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Legal and Constitutional Affairs Legislation Committee
Commonwealth Director of Public Prosecutions

Commonwealth Director of Public Prosecutions


CHAIR: I welcome officers from the office of the Commonwealth Director of Public Prosecutions. Ms McNaughton, would you like to make an opening statement before we go to questions.

Ms McNaughton : Thank you, Chair; I will. The CDPP's annual report has recently been tabled. I'm very proud of the work of the office and of my staff. 2018-19 was a very busy year and, overall, a very gratifying one, as evidenced by our work set out in the annual report. The CDPP measures it's performance in a number of ways. Our three key measures include, firstly, compliance with the prosecution policy of the Commonwealth. This measure sits at the heart of what we do. It requires us to assess whether a prosecution will commence or continue. In order to proceed, there needs to be a reasonable prospect of conviction, and the prosecution must also be in the public interest. Partner agency satisfaction with CDPP services is another measure, and the third measure is prosecutions resulting in a conviction. I am very pleased to say that we are performing strongly against each of these measures.

For those senators who are new to the parliament or not familiar with the work of the CDPP, you'll see from the annual report that the CDPP's prosecution practice is quite different from state and territory prosecution agencies. It's also a highly complex and interesting practice for a number of reasons. We practice predominantly in the state and territory courts, as well as having a small but growing practice in the Federal Court. Last year, we received referrals from 62 different federal and state agencies. Of course, many of those cases are investigated not by police but, rather, by investigating officers working within the relevant agency.

The breadth of the work is significant and the subject matter is extremely interesting for our prosecutors to undertake—from terrorism to money laundering, from child exploitation to revenue fraud, from regulatory noncompliance to illicit drug importations, and from cartel conduct to breaches of directors duties. Over and above this, federal criminal law continues to change. The crimes we prosecute are not static. They change constantly, in line with new conduct being criminalised and the changing nature of law enforcement priorities. Some recent examples include our first prosecutions for frauds relating to the NDIS and family day care. Big data means that the volume of material seized by investigators and requiring analysis by prosecutors has increased significantly. We are also seeing increases in victim based crimes and the many challenges associated with this type of offence. And, of course, much of our work has an international aspect, often requiring evidence to be sought from overseas.

In relation to our transformation and innovation agenda I can say that, against this dynamic backdrop, which has a great many moving parts, you will see from the annual report that my office is engaged in a very significant digital transformation which underpins our ongoing efforts to modernise the way we undertake our work. When I joined the office as director more than three years ago, I was committed to ensuring that the CDPP became a digitally enabled workplace and that we modernised our businesses to meet the challenges of litigation in the 21st century.

The annual report sets out just how we are achieving this goal; but, as a snapshot, I would like to mention the key highlights for us in 2018-19. We've delivered a new business management system which is helping prosecutors undertake their work, enables us to more accurately allocate resources and identify emerging themes and trends, and provides improved reporting functionality. Our ICT systems have been upgraded, allowing our staff to work remotely and more flexibly—whether that be from court, home or elsewhere. We are seeing a steady increase in the number of e-briefs that agencies are submitting, and the submission of many of these e-briefs is happening through our e-briefs referrals gateway. Finally, we have brought a number of digital litigation specialists into the organisation. This team is leading our efforts to build digital capability across the CDPP, especially in relation to how we can best manage our large, complex and long-running cases. Thank you, Chair, for the opportunity to share with the committee those reflections on 2018-19.

CHAIR: Thank you very much. Can I start by asking a few questions about the processes that the CDPP engages in, because I'm not sure they are well understood. When a brief of evidence is referred to the Commonwealth DPP from a Commonwealth agency, what is the process of assessment that the CDPP goes through in determining whether to either lay charges or continue with charges that have been laid?

Ms McNaughton : When we receive a brief of evidence, we assess it in accordance with the Prosecution Policy of the Commonwealth, which is a publicly available document. We look at the evidence, we see the nature and quality of the evidence, and we work out, first of all, if there is a prima facie case. We then work out whether there is a reasonable prospect of conviction and then we work out whether in our assessment, which is a discretionary decision, it is in the public interest to prosecute.

CHAIR: Is that process engaged in in an apolitical, independent way?

Ms McNaughton : Yes, of course.

CHAIR: For some offences, in addition to the process you've just outlined, there is a requirement to get a ministerial consent. Can you explain what sort of offences those relate to and what that involves, and give some context for how that operates?

Ms McNaughton : There are two categories of consent that are required to be sought. By far the largest category are statutory requirements for consent in certain cases—for example, some foreign fighter offences and some prosecution of child exploitation offences where minors are alleged to have done the offending. They are that type of matter. Then there is another category of offences subject to a ministerial direction. That has been the subject of some discussion in recent weeks. And it's important to note that ministerial direction in relation to consent was first issued by Senator Brandis, as he then was, when he was the Attorney in 2014, and the current Attorney's ministerial direction basically keeps the same offences—the four offences that Senator Brandis's direction mentioned—and has added four further offences into that direction. That is essentially the effect of it.

CHAIR: So the source of the requirement to get consent can come from statute, or it can come from ministerial direction—effectively a policy of sorts.

Ms McNaughton : Yes.

CHAIR: Tell me this: does that consent process, whether statutory or based on a ministerial direction, allow a minister to commence a prosecution or direct that a prosecution occur if the CDPP hasn't already recommended that one be commenced?

Ms McNaughton : Thank you for your question, Chair. No, it only gets to us asking for a consent if we have gone through that process I outlined earlier. So, it has to be a prima facie case with a reasonable prospect of conviction and in our assessment in the public interest. It is only if we have made that assessment that we would then, if required by statute or by the direction, be asking for the ministerial consent.

CHAIR: Rather than continue with that—because it was very helpful; thank you—I might pass over to Senator Chandler.

Senator CHANDLER: Ms McNaughton, what difficulties would it present for the CDPP and for prosecutions if, for example, when compiling your evidence, putting together your cases, you had to consider exemptions for certain classes of citizens, like journalists? That is I guess the class of interest of the week.

Ms McNaughton : First of all, we assess a matter only if we have a brief of evidence referred to us, so we don't do the investigating, just to be clear.

Senator CHANDLER: Of course.

Ms McNaughton : It would only be within my office if we'd had a brief of evidence referred to us. And we operate—because we have the rule of law in this country—only according to legislation and prosecution policy. You ask how difficult it would be if a whole class was exempted. That would presumably have to be done by legislation—

Senator CHANDLER: Yes.

