony Sheehan, to explain the processes involved in that. Senator CAMERON: I am asking about the processes involved in a review. Mr Wilkins: There are some restrictions on that. It is something that to some extent involves confidential advice between us and the minister, and the minister presumably discussing it with his colleagues. But up to a point we can talk to you about it.

Senator CAMERON: You have raised the issue of advice. I do not want to ask what your advice was. But did you provide advice to the minister on this issue? Mr Wilkins: Yes.

Senator CAMERON: Did Treasury provide advice? Mr Sheehan: Unaware. Mr Wilkins: I am not aware of that. Senator CAMERON: The Department of Finance? Mr Wilkins: Unaware. Senator CAMERON: So this was just an A-G advice to the minister. Did the minister act on your advice? Senator Brandis: I do not think it is as simple as that. Senator CAMERON: It is pretty simple. Senator Brandis: No, because there is a process that results in the minister making a declaration, and, as you have established, and it is not in controversy, that declaration was made by the minister applying the criteria I recited earlier. That declaration is based on the minister's judgment, but it is also presumably based on advice. You have been told that advice was provided by the Attorney-General's Department. My understanding is that the actual payments are administered not by this department but by the Department of Human Services.

Senator CAMERON: That is correct, but the determination for the payment is made by Attorney-Generals. Senator Brandis: Well, it is made by the Minister for Justice, as a matter of fact— Senator CAMERON: Justice— Senator Brandis: and it was made.

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Senator CAMERON: That is right. So I am asking about that. I am not asking about how it was paid or who paid it. I am asking about the actual payment. Do you accept, Mr Wilkins, that the payment had fewer criteria available to individuals than for the bushfires in Tasmania and Victoria?

Mr Wilkins: How do you mean? Senator CAMERON: That criteria were removed from what was paid in Tasmania and Victoria. Mr Wilkins: I will let Tony Sheehan answer that. Mr Sheehan: Each time there is an event the minister has two issues to consider. One is the event itself— declaring the event itself. The second is what criteria will be used. Broadly, in the history of AGDRP there have been the significantly impacted criteria and the moderately impacted criteria. For this event the significantly impacted criteria were declared, as you have identified, on 18 November. In some other recent events, moderately impacted criteria have also been used, and I think it is to those that you might be referring.

Senator CAMERON: So the moderately impacted, which was the $1,000 per adult and the $400 per child, based on certain criteria? Mr Sheehan: The payment is the same for anyone who receives the payment under the social security legislation.

Senator CAMERON: So it is the loss of utilities, the accessibility and being unable to leave? Mr Sheehan: We would broadly describe those as the moderately impacted criteria. Senator CAMERON: So in both the Tasmanian and the Victorian bushfires if you could not access your home or leave your home for 24 hours or if you were without utilities for a period of 48 hours the payment was made in both those bushfires? Mr Sheehan: I think that is correct. Mr Wilkins: Yes, it is. Senator CAMERON: Was this simply then a political judgment not to pay it in the Blue Mountains? Senator Brandis: I will answer that. It is not a political judgment we are speaking of at all. It is what perhaps we might call a situational judgment or an assessment of the gravity of the impact on particular potential classes of claimants. I will not waste your time by repeating the eligibility criteria for the significantly affected, but there is also the other category of moderately affected, and there are two: people who have been unable to gain access to their principal place of residence or have been stranded in their principal place of residence for at least 24 hours, or, a person's principal place of residence was without a major utility for at least 48 hours. Senator CAMERON: I thought you said you would not repeat them. Senator Brandis: These are the moderately affected criteria, and it will be obvious to you, I am sure, that although that is an impact, it is a much less severe impact than, for example, the person being seriously injured or having their principal place of residence destroyed. Senator CAMERON: I do not think there is any argument on that point. Senator Brandis: No. And it is a judgment that has to be made, based on an assessment of the situation in a given case, whether the significantly affected criterion is declared or the moderately affected criterion is declared. Somebody asked about this in the Senate last week. Senator Abetz pointed out that, on five occasions that he was able to specify to you then, the former Labor government had invoked the moderately affected criteria. The whole structure of the systems is meant to be flexible so that the most severe cases get treated appropriately and, where appropriate, the less severe cases might also be the subject of a declaration. Senator CAMERON: I think there is a clear double-standard in relation to bushfires. Senator Brandis: It all depends what damage is done. It is not the nature of the natural disaster, it is the nature of the damage. Senator CAMERON: It was not about damage. It was about accessibility and access to utilities. In the Blue Mountains many, many residents had no accessibility to their houses for at least three days. They had no accessibility to utilities for a longer period, and we were told that this was under review. I am simply asking what processes were undertaken in the department to review this when it was clear that many people went over and above the criteria by a long way? What processes were undertaken to review within the department? Mr Sheehan: The way in which we go about colleting data is first and foremost to talk to the affected state, both through our people who work on response and also on recovery. After the event we have had officers up there, and at the time the event occurred we had a response officer up there. So, we are speaking to New South

