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Legal and Constitutional Affairs Legislation Committee
22/10/2019
Estimates
ATTORNEY-GENERAL'S PORTFOLIO

ATTORNEY-GENERAL'S PORTFOLIO

In Attendance

Senator Payne, Minister for Foreign Affairs and Minister for Women

Attorney-General's Department

Mr Chris Moraitis PSM, Secretary

Mr Iain Anderson, Deputy Secretary, Legal Services and Families Group

Ms Sarah Chidgey, Deputy Secretary, Integrity and International Group

Mr Martin Hehir, Deputy Secretary, Industrial Relations Group

Mr Michael Kingston, Australian Government Solicitor

Families and Legal System Division

Mr Cameron Gifford, First Assistant Secretary, Families and Legal System Division

Dr Albin Smrdel, Assistant Secretary, Legal System Branch

Ms Dianne Orr, Acting Assistant Secretary, Family Law Branch

Ms Alex Mathews, Assistant Secretary, Family Safety Branch

Legal Services Policy Division

Ms Tamsyn Harvey, First Assistant Secretary, Legal Services and Policy Division

Mr David Lewis, General Counsel, Office of Constitutional Law

Ms Kathleen Denley, Assistant Secretary, Native Title Unit

Ms Alana Fraser, Director, Native Title Unit

Ms Ariane Hermann, Assistant Secretary, Legal Assistance Branch

Ms Samantha Byng, Assistant Secretary, Royal Commissions Branch

Mr Michael Johnson, Assistant Secretary, Office of Legal Services Coordination Branch

Ms Susan Whitaker, Acting Assistant Secretary, Office of Legal Services Coordination

Integrity and Security Division

Mr Andrew Walter, First Assistant Secretary, Integrity and Security Division

Ms Lucinda Atkinson, Assistant Secretary, Institutional Integrity

Ms Elizabeth Brayshaw, Assistant Secretary, Security and Criminal Justice

Ms Julia Galluccio, Assistant Secretary, Integrity Law

Ms Autumn O'Keeffe, Assistant Secretary, Commonwealth Fraud Prevention Centre

Mr Christopher McDermott, Director, Commonwealth Fraud Prevention Centre

International Division

Ms Sue Robertson, First Assistant Secretary International Division

Mr Jesse Clarke, Assistant Secretary, Office of International Law

Ms Anne Sheehan, Assistant Secretary, Office of International Law

Ms Karen Moore, Assistant Secretary, International Cooperation Unit

Ms Frances Anggadi, Assistant Secretary, International Cooperation Unit

Ms Erin Wells, Assistant Secretary, International Cooperation Unit

Integri ty and International Group

Ms Rosanna Bartlett, Executive Advisor to Deputy Secretary, Integrity and International Group