Ms McNaughton : and we would have to consider the effect of any such legislation if that were passed. Hypothetically, if it were—and that's a very difficult hypothetical situation, because there were so many potential offences, so it would depend on how some carve out was done. Would it be for a class of person for all offences for all time? Would it be for only a category of offences involving this class of persons? So, we would very much have to be into the detail, and it would be, I presume, a difficult carve out to draft, I would imagine.

Senator CHANDLER: Let's just try to think of a way to limit the hypothetical for the benefit of this line of questioning. What about if we took a particular offence—let's say section 35P(2) of the ASIO Act; are you familiar with that one? I can read it out:

A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to a special intelligence operation; and

(c) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

What if we were to say that we were to exempt journalists from committing this offence on the basis that they are just doing their job? Would that be difficult in terms of mounting a prosecution?

Ms McNaughton : I am loath to speak in a hypothetical way. It's very, very difficult. If a journalist were to be exempted just because they were a journalist, it would mean that that was an absolute rule that in no circumstances could a journalist be prosecuted. All I can indicate is that the jurisprudence of our modern society has no such absolute rule involving freedom of speech and the like, to date. For example, there are contempt of court matters, there are suppression orders. There are all sorts of issues like that, which are well-accepted restrictions on the very important, fundamentally important, freedom of expression and freedom of speech and the like. If the parliament decided to make a law, we would obviously attempt to do our job in accordance with the law, as we always do. And if parliament decided to do that, it would be a matter of policy. But I can't really give an on-the-run commentary on how that would work in practice. I would need to see the facts et cetera.

Senator CHANDLER: That's all right. Speaking in general terms, there are other areas of the law, not just in terms of the freedom of speech issues we're talking about today, where exemptions are sometimes carved out. If we were saying that we wanted to carve out journalists, is that quite a broad-ranging definition to impose? What is 'a journalist' at law?

Ms McNaughton : Again, it's a question of statutory construction of whatever law was passed. I suppose a journalist in this day and age could be regarded as a difficult matter to define, but that would be a matter for the legislature to grapple with.

Senator CHANDLER: Yes. It could be, say, a presenter on Sky News ranging through to a blogger on the internet. Is that what we could define as a journalist?

Ms McNaughton : It would be a matter for the parliament and those advising the drafters. But, yes, I can envisage difficulties in relation to the definition of a journalist.

Senator CHANDLER: Unless, of course, we were to carve out and quite expressly define what was inherently the job of a journalist and perhaps include limitations around that. Would that make it any easier?

Ms McNaughton : Again, we would have to see the legislation as it was determined. That really is a matter of policy, and it's something that I really couldn't comment further upon.

Senator CHANDLER: That's all right. Again, in general terms, it is not a straightforward exemption to make just to say that a certain class of persons, whether they're journalists, chefs, bakers or candlestick makers, are exempt from certain laws because of the definitional requirements of doing such. We live in a changing world. What is relevant today may not necessarily be relevant tomorrow, in much the same way as the example of internet bloggers that I just used. Twenty years ago, or maybe even 15 years ago, we perhaps wouldn't have considered internet bloggers to be journalists, but that might be a different interpretation within the community, if not legislatively, now.

Ms McNaughton : Yes. I presume the definition of a journalist would have to be grappled with, and also what offences would apply would have to be grappled with.

Senator PATRICK: If it helps, Chair, 'journalist' is defined in the Corporations Act for the purpose of whistleblowing, so that's an example where it's defined in statute. There's also an instrument where it's been defined by Senator Cormann in relation to free ASIC searches for journalists.

CHAIR: Thank you, Senator Patrick. Before I hand over to Senator Carr, I will ask one follow-up question. As a general proposition, is the exemption of one particular profession from the criminal law more generally consistent with the concept of equality before the law?

Ms McNaughton : I think we're getting into deep philosophical issues here.

CHAIR: I like those!

Ms McNaughton : My remit is to prosecute offences in accordance with the law. I think it's probably a matter for others better qualified than me to provide a useful answer to your question.

CHAIR: Is it something the minister would care to comment on?

Senator Payne: I was going to say that I think Ms McNaughton is underselling herself—

CHAIR: I think so too.

Senator Payne: but I understand the point she is making. I don't think it is necessarily helpful for me to canvass that in detail, given the nature of the committee's questioning process, but equality before the law is recognised as a fairly universal proposition, I would have thought.

CHAIR: Thank you, Minister. Senator Carr.

Senator KIM CARR: I was wondering if the officers could explain something to me. On 17 September, I understand, Ms McNaughton, that you wrote to the government in the Australian Capital Territory indicating that if they were to pass a law that legalised the possession and use of small amounts of cannabis then it would be open for a person in the ACT charged under section 308.1 of the Criminal Code to rely on section 313.1 of the code for the purpose of establishing a defence. Is that correct?

Ms McNaughton : That was the initial letter that I signed, yes.

Senator KIM CARR: A week later you wrote to the territory government in Canberra to say that you had changed your position and that it would not be appropriate to provide a view on the proposed legislation. Is that correct?

Ms McNaughton : That's a summary of what I said, yes.

Senator KIM CARR: Why did you change your view?

Ms McNaughton : When I signed the first letter I was not aware of a particular case that was drawn to my attention prior to the signing of the second letter. What influenced me to sign the second letter was a case which suggested that the excuse or justification may properly have to be a positive excuse or justification rather than simply the removal of criminality of actions. When I became aware of that case, it was readily apparent to me that it was more complex than when we had first assessed the issue, and I therefore wrote the second letter.

Senator KIM CARR: I see. Was that case drawn to your attention by the Attorney-General's office?

Ms McNaughton : In the course of our relationship with the Attorney-General's office, we have—sorry, not the Attorney-General's office, the Attorney-General's Department. We have regular conversations, through my officers, with officers from the Attorney-General's Department. It was in the course of one of those regular conversations that that case was drawn to our attention.

Senator KIM CARR: I see. So it was the department itself, not the minister's office?

Ms McNaughton : Correct.

Senator KIM CARR: What is the case that you're referring to?

Ms McNaughton : I'll just pull that up. It's not directly on point. It is Denlay v Commissioner of Taxation. It's not directly on the same legislation, but it was enough such that it gave us pause and caused me to send the second letter.

Senator KIM CARR: So you had no contact with the minister's office?