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Wales and gathering information, and that provides us with a basis to understand the nature of the event and the impacts of the event. If there is significant new information about an event then we are always encouraging the affected state to tell us. We have officers who are actually expert in the arrangements of each state who are— Senator CAMERON: Is that Barry O'Farrell again.

Senator Brandis: I think you are being political now. Senator CAMERON: Well, I am a politician. I happen to be a politician. Senator Brandis: We are talking about a natural disaster. Mr Sheehan: You asked me what the processes were for review— Senator CAMERON: No, I did not ask you that. I asked you that given the minister indicated it was under review and that the local member, Louise Markus, said it was under review and given that the Minister for Human Resources said it was under review, I am asking you—and you can take it on notice—to provide me with all details of the review processes that were undertaken within the department.

Mr Wilkins: With due respect, I think that is exactly what Mr Sheehan was trying to explain to you—the process of gathering data. Because the review process is an empirical process for a start. He was explaining to you how we get the data that will inform discussions with the minister about whether or not the criteria are satisfactory.

Senator CAMERON: I do not want your short-hand answer. I want a thorough detailed answer to all of the discussions that took place within the department, any correspondence in the department on the review and any correspondence between the department and any of those ministers or the local member on the review.

Senator Brandis: The officers will do their best to meet your question, to the extent to which they can appropriately do so without disclosing advice to the minister. But I think they have been going out of their way to be particularly helpful to you.

Senator CAMERON: That may be your view, but it is not mine. Senator SINGH: A process was started in May this year that resulted in 151 successful applicants being written to by the then Minister for Justice under the National Crime Prevention Fund. They were organisations such as PCYCs, councils, charities and the like. They were all written to advising that they were successful in the process they went through, which started in May. They have now been written to by the department to tell them that in effect they have to put everything on hold because the government is currently working through the arrangements necessary to implement its election commitments. In effect, what you have done is written to the successful applicants and told them that they will not be receiving the funding they were told they were going to receive. Obviously this is money from criminals going into resolving crime prevention, street crime and the like, which are important programs done by important community organisations, which reduces recidivism in our community, and the like. Yet you have now written to them to say that they are now part of some kind of process that the government is working through to look at its necessary arrangements to implement its election commitments. Let's have a look at those election commitments. Senator Brandis: Would you like an answer to the question or are we— Senator SINGH: I am getting to the question. Senator Brandis: I hope you are going to give me enough time to answer it as there is only three minutes left. Senator SINGH: Your election commitments highlight that you are going to redirect National Crime Prevention Funds to the coalition's Safer Streets Program, to the tune of $41 million. Are you going to honour the 151 successful applicants with the funding they are rightly due, and let them know accordingly, or are you going to put it into street cameras, which is what your fiscal budget impact statement says? Senator Brandis: The promise of which you speak was a promise made by the previous government and not by the coalition. During the election campaign, the coalition as you rightly say announced that the resources of the National Crime Prevention Fund would be redirected to a Safer Streets Program, because it was our view, and it is the view of the new government, that the Safer Streets Program was more beneficial crime prevention measure than the outlays from the National Crime Prevention Fund the previous Labor government had promised. So we were perfectly transparent about that during the election campaign. That was our policy, as you rightly say. Senator SINGH: But the 151 applicants will not be receiving the funding. Senator Brandis: If I may finish. No incoming government is bound to continue the policies of the defeated government. The promises that were made to these individuals were promises made by the former government. Senator SINGH: They were not promises. They went through a process.