Comprehensive Review of Intelligence Legislation

Ms Sarah Chidgey, Deputy Secretary, Integrity and International Group

Enabling Services Group

Ms Helen Daniels, Chief Operating Officer, Enabling Services Group

Mr Stephen Lutze, Chief Finance Officer, Corporate Services Division

Mr Stephen Andrew, Chief Information Officer, Information Division

Mr Michael Harrison, Deputy Chief Information Officer, Information Division

Mr Trevor Kennedy, Assistant Secretary, Financial Services

Ms Ashleigh Saint, Assistant Secretary, Human Resources

Ms Catherine Fitch, Assistant Secretary, Strategy and Governance

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

Ms Toni Pirani, Official Secretary

Mr Paul Cronan AM, Assistant Secretary

PORTFOLIO AGENCIES

Administrative Appeals Tribunal

Ms Sian Leathem, Registrar

Ms Sobet Haddad, Senior Reviewer, Immigration Assessment Authority

Ms Jacqueline Fredman, Executive Director, Corporate Services

Mr Chris Matthies, Executive Director, Strategy and Policy

Australian Commission for Law Enforcement Integrity

Mr Michael Griffin AM, Integrity Commissioner

Mr Craig Furry, Executive Director Secretariat

Mr Dallas Rogers, Acting Executive Director Operations

Mrs Eve Coutts, Director Corporate Services, Chief Financial Officer

Australian Law Reform Commission

The Hon. Justice Sarah Derrington, President

Mr Matthew Corrigan, General Counsel

Australian Human Rights Commission

Professor Rosalind Croucher AM, President

Ms Padma Raman PSM, Chief Executive

Ms Kate Jenkins, Sex Discrimination Commissioner

Commonwealth Director of Public Prosecutions

Ms Sarah McNaughton SC, Commonwealth Director of Public Prosecutions

Ms Andrea Pavleka, Commonwealth Solicitor for Public Prosecutions

Mr Simon Ash, Chief Corporate Officer

Commonwealth Ombudsman

Mr Michael Manthorpe PSM, Ombudsman

Ms Jaala Hinchcliffe, Deputy Ombudsman

Mr Rodney Lee Walsh, Chief Operating Officer

Mr Paul Pfitzner, Senior Assistant Ombudsman

Mr Dermot Walsh, Senior Assistant Ombudsman

Ms Emma Cotterill, Senior Assistant Ombudsman

Ms Louise Macleod, Senior Assistant Ombudsman

Ms Fiona Sawyers, Senior Assistant Ombudsman

Inspector-General of Intelligence and Security

Ms Margaret Stone AO FAAL, Inspector-General of Intelligence and Security

Mr Jake Blight, Deputy Inspector-General of Intelligence and Security

National Archives of Australia

Mr David Fricker, Director General

Mr Jason McGuire, Assistant Director-General, Corporate Services

Office of the Australian Information Commissioner

Ms Angelene Falk, Australian Information and Privacy Commissioner

Mr Andrew Solomon, Assistant Commissioner, Dispute Resolution

Committee met at 09:00

CHAIR ( Senator Stoker ): I declare open this meeting of the Senate Legal and Constitutional Affairs Legislation Committee for the supplementary budget estimates. The Senate has referred to the committee the particulars of proposed expenditure for 2019-20 for the portfolios of Home Affairs and the Attorney-General and other related documents. The committee will proceed today with its examination of the Attorney-General's portfolio. The committee has set Friday 6 December 2019 as the date by which answers to questions on notice must be returned. The committee has also decided that written questions on notice should be provided to the secretariat by 5 pm on Friday 1 November 2019.

Under standing order 26, the committee must take all evidence in public session. That includes answers to questions on notice. I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee.

The Senate by resolution in 1999 endorsed the following test of relevance of questions at estimates hearings: any questions going to the operations or financial positions of the departments and agencies which are seeking funds in the estimates are relevant questions for the purposes of estimates hearings. I remind officers that the Senate has resolved that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations from the parliament or its committees unless the parliament has expressly provided otherwise.

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

The extract read as follows—

Public interest immunity claims

That the Senate—

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

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

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

(1) If:

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

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

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

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

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

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

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

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

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

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

(13 May 2009 J.1941)

(Extract, Senate Standing Orders)

Witnesses are specifically reminded that a statement that information or a document is confidential or consists of advice to government is not a statement that meets the requirements of the 2009 order. Instead witnesses are required to provide some specific indication of the harm to the public interest that could result from the disclosure of the information or the document.

The committee has agreed to permit the media to film proceedings subject to the usual rules and in accordance with any direction from the committee or secretariat. I remind the media that this permission can be revoked at any time and filming must not occur during suspensions or after the adjournment of proceedings. If a witness objects to filming, the committee will consider that request. Copies of resolution 3, concerning the broadcasting of committee proceedings, are available from the secretariat.

I welcome Senator the Hon. Marise Payne, representing the Attorney-General today. Minister, would you like to make an opening statement?

Senator Payne: No, thank you, Madam Chair.