Ms McNaughton : In relation to this, no.

Senator KIM CARR: It was all through the department.

Ms McNaughton : Correct.

Senator KIM CARR: What was the nature of the department's view to you?

Ms McNaughton : I became aware of that case, and, on becoming aware of that case, that's when I decided that the previous view was no longer one that I held.

Senator KIM CARR: But you said it's not on point.

Ms McNaughton : It's not directly on point, but it does deal with a very similar section. It deals with the words 'justification' or 'excuse' and suggests that it has to be a positive one.

Senator KIM CARR: I see. Do you think that's consistent with your role as an independent agency within the Attorney-General's portfolio?

Ms McNaughton : Sorry, I don't quite understand your question.

Senator KIM CARR: You are there to operate independently of the Attorney-General and the political process.

Ms McNaughton : Indeed.

CHAIR: In understanding and applying the law as it is in force at any given time.

Senator KIM CARR: Do you think that changing your mind is consistent with that responsibility?

Ms McNaughton : Absolutely, yes.

Senator KIM CARR: So your interpretation of the law was affected by this notification of a change; it wasn't put to you in any political context?

Ms McNaughton : Absolutely not.

CHAIR: Senator Carr, I am conscious you've just got started, but we are at 12.30. Do you wish to kick off when we resume after lunch?

Senator KIM CARR: I think I can probably finish this matter.

CHAIR: Within five?

Senator KIM CARR: Hopefully.

CHAIR: If it can't be done within five, we'll do it after lunch.

Senator KIM CARR: I have one question. Let's see how long it takes to answer it.

Do you agree with the advice the Attorney-General gave the ACT on 20 October 2019, that the ACT's new laws would not provide a defence to Commonwealth drug possession laws?

Ms McNaughton : My view sitting here today is that I have no absolutely concluded view. I haven't seen the final version of the legislation. But, with the greatest of respect, it is clearly open—what the Attorney-General has indicated to the ACT. My job and that of my office is to assess cases when they are referred to us. I will come to a concluded view if and when a case is referred to us. I will then look at what the legislation would look like as at the date of the alleged offence which will be the subject of the brief and will come to a concluded view at that point.

Proceedings suspended from 12:31 to 13:31

CHAIR: We will now resume and continue to hear from officers of the Commonwealth Director of Public Prosecutions.

Senator McKIM: I want to start by going to a couple of matters that relate to the issue that Senator Carr was questioning you on just before lunch, Ms McNaughton, which is the change of opinion that you had in regard to the ACT's personal cannabis use laws. You made it very clear that you had not had any contact on this matter from the Attorney-General or his office, but you have said that—I'm paraphrasing you here, and please correct me if I'm paraphrasing you inaccurately—it came up in the course of discussions with the Attorney-General's office—

Ms McNaughton : The Attorney-General's Department.

Senator McKIM: I'm sorry. The Attorney-General's Department.

Ms McNaughton : Between officers of my agency and the Attorney-General's Department.

Senator McKIM: To finish that line off, Ms McNaughton: it was as a result of that interaction with the department that you became aware of the Denlay case?

Ms McNaughton : That's correct.

Senator McKIM: And, having considered that, that caused you to change your opinion?

Ms McNaughton : That's correct.

Senator McKIM: Mr Moraitis, did the department have any contact with the Attorney-General's office on this matter?

Mr Moraitis : We would have given submissions over a period of months on this matter, because it was obviously something we were discussing with the ACT, our counterparts in the justice department, and explaining our position. I imagine there would have been advice and submissions to the office and the Attorney through normal processes. On this particular question and the time lines we're alluding to now, I'd have to ask Ms Chidgey whether there was anything specific about that. If I may say, from our perspective we had a very consistent position all along on this.

Senator McKIM: The department did?

Mr Moraitis : Yes. I'd have to ask Ms Chidgey whether there was some sort of communication with the office to explain anything in particular, but my understanding was that the department had a longstanding process of consulting and discussing with the ACT government and our colleagues—who are, for the record, sometimes ex-AGD staff in Canberra, so we have a good relationship with them—explaining where we're coming from on this. That's the same way we have consultations with normal colleagues in the DPP. Unless Ms Chidgey has anything further on that.

Senator McKIM: Ms Chidgey, just before you do that, and I do apologise: Mr Moraitis, you said in that answer that the department had a consistent position. What was that position?

Mr Moraitis : I think it's been alluded to by the Attorney publicly, so I can go into that. Basically, the idea of a positive right as distinct from enabling—it centred on how the decriminalisation was defined in the act. We had discussions based on language in a bill, but I think the act only was finalised to our visibility a few weeks ago, and then we had a definitive position on where we stood, which was to confirm our position that, as a result, the ACT law did not, as it were, provide that exceptional defence for Commonwealth offences.

Senator McKIM: Ms Chidgey are you able to provide any extra information for the committee?

Ms Chidgey : The only thing I would add is that we had interactions with the Attorney's office over some period, because the Attorney had received correspondence much earlier this year about that proposed legislation when it originally came before the ACT Legislative Assembly. We had been in contact and provided some initial advice some months ago.

Senator McKIM: Perhaps either to Mr Moraitis or Ms Chidgey: how did the department become aware of the Denlay case? Was that brought to your attention by the Attorney-General's office?

Ms Chidgey : No, it wasn't.

Mr Moraitis : We have in-house expertise.

Senator McKIM: I'm sure you do. So the answer is no to that question. Ms McNaughton, obviously this is a matter of significant public and media interest. It's fair to say you changed your opinion on this matter?

Ms McNaughton : I guess. Yes.

Senator McKIM: If you wish to add anything, please do.

Ms McNaughton : It's fair.

CHAIR: Because the law on which you were basing your opinion changed?

Ms McNaughton : Because I became aware of additional legal material that I was not initially aware of.

Senator McKIM: And that was the Denlay case?

Ms McNaughton : Yes.

Senator McKIM: Do you often change your opinion on matters? Is that a regular occurrence? I ask this genuinely. Would you categorise this as quite unusual, that you gave an opinion and then, within a relatively short time frame, changed your opinion? Is that something that happens often or is it unusual?

Ms McNaughton : If I as a lawyer came into possession of additional information, I would not stick to my guns for the sake of it. I did what I felt was appropriate. I can't say whether I'd normally do it. Of course, I try to not change my opinion in this sort of context, but if it's the right thing to do that's what I do.