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Senator Brandis: Not by the new government. Senator SINGH: It is a process that started in May, and they were awarded funding. And now you are saying you are ripping that funding out from them when they have prepared to implement these programs, programs that reduce recidivism within our community, and you are now not going to honour that. CHAIR: Do you want an answer? Senator SINGH: I am just absolutely astonished by this government. Senator Brandis: Senator Singh, you are free to be as astonished as you please. However, the new government is of the view that its program, the Safer Streets Program, is a more effective crime-fighting measure than the former government's program. Senator SINGH: And what evidence do you base that on? Senator Brandis: If I may finish. We are of the view that it is a more effective program, so we took to the election a policy that the funds from your program would be redirected to a new program, and that is what we are doing. It is a policy on which we fought and won the election. Senator SINGH: You know that funds from the National Crime Prevention Fund have to go into crime prevention. So on what evidence do you base your policy now, which is basically a street-camera policy—and we all know that putting in street cameras can be but is not necessarily— CHAIR: I think the minister has got the question, Senator Singh, and your time has run out. I will give the minister time to answer. Senator SINGH: a program which reduces recidivism. It can displace crime. What evidence do you have that that is a more effective crime prevention program than— CHAIR: The minister has the question, Senator. Senator SINGH: the plethora of programs that were provided under the previous government? CHAIR: I am sorry, Minister. I have warned Senator Singh. You will have to give the answer on notice. Senator Brandis: I can give the answer. CHAIR: We have run out of time, I'm sorry. Senator Brandis: We have run out of time because Senator Singh decided to give a political speech rather than ask a question. I can give the answer very quickly, if I may. CHAIR: Okay, do that and we will go 1 minute after 11. Senator Brandis: All right. Contrary to the assertions you make, Senator Singh, about the National Crime Prevention Fund, no funding was rewarded and no contracts were drawn up; and the announced successful applicants of whom you speak were the subject of announcements made by your party during the election campaign. So the illusion that you are trying to convey that there was some orthodox process that had been completed, and had taken the form of finalisation so that this money had actually been allocated to people, is all false. CHAIR: I am glad that you were able to answer that, Minister, because I had also been misled by the question. Senator WRIGHT: My question is in relation to program 1.3—Justice Services: Legal Aid Funding. I might just start it, to save some time. The question relates to a development within the states, but there is a strong nexus with the federal Attorney-General's Department in relation to legal assistance funding. I am in contact with a woman who was affected by a decision of Legal Aid Victoria this year that a party to a Family Court trial will not receive funding if the opposing party is not represented by a lawyer. As a result, she was cross-examined by her violent ex-partner in court. Indeed, the violence was such that contact visits had been occurring at police stations because of concerns about violence. Senior practitioners and other experts familiar with the legal assistance sector state that legal aid commissions should examine their own efficiency and business practices before making wholesale restrictions such as this. My question for the department is: has the department undertaken any work that would support state legal aid commissions through examining efficiency business practices, and whether operations can be streamlined or improved as a way of ensuring the Commonwealth's contribution to legal assistance is spent in an optimal way? Mr Duggan: I might just go back a step. The way that funding is provided by the Commonwealth to the states and territories in relation to legal assistance is by a document called the National Partnership Agreement. Effectively, what the Commonwealth does through that agreement is provide to the state government an amount

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of money, and the state government then undertakes to get certain outcomes with that money. No longer is there a direct relationship between the Commonwealth and legal aid commissions, as there once was. The decisions you refer to are decisions that are taken by the legal aid commissions in each of the states and territories—in this case it is Victoria. Victoria has made certain decisions based upon its assessment of the impact of the caseload that it is currently dealing with in relation to this issue. It has made an independent judgment that it will ration that funding to a greater extent than was the case previously.

In response to that concern there was additional funding, as you are aware, provided by the Commonwealth in the last budget, to each of the state and territory legal aid commissions, with a hope that that would to some extent reduce the need for such independent decisions to be made. However, in the end, the Legal Aid Commission in Victoria is an independent body. It makes its decisions based upon its assessment of what it can do with the funding that was provided. In this case, we were not involved directly in this decision—we were in fact told after the decision had been made. This decision is a matter for the independent Victorian Legal Aid Commission.

Senator WRIGHT: Thank you, Mr Duggan. I take you to the National Partnership Agreement on Legal Assistance Services, which states at clause 40 that it must be reviewed by 30 June 2013 with regard to the parties' progress in achieving agreed outcomes, objectives and outputs. In the May budget estimates hearing the department advised that the review may not occur to that time line and that it is likely to be finalised in about August this year. When will the report summarising the review be published?

Mr Duggan: This is a matter that is currently with the government for consideration. A draft of the report is now prepared. It was prepared just before the election campaign and a decision was not taken to release the document prior to that time. We have provided a copy of the document to the Attorney. He is currently considering the document. It is quite comprehensive and contains a range of recommendations about possible changes to the system. The Attorney is currently considering how in fact that document might be released. So the answer to your question is no, it has not been published. It is a matter for the government to consider.