Senator McKIM: Thank you. I'm not offering a criticism. I think any reasonable person, if new information came to light, would certainly reserve their right to change their opinions. I don't offer a criticism of that. I'm just seeking to understand whether it's something that happens regularly or whether you'd categorise it as unusual in your experience in this role.

Ms McNaughton : It's not something that has happened often.

Senator McKIM: Ms Chidgey, you wrote to Mr Glenn, the acting director general of the ACT Justice and Community Safety Directorate, on 23 September effectively raising a question about whether the exemption of the kind that was proposed by the ACT would satisfy the requirement for the conduct to be justified or excused. That letter was just one day ahead of Ms McNaughton's second letter, the one in which she conveyed her change of opinion. When you wrote that letter, where you aware of the fact that the Commonwealth DPP was at least considering changing her opinion?

Ms Chidgey : I think we knew that the director was considering the issue, but we had had already quite a lot of interaction with Mr Glenn and the ACT directorate about the matter, and so the letter was really confirming the views we'd already expressed to them verbally.

Senator McKIM: Which is the position that Mr Moraitis just explained?

Ms Chidgey : That's correct.

Senator McKIM: I'm not a lawyer, so I'm just going to ask this as a layperson: is the position that you conveyed to Mr Glenn in that letter substantially in accordance with the revised opinion of Ms McNaughton as conveyed to Mr Glenn on the 24th?

Ms Chidgey : I might defer to the director but, as I recall it, her letter was really a retraction of the earlier letter and an indication that the matter had some additional complexities, whereas ours provided a clearer indication to the ACT of the position as we understood it.

Senator McKIM: Ms McNaughton, in your second letter—this is the letter you sent to Mr Glenn on 24 September that contained, in effect, your revised opinion—you said you've concluded it would not be appropriate to provide a view on the proposed legislation. Why do you think it would have been inappropriate for you to provide a view?

Ms McNaughton : Because, at that point, it was clear and I wanted to make it clear as quickly as I could, given what we had said earlier, that the position was more complicated. Then I decided it wasn't appropriate to provide any concluded view at that point. I simply wanted to make clear that our previous view was attended by additional complexities that I could no longer indicate was our view. Then it becomes appropriate, in my view, that we consider, finally, the meaning of the legislation if and when we are referred a brief of evidence in relation to a potential offence.

Senator McKIM: As it currently stands, you don't intend to provide a view on the legislation unless or until you have a brief on the matter.

Ms McNaughton : That's correct. What I would be doing, through my officers, is assessing the brief in accordance with the prosecution policy of the Commonwealth.

Senator McKIM: Could I ask you, then, Ms McNaughton, what changed between you providing a view on 17 September and then coming to the conclusion that it would be inappropriate for you to provide a view unless it was enlivened by a brief? What changed, not in terms of what your opinion was but just in the context of whether or not you would provide that view on the legislation?

Ms McNaughton : It appeared that it was a more complex situation and it was, potentially, a fluid situation. It wasn't something that we thought was appropriate to do.

Senator McKIM: I understand that in regard to 24 September but on 17 September you, clearly, regarded it as appropriate that you would share your view. What changed? I understand your view changed but I'm asking in the context of the provision of that view to the ACT government.

Ms McNaughton : Just on further reflection, given the complexities, it was thought the appropriate response of my office should be to wait for a brief of evidence, should one come to our office.

Senator McKIM: Ms McNaughton, you didn't have a brief in regard to any potential prosecution under this legislation on the 17th. I'm just trying to understand your thinking here. Is it fair to say that when the added complexity of this matter was drawn to your attention, via the Attorney-General's Department, it was that added layer of complexity that made you believe that it would not be appropriate for you to share your view, even though you had previously shared your view on the legislation?

Ms McNaughton : It was the added complexity provided by me learning about a case that was, although not involving an identical provision, a similar provision. It made it clear to me that it wasn't an appropriate use of our resources to provide a concluded view.

Senator McKIM: Is that because it would have taken up more of your resources, to come to a conclusion?

Ms McNaughton : It could have. And at that point we thought it is a more complicated issue than first appears, and should a brief come we should wait until that happens, to see what the legislation might look like as at that date, should a brief of evidence even come to our office.

Senator McKIM: So it's appropriate for you to share your view on a proposed legislation when it's quite a simple matter, in your mind, but when it became more complex you decided that it would no longer be appropriate for you to share your view.

Ms McNaughton : In this particular instance, that's what occurred. Should it happen again, in the future, I will take wise counsel and we will see what we will do.

Senator McKIM: And who would you seek that counsel from?

Ms McNaughton : From my colleagues.

Senator McKIM: In the DPP's office, in your office?

Ms McNaughton : Yes.

Senator KIM CARR: I have raised the issue of the independence of the DPP's office. I want to do that again in the context of the ministerial direction requiring the Commonwealth Director of Public Prosecutions to obtain the agreement of the federal Attorney-General for the prosecution of a journalist charged under the Criminal Code, sections 131.1, theft, and 132.1, receiving stolen property; and section 73A of the Defence Act 1903, unlawful giving or obtaining information as to defences. This of course is a matter that's been subject to quite substantial criticism from the Law Council.

I'd like to ask you specifically about the direction that you received on 18 September from the Attorney-General's office in relation to journalists. What's the effect of that direction, in your view?

Ms McNaughton : You said the 'direction'. Are you talking about the direction from the Attorney?

Senator KIM CARR: The Attorney-General.

Ms McNaughton : I've got one dated 19 September.

Senator KIM CARR: Okay, well, I trust it's the same one. This relates to your office in relation to journalists.

Ms McNaughton : Yes, and, as I've indicated before, there was a previous one in similar terms issued by the previous Attorney-General, Mr Brandis, on 30 October 2014, which covered four of the same sections covered by Mr Porter's direction, the current Attorney, just to put it in context.

I can indicate, too, for further context, that under our act, the DPP Act 1983, section 8 provides for directions and guidelines by the Attorney-General. It says:

(1) In the performance of the Director’s functions and in the exercise of the Director’s powers, the Director is subject to such directions or guidelines as the Attorney-General, after consultation with the Director, gives or furnishes to the Director by instrument in writing.

Then it goes on at some length as to how that is to be dealt with, what matters it may relate to and how it should be tabled in parliament and the like. So that's the context: it's provided for in the act. It's rarely used; the directions power is rarely used, and I can indicate that there were no consents under the previous direction, on 30 October 2014, that Senator Brandis issued.

As I understand it, and as I think I indicated to Senator Stoker, the Chair, before it would even get to the Attorney for his consent under this direction, my office would have made an assessment in accordance with the prosecution policy that there was a prima facie case and a reasonable prospect of conviction and that it was in the public interest. It would only be at that point that it would go to the Attorney for his consent.

Senator KIM CARR: Let me be clear, though. It's a perfectly reasonable point you make, that under the current legislative framework the minister has the power to direct. You don't see that as inconsistent with your role and your independence in terms of your current role?

Ms McNaughton : It's provided for under a law passed by this honourable parliament.

Senator KIM CARR: Yes.

Ms McNaughton : It is rarely used, so in a practical sense—

Senator KIM CARR: Can you think of occasions where it has been used? You mentioned a previous event with Senator Brandis.

Ms McNaughton : There were a number of previous directions, but as I said, there aren't many. I have them all here with me, and they're publicly available, obviously, because they've all been tabled. They concern a whole lot of different things. For example, there was one by the Hon. Daryl Williams back in 1996 as to how we should act in accordance with the general policy of the Australian parliament, including, for example, in an estimates committee such as this. So there are all sorts of different—

Senator KIM CARR: Can we have a look at that, if possible—if it's in a form that can be tabled?

Ms McNaughton : They're all publicly available.

Senator KIM CARR: That may be the case, but for convenience—

Ms McNaughton : Mine are all marked up and scribbled all over, but we can certainly provide them.

Senator KIM CARR: Thank you, if you will.

Ms McNaughton : There is no problem. Do we have all of them? We have some.

Senator KIM CARR: If I could have a look at that, that would help me understand the nature of the directions. But essentially they've been procedural questions, have they?

Ms McNaughton : There was another direction. In relation to people-smuggling prosecutions in 2012, the Hon. Nicola Roxon, who was then Attorney-General, issued a direction in terms of what prosecutions for people smuggling in certain circumstances should or shouldn't be continued. It's very detailed. I don't know whether that's a fair summary.

Senator KIM CARR: So, it's a range of matters. And we'll have a look at those when you get a chance. But the provision that was detailed to you on 19 September doesn't actually prevent the prosecution of journalists, does it?

Ms McNaughton : No, not at all.

Senator KIM CARR: It in fact requires the Attorney-General to consent to the prosecution of a journalist for a certain offence. Is that correct?

Ms McNaughton : Yes.

Senator KIM CARR: What are those offences?

Ms McNaughton : There are a number of specified offences there. They're under a number of different acts, being the Australian Security Intelligence Organisation Act, some under the Crimes Act, some under the Code and one under the Defence Act. So, they're a variety of different offences.

Senator KIM CARR: And that's standard practice that's operated?

Ms McNaughton : Sorry, I don't know what you mean by that.

Senator KIM CARR: It's consistent with practice that has occurred for some time.

Ms McNaughton : Well, there was the other direction that was enforced from October 2014, which covered four of those eight sections, and there have been an additional four sections that have been added.

Senator KIM CARR: Please explain to me the difference between the two directions, then.

Ms McNaughton : The one that was issued by Mr Brandis covered section 35P of the ASIO Act—and these are publicly available—and 15HK, 15HL and 3ZZHA of the Crimes Act. All of those offences have been picked up in the new direction that was issued. In addition, four additional ones have been added: section 70 of the Crimes Act, sections 131.1 and 132.1 of the Code and section 73A of the Defence Act.

Senator KIM CARR: The effect of this now requires the Attorney-General to personally consent to the prosecution?

Ms McNaughton : Correct—in relation to offences where we have found reasonable prospect, public interest, in relation to these offences.

Senator KIM CARR: Would it be fair to say that the Attorney-General gets the final say on whether a journalist who reports on government activity may be prosecuted for their actions in that reporting?

Ms McNaughton : Only if it involves a consideration of the offences specified in this direction.

Senator KIM CARR: Under those provisions.

Ms McNaughton : Correct.

Senator KIM CARR: But that's the effect of it, is it not?

Ms McNaughton : Yes.

CHAIR: Just a related question before we move on: I want to be very clear that the process of getting a minister's consent provides an opportunity for the minister to intervene to stop a prosecution but not an opportunity to unilaterally direct that someone be prosecuted. Is that right?

Ms McNaughton : Yes. The way Commonwealth prosecutions work is that we are the people who always do the initial assessment of the brief. And it is only if it goes through our office that it would even get there. So, the Attorney would either say, 'Yes, what you have indicated is an appropriate prosecution can go ahead' or, 'No, it should not commence.'

CHAIR: And it's always got the benefit of the Commonwealth DPP's independent judgement of the evidence available in that case.

Ms McNaughton : Yes.

CHAIR: And in a sense it provides an opportunity—say, in the case of a journalist—for their protection rather than for them to face additional or political retribution, because it acts to stop somebody.

Ms McNaughton : Well, we would never be making a political decision to prosecute.

CHAIR: I'm not suggesting that.

Ms McNaughton : We are entirely independent and apolitical in terms of how we make our decisions. So all the Attorney can do in relation to these specific offences is say, 'Yes, I consent', or, 'No, I don't consent.'

CHAIR: Correct. So that operates as an opportunity for the minister to step in to stop a prosecution proceeding against someone, but not the converse?

Ms McNaughton : Correct.

Senator KIM CARR: However, if a minister was involved in an unauthorised disclosure—directly involved—it would also be an opportunity to stop that prosecution, wouldn't it?

Ms McNaughton : Perhaps I should make clear—and it's probably that I haven't made it clear—that on the face of the notice, the direction only applies in relation to these eight specified offences, and then there is a further phrase:

… where the person is a journalist and the facts constituting the alleged offence relate to the work of the person in a professional capacity as a journalist.

Which is in identical terms to the one that Mr Brandis issued.

Senator KIM CARR: What happens if a journalist's metadata has been gathered by police without a warrant? Would that be cause for you not to prosecute?

Ms McNaughton : Each case would have to be considered in relation to its own facts. I can't say in—

Senator KIM CARR: As a matter of principle, though, if metadata is being drawn upon without warrant, as has been the case the AFP have indicated in the case of the Australian Capital Territory police on 116 occasions in 2017 alone, would that be a cause in itself for you to actually question whether or not prosecution should proceed?