Senator WRIGHT: I might ask the Attorney in a minute. I will take you to some of the other issues you raised in that, then. Has the department examined the issue of whether states have determined eligibility for legal assistance in a way that is compliant with the principles set out in the current National Partnership Agreement on Legal Assistance Services in that review?

Mr Duggan: The issue of eligibility, as I say to you, is a matter predominantly for the individual commissions to determine. That issue is to some extent dealt with in the review but of course this is at the moment only the findings of the consultant, it has not yet gone for further consultation with the states and territories and indeed the legal aid commissions. So we have not done any independent assessment.

Senator WRIGHT: There are agreed outcomes, objectives and principles and outputs in the national partnership agreement which could be subject to a compliance consideration. Mr Duggan: At least twice a year there are performance meetings that we have with the legal aid commissions where we go through the statistics they provide to us, and they provide quite comprehensive statistics to us, about what they have done in the particular reporting period, and we are regularly in contact with them. In general terms, the commissions have met the outputs that they have undertaken to do within the national partnership agreement. Where there are particular issues we have discussions with them on a regular basis, and no doubt the review will highlight other issues. For example, there are significant issues about how you count things, what you count, when you count them. Statistics and data are an ongoing issue for us in this space.

Senator WRIGHT: I am wondering if the Attorney-General is able to give us any indication of when the report summarising the review might be published. Senator Brandis: No, I am not, Senator. In due course.

Senator WRIGHT: In due course—a very legal term. You did not actually answer my question, Mr Duggan, when I asked has the department undertaken any work that would support state legal aid commissions by examining efficiency, business practices and whether operations can be streamlined as a means of assisting state legal aid commissions.

Mr Duggan: Certainly some of those issues are examined within the national partnership agreement review that we just talked about. It would be the intention of the department in the fullness of time to provide options to the minister to consider in this respect. That of course will have to wait until we have had appropriate consultations on the review and the input of states and territories, but we are hopeful that it will be a catalyst for just such the policy development that you refer to.

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Senator WRIGHT: One last quick question. Has the review of the national partnership examined whether the instrument which is developed as its successor should be more specific with regard to the actual quantum of funding that the states are required to contribute?

Mr Duggan: I think that is simply a matter that we would provide advice to government on at the time. Mr Wilkins: I think we need to be careful on becoming too prescriptive with these sort of arrangements. We do try to concentrate on the major outcomes that we would like to see delivered and not concentrate on trying to manage by remote control from Canberra the way in which people make decisions. So we need to be very careful about that, and these agreements were deliberately set in a way which is to concentrate on those outputs and outcomes and not try and second-guess every individual case. Senator WRIGHT: I appreciate that. It is not really an individual case, though, it is this systemic decision that has resulted in self-represented parties being cross-examined by partners. It is certainly not the only occasion on which that has occurred. So it is a systemic issue and I guess I put it to you to consider whether or not it is in fact related to the objectives, the outputs and the principles on which the agreement is based. But I will leave it there. Thank you. Senator SIEWERT: I want to ask some questions around native title. That is here, isn't it. The bill that was before the previous parliament, obviously, was not dealt with, so I am seeking clarification about what this government's proposed approach is with native title. Are you proposing to proceed with that bill? Senator Brandis: Senator Siewert, my recollection of the bill of which you speak is that there were aspects of it with which the then opposition had some difficulties, particularly in relation to issues such as presumptions against respondents and such matters. The cabinet has not deliberated on this particular issue, I can tell you, but I would not envisage that a bill in that form would be introduced by the new government. The new government does have a number of reforms in mind in relation to native title. Let me give you an example of one. A decision that the former Labor government made, which in my view was quite a shocking decision, was to withdraw respondent funding, which meant that applicants in native title cases were funded through the public purse and respondents, who were in need of legal assistance, were, as a result of a decision of the previous government, deprived of that respondent funding. It was not a great deal of money in the scheme of things. One decision I have made—and it was announced last week, as a matter of fact, Senator Siewert—is to restore respondent funding so that we did not have this imbalance that one side was funded out of the public purse but the other side had no access to justice through respondent funding. Senator SIEWERT: I had seen that announcement, so I am aware that you have taken that step. I am looking for your other plans for native title. I did not expect, quite frankly, that you were going to proceed with that particular bill, but there is general acknowledgement and there was broad support for many aspects of the bill. I am aware that the government has talked about other changes in the past. I would like to know what your proposals are and what the timeline is for them, as well. I appreciate that you said that you had not taken it to cabinet. Senator Brandis: We do not regard it as an urgent matter. Our view is that the bill of which we have been speaking contained so many unjust measures that it is not a bill, as you rightly point out, we would proceed with. But it is something that, during the course of next year, I will be considering. There are more urgent priorities in the Attorney-General's portfolio than this. Senator RHIANNON: I understand that the Australian Catholic Religious Against Trafficking in Humans has received money from the proceeds of crime. Has the government decided to cease funding this organisation and, if this is the case, why was that decision taken? Mr Anderson: ACRATH has a funding grant in place currently that expires on 30 June 2014. Senator RHIANNON: Have you decided not to fund them for another year? I understand they have had funding for two years to date. Mr Anderson: No decision has been made. They have existing funding in place until 30 June 2014. Senator RHIANNON: When will the decisions be made for the next round of funding? Mr Anderson: If a decision is to be made, that will be a matter for the government between now and 30 June 2014. Senator RHIANNON: Attorney-General, has a decision been made on whether ACRATH should receive funding again? Senator Brandis: No such decision has been made by me, but I am not familiar with the particular case. Whether a decision has been made within the department, I gather not.