Ms McNaughton : That's the sort of matter that in a vacuum I cannot answer, because I have to take into account all facts and circumstances. It would depend on a whole range of things, including the seriousness of the offence and all the other matters that are mentioned in the Prosecution Policy of the Commonwealth. It would be, no doubt, a factor which would be as part of the consideration.

Senator KIM CARR: Do you get the opportunity to examine the metadata of politicians?

Ms McNaughton : Me personally? Only if it was ever given to us in the course of the assessment of a brief of evidence. I cannot recall any such instance, and I'm sure my colleagues would correct me if they've ever had any such instance.

Senator KIM CARR: It's been put to me that the police in the Australian Capital Territory have in fact drawn, without warrant, upon metadata involving politicians.

Ms McNaughton : Police is different to the DPP.

Senator KIM CARR: I understand that, but that becomes part of the brief of evidence.

Ms McNaughton : If it does become part of the brief of evidence.

Senator KIM CARR: So if Federal Police, the AFP, have called upon evidence—

Ms McNaughton : I really couldn't say in a vacuum. There's nothing I am aware of sitting here now that I could indicate that that that has occurred.

Senator KIM CARR: Even if it would be a breach of parliamentary privilege? Would that be a consideration?

Ms McNaughton : I really can't—I have no knowledge of that ever happening.

Senator KIM CARR: But you would be concerned about the abuse of parliamentary privilege, wouldn't you, as the DPP? Or the breach of it?

Ms McNaughton : That's too broad a question for me to answer.

Senator KIM CARR: When was the last time you undertook any training on the question of parliamentary privilege?

Ms McNaughton : I don't know that I've ever had direct training in parliamentary privilege. I had initial training—limited training—in relation to estimates when I took up the position. That was in August 2016.

Senator KIM CARR: It's a matter that has been before various committees of this parliament and it's one of the considerations that we have been looking at. I can say to you that I'm a member of the Privileges Committee and it's a matter that has concerned me that so few officers from the AFP and others have had any training in the question of parliamentary privilege. I'm wondering whether or not this would be part of your duties—to examine that question of the way in which parliamentary privilege operates.

Ms McNaughton : Well, not as the way you've put it, with respect. The only reason we would be dealing with any issue in relation to parliamentary privilege is if it came up in the course of the consideration of brief of evidence. That's all I could indicate. If there were an issue, we would consider that issue along with a whole lot of other issues in relation to whatever evidence was put before us to consider.

Senator KIM CARR: Thank you.

Senator PATRICK: I presume in that circumstance where a brief were presented to you that did involve a politician's metadata you would have to consider matters of admissibility in reviewing that brief?

Ms McNaughton : Yes, presumably.

Senator PATRICK: Okay. Thank you. I have been watching on the parliamentary television and it was very helpful with the chair's opening questions. There is another circumstance or mechanism by which the Attorney can cease a prosecution. That would be by way of section 71(1) of the Judiciary Act.

Ms McNaughton : I would have to double-check that. I don't have every section of the Judiciary Act to hand.

Senator PATRICK: I will just read it to you:

(1) When any person is under commitment upon a charge of an indictable offence against the laws of the Commonwealth, the Attorney-General or such other person as the Governor-General appoints in that behalf may decline to proceed further in the prosecution, and may, if the person is in custody, by warrant under his or her hand direct the discharge of the person from custody, and he or she shall be discharged accordingly.

There is some jurisprudence on this in the Federal Court but basically the motive behind that particular provision is: 'The Attorney-General's first law has always borne the ultimate responsibility for prosecution decisions and legislation enacted. It provides a power so that the Attorney-General may discharge his ultimate responsibility to the parliament and to the people for the conduct of the prosecution process.' The reason I've gone to that is that it does add additionally to the conversation that's gone on today. In a letter to me, the Attorney has indicated to me that he is not aware of that being used. I wonder if, on notice, you could perhaps examine any instances—and obviously not necessarily in your tenure—where that power has ever been exercised. I understand it would be unusual.

Ms McNaughton : Since the instigation of the office of the DPP in the 1980s? Or between the passing of the Judiciary Act in the early 1900s and the 1980s?

Senator PATRICK: Yes. Going back, if there is any incident—I don't want an exhaustive search but if there is some indication as to whether or not that provision has ever been exercised.

Ms McNaughton : Yes. Given that the office of the DPP here and around the world is a moderately recent invention.

Senator PATRICK: The secretary is looking like he is eager to say something.

Mr Moraitis : I just wanted to add, from our perspective—not going back to 1901—but we are not aware of any recent cases involving section 71, for what it's worth.

Senator PATRICK: Thank you. I have another quick question in relation to whistleblowers. It arises from a series of questions asked of the Inspector-General of Taxation. Just to indulge you, briefly, section 15 of the IGT Act, the Inspector-General of Taxation Act, permits the IGT to use section 7—sorry, section 9—of the Ombudsman's Act which is basically a power for the production of documents, for ordering someone to produce a document. Then section 39 of the IGT Act provides a protection in respect of victimisation for anyone who is discharging their lawful duty to comply with the section 9 notice. The question was raised as to, if someone is victimised, who then is responsible for invoking the protection? This goes to, really, in some sense, who can raise a brief—noting it's a criminal offence with a six-month prison sentence—for the Director of Public Prosecutions to perhaps conduct proceedings to protect someone? Is it only the inspector-general in those circumstances? Or can a private person come to you and say: 'I've been victimised under this section of the act. I'm protected. I'd like to put a brief to you'?

Ms McNaughton : Certainly, the general practice is that an investigative agency gives a brief to the CDPP but, as you would also be aware, Senator, there is a provision under the DPP Act for me to take over private prosecutions. Of course, what that connotes is that anyone can commence a private prosecution. Because of that, technically, anyone could do so.

Senator PATRICK: If you take over a prosecution—and this goes to Senator Carr's question—are you then in a position to drop the prosecution if you think there is insufficient evidence or isn't in the public interest.

Ms McNaughton : Yes, indeed. That is provided both under the act and under the prosecution policy of the Commonwealth and we do have instances of those issues occurring—not that frequently, but I suppose reasonably regularly—where a private prosecution is commenced and we have to determine whether or not we will take it over and continue it, or take it over and not continue it.

Senator PATRICK: In the circumstances where we don't continue it, it's a bit like disallowances in this building in that, if I move a disallowance and then seek to withdraw it, there is opportunity given for other senators to take up the disallowance?

Ms McNaughton : Yes.