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Mr Anderson: There has been no occasion for a decision to be made. Senator RHIANNON: Considering the lateness of the hour, could you take on notice when a decision will be made. This organisation understands that they have been defunded. Senator Brandis: It may be that no such decision has been made and that, as I think the officer, Mr Anderson, was pointing out, no occasion has yet arisen for a decision to be made. I do not think we should conflate a refusal with the fact that the occasion to make a decision has not yet arisen.

Senator RHIANNON: Does Mr Wilkins have something to share with us? Senator Brandis: No. Mr Wilkins was just pointing out to me that this is something that is a decision for the Minister for Justice rather than me, but I am happy to make the inquiry. Senator RHIANNON: Okay. If you could take that on notice, it would be appreciated.

Senator SIEWERT: Mr Anderson, could you just confirm for me how much money was recommitted to respondents on the native title? Mr Anderson: I understand it was $2.2 million.

Senator SIEWERT: Thank you very much. Senator WRIGHT: I have one more question. It is in relation to part VIIC of the crimes act relating to disclosing Commonwealth pardons, quashed convictions and spent convictions. On the 2013 review of the operation of subdivision A of division 6 of part VIIC of the crimes act 1914, I assume there is someone who knows what I am referring to. Senator Brandis: They speak of little else! Senator WRIGHT: Followed by section 85ZZGG. Does that ring a bell with anyone? Mr Anderson: Yes. Senator WRIGHT: When does the department expect to finalise that review, bearing in mind it was required to commence by 30 June this year and be completed within three months? Mr Anderson: The review has been carried out. It is with the Minister for Justice. He is required to table it within 15 sitting days after receiving it, so it should be tabled in this sitting. Senator WRIGHT: Good. Thank you for that. CHAIR: Thank you very much everyone for your advice today.

Committee adjourned at 23:02

Y

SENATE STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS AUSTRALIAN FEDERAL POLICE

Question No. 43

Senator Xenophon asked the following question at the hearing on 30 May 2013:

Senator XENOPHON: Can you advise, on notice, whether any members of parliament have been the subject of these authorisation orders? Mr Negus: I do not think we could. I mean, we do not specify real estate agents or anyone else for this process. Senator XENOPHON: You are elevating us you know, comparing us to real estate agents! Mr Negus: I hesitated because I did not want to bring too many people into the mix, but we do not categorise people by what their job is, whether they be journalists, members of parliament or police officers. Senator XENOPHON: Commissioner, come on—you know very well that members of parliament are more likely to get information about malfeasance or from a whistleblower than a real estate agent, from someone in the public service. I am not sure that Century 21 Belconnen gets too many calls from people dissatisfied with— Mr Negus: You may be surprised! But can I take that on notice? I will have a look at what I can disclose to you. Senator XENOPHON: Why can't you tell us whether any members of parliament have been the subject of these authorisations? Mr Negus: Well, I do not recall any, off the top of my head, and we are talking about five investigations of leaks in each of the last two years. I do not recall any. These things are not done without proper consideration of the requirement here, and also understanding and respecting some of the issues you have raised here; that is certainly part of what we do. I cannot recall any off the top of my head, but I will take it on notice and see whether we can supply you with any information or whether we think that is stepping too far across the line.

The answer to the honourable senator’s question is as follows:

For reasons of operational security the AFP does not disclose specific operational information to ensure integrity of its investigations, however the AFP can disclose there have been occasions where members of Parliament have been the subject to Authorisation Orders.