Senator PATRICK: In circumstances where you decided to take over and then cease prosecution, does the original applicant have the ability to step back and say, 'Well, I wish to continue'?

Ms McNaughton : The person is able to provide information to my office in order to assist our decision, but, once I've taken it over, I've taken it over.

Senator PATRICK: All right. Just going back to my whistleblower instance, I'm just trying to get a general feel for circumstances where someone feels victimised and is protected by Commonwealth law. Is it normal for you to receive a brief in relation to that? I'm not sure that a whistleblower always has the capacity to invoke the protection themselves; they don't have the wherewithal or indeed the financial means to do so. Is it normal for the Commonwealth, in circumstances where those sorts of protections exist, to invoke the protections and conduct the investigation and the referral?

Ms McNaughton : By 'the Commonwealth', who do you mean?

Senator PATRICK: An agency of the Commonwealth.

Ms McNaughton : I don't know about 'normal'; I don't think I know the answer to that.

Senator PATRICK: All right. You would be familiar with the case against Mr Collaery and Witness K. We have talked about it in the past.

Ms McNaughton : Yes.

Senator PATRICK: In relation to closed courts. I don't necessarily want to go to the details of that particular case. However, in principle, we have a desire to hold all proceedings in open court.

Ms McNaughton : Yes, indeed.

Senator PATRICK: As a result of what has happened in relation to Witness K, do we have a better understanding of the national security law and how that now works?

Ms McNaughton : It's still very much in the course of proceedings in relation to that matter. We are also keen to have as much in public as we possibly can, and it's a matter of the balancing of a number of factors.

Senator PATRICK: I am just going into the operation of the law, because I don't think this secrecy provision has been invoked very often, if at all.

Ms McNaughton : In most of the terrorist matters—maybe not most, but certainly some of the terrorist matters—that we have run, it is invoked; and, in relation to another class of matters, it's invoked. Normally, arrangements are made by way of agreement, and that's perhaps one of the—I don't really want to say much more than that—but here we have yet to reach such agreement.

Senator PATRICK: Okay. I thought the court had intervened in this particular instance. Or has that not been finalised?

Ms McNaughton : There are various things still on foot in relation to various aspects. Yes.

Senator PATRICK: Okay. That's it for me. Thank you.

CHAIR: Thank you, Senator Patrick. Senator McKim.

Senator McKIM: Ms McNaughton, apologies in advance, something has come to my attention in regards to the previous conversation we were having about the ACT matter so I will just tie that up if that's okay. Again I think I'm paraphrasing you here but would it be accurate to say that, at the moment, as we sit here, you don't have a settled view as to the matter that you covered in your two letters?

CHAIR: Senator McKim, you've canvassed this at length. I'm quite sure we've—

Senator McKIM: You don't know what I'm going to ask.

CHAIR: That question is one you've asked about four times.

Senator McKIM: No, you're wrong, chair.

CHAIR: These please move to the substance of something different.

Senator McKIM: Would it be fair to say, Ms McNaughton, that you don't have an absolutely settled view?

Ms McNaughton : I don't have a concluded view, yes.

Senator McKIM: Thank you. If a prosecution brief came to you under that legislation, would you consider the defence that the ACT Parliament has established as you decide whether or not you would prosecute?

Ms McNaughton : That's part of the regular test we do for all matters. Sorry, that wasn't quite clear enough. In the course of us working out, for example, whether there are reasonable prospects of conviction, we do look at prospective defences. Would I consider the current law? It would depend what the law looked like when and if I received a brief. So I would look at the law as it stood at the relevant time of the alleged offending.

Senator McKIM: Thank you. I understand that. But would it be fair to say that, in the consideration of whether or not there is a reasonable chance of a conviction, in normal circumstances, potential defences would be part of that consideration?

Ms McNaughton : Yes.

Senator McKIM: Thanks very much. I'll move to another topic now. I've had a look at the Prosecution Policy of the Commonwealth. This specifically goes to the matters afoot regarding Mr Collaery and Witness K, but it doesn't go to what's happening in the courts; it goes to your consideration of the public interest in forming a view on whether or not those prosecutions should be launched. It's not explicit in 2.10 of the prosecution policy—I can't see it explicitly in that section—in your consideration of whether or not the prosecution was in the public interest, what the effect is on potential whistleblowers in the future. I note that the list in 2.10 is a non-exhaustive list, so could I ask you whether you did consider the effect that the prosecution may have on people who may be considering blowing the whistle in the future.

Ms McNaughton : A very similar question was put to me on a previous occasion, and I do believe that public interest immunity has been sought and claimed over that.

Senator McKIM: I reviewed the Hansard—you and I have discussed similar matters in the past—and I don't believe that that claim was made. Public interest immunity claims were made during a previous exchange, which was in October last year, but I don't believe a public interest immunity claim was made in regard to that question at that time. It may have been made in response to questioning from another senator. I'm not sure I could understand what the public interest immunity claim might be there, Ms McNaughton. I'm simply asking whether you considered a particular matter during your assessment of whether or not you should recommend a prosecution.

Ms McNaughton : The matter is before the court, as you stated, and I certainly don't want to say anything that's going to impede a fair trial of anyone before the court. My recollection is that perhaps it wasn't in precise terms, but it was in terms which overlapped with what you are asking me now—that public interest immunity.

Senator McKIM: There was a public interest immunity claim made in response to a question I asked around your decision to seek an external counsel's advice.

Ms McNaughton : Right.

Senator McKIM: That was made on 23 October.

Ms McNaughton : I might be mistaken, in which case I apologise.

Senator McKIM: That's okay.

Ms McNaughton : But, in relation to that, I can't answer in the particular, but I can say, in the general, that, if such a factor was relevant, yes, I would have taken it into account.

Senator McKIM: Why can't you answer in the particular?

Ms McNaughton : Because it is a matter before the court and I don't want to affect any matter that's currently before a court.

Senator McKIM: This question, Ms McNaughton, goes to your decision to recommend prosecution.

Ms McNaughton : Yes, indeed, and I said, if it were relevant, I would have taken it into account. I'm not prepared to comment further.

Senator McKIM: So you're making a claim for public interest immunity?

Ms McNaughton : Yes, I am.

Senator McKIM: All right. Under the normal forms of the committee, I'm prepared to accept that on a temporary basis until the written claim is made, and then that can be assessed ultimately by the Senate if necessary. So I won't pursue that line of questioning, but I look forward to a written explanation of why you think it's in the public interest not to answer that question.

Ms McNaughton : I'm sorry, Senator.

Senator McKIM: That's okay. You can finish there. Minister?

Senator Payne: I'm just clarifying something with the director.

Senator McKIM: I believe Ms McNaughton is in a position to make a claim rather than you, Minister?

Senator Payne: Indeed. I was not discussing that. I was just clarifying whether there was an extant claim or whether this was a separate matter.

Senator McKIM: I believe it's a separate matter—

Senator Payne: I understand that to be the case.

Senator McKIM: but the record will confirm that or otherwise. You have said, quite understandably, that you don't want to prejudice matters that are afoot, and I think that's entirely reasonable. Again, I'm not a lawyer, so I do have some questions I'd like to ask you. Please, if you believe that responding would be prejudicial—unless I think it's a stretch to make that claim—I won't require you to make a public interest immunity claim if you don't wish to answer. But are you able to answer who in your office is actually dealing with the prosecution of Mr Collaery?

Ms McNaughton : There are a number of officers that have some involvement with that matter, as well as some external counsel.

Senator McKIM: Is the lead counsel from your office or external?

Ms McNaughton : External. The lead barrister is external, yes.

Senator McKIM: But you have your own officers supporting that person?

Ms McNaughton : Correct.

Senator McKIM: Are you able to say who that person is?

Ms McNaughton : I have a number of people.

Senator McKIM: Sorry, who is the lead barrister?

Ms McNaughton : I'd have to double-check. I think it's Mr Maidment QC, but I'd need to triple-check that.

Senator McKIM: Mr Maidment was not the person you sought external advice from when you were considering whether or not to prosecute, was he?

Ms McNaughton : That's correct.

Senator McKIM: It's correct that he's not?

Ms McNaughton : That's correct that it was not.

Senator McKIM: Are you able to inform the committee about whether Mr Collaery is legally aided to view the full brief of evidence against him?

Ms McNaughton : I'm not aware of that. I don't know the answer to that.

Senator McKIM: Could you take that on notice?

Ms McNaughton : If I'm in a position to assist, I certainly would assist. We will take on notice to answer as far as we are able to. We don't always know the legal aid status of someone who is a defendant.

Senator McKIM: Understood. Again, I'm happy for you to take these on notice if you like. Are you aware of any restrictions on what Mr Collaery can or cannot advise his lawyers?

Ms McNaughton : No, I'm not aware of that detail. All I know is that it involves national security, the legislation, and various arrangements in relation to that—the National Security Information (Criminal and Civil Proceedings) Act 2004.

CHAIR: Senator McKim, you are almost at—

Senator McKIM: I'm nearly done, Chair. Perhaps you could take that on notice and provide any information you are able to on that, Ms McNaughton. If you're not or unable to then you can simply put that on notice. Have you or Mr Maidment or anyone assisting Mr Maidment from your office provided a harm statement to the court? Are you aware—

Ms McNaughton : In relation to Mr Collaery?

Senator McKIM: Yes.

Ms McNaughton : I'm not aware of that, no—not in relation to Mr Collaery, because Mr Collaery, as is on the public record, has pleaded not guilty.

Senator McKIM: What about in relation to Witness K?

Ms McNaughton : I understand that that is pending.

Senator McKIM: A harm statement is pending?

Ms McNaughton : Yes, if not already provided. But it's certainly imminent.

Senator McKIM: And that's because he's pleaded guilty?

Ms McNaughton : Correct—or has indicated a plea of guilty.

Senator McKIM: Sorry, thank you—indicated a plea of guilty. Are you aware of what the cost to the Commonwealth is so far of the prosecution of Mr Collaery and dealing with the matter of Witness K?

Ms McNaughton : Cost to the Commonwealth is a broad notion. Do you mean confined to my office and those I brief, or are you talking about the cost of the Commonwealth more generally?

Senator McKIM: I think it's only fair to ask you about your office and the people you brief.

Ms McNaughton : I'm not aware of the cost. Whilst I could add up any external counsel fees, I would somehow have to work out time in relation to internal people that have spent time on it, yes.

Senator McKIM: Wouldn't you normally keep that information in the CDPP office, in terms of time that people spend on particular cases?

Ms McNaughton : Up to a point, we do. We could work it out, probably. I'll just turn around to my finance people. Yes, We'd be able to work it out.

Senator McKIM: Would you provide that cost on notice?

Ms McNaughton : Yes.

Senator McKIM: For clarity, that was in regard to Witness K and Mr Collaery, but if you could provide them separately, that would be appreciated.

Ms McNaughton : Certainly.

Senator McKIM: Thank you.

CHAIR: Can I ask a question, Mr Secretary, just before we wrap up on this subject and this session? Is the policy rationale, for having a consent in place that's required to be obtained before a prosecution that has been recommended by the Commonwealth DPP is allowed to proceed, ultimately one providing additional scrutiny to a government that intends to proceed with a particular prosecution?

Ms Chidgey : Yes. I might just add that, in terms of the direction, in some ways it aligns the position for a number of those offences with a range of other offences, where there is a statutory requirement to obtain the Attorney's consent—a range of similar offences for which that is standard practice. The direction, in a way, brings the position for a few offences on the statute books that don't have that as a statutory requirement into line with other offences. And across the statute books there'd be around 50 or more offences in Commonwealth law for which the Attorney's consent is required. It is to enable a range of matters to be taken into account. Yes, it's not an uncommon practice for the Attorney to have that final say after it's gone through an investigative agency and the DPP has made its decisions to have that final check by the Attorney-General.

Mr Moraitis : For example, almost two years ago there was a consideration of new secrecy laws, and there was an express provision put into this effect that's in the spirit of this policy position.

CHAIR: I've made a note here that, at the time, Mr Dreyfus, the shadow Attorney-General, said in the context of that bill and the requirement being put in there:

I see that as an additional safeguard, and it’s something that’s been present in Australian criminal law. It’s been present in relation to the sabotage offences for many decades, it’s something that’s been present in relation to espionage offences for many decades.

A little bit later on he said:

That exposes the Attorney-General and the government to scrutiny. It makes the government accountable. Because we are here talking about something that is at the intersection between national security and our political processes of free debate in Australia, which has to be protected

I found that interesting.

Thank you. I appreciate very much the evidence that has been put forward by officers for the Commonwealth Director of Public Prosecutions today. You are excused, and we will move on to the next session please. I call to the table officers of the Australian Human Rights Commission.