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Legal and Constitutional Affairs Legislation Committee
Attorney-General's Department

Attorney-General's Department


CHAIR: Would you like to make an opening statement for this section?

Mr Moraitis : Actually, I would like to make an opening statement, would you believe!

Senator Payne: You're really stretching the friendship!

CHAIR: That's okay. I'll give you the same advice I gave Senator McKim: brief and focused!

Mr Moraitis : The reason I do so is because the committee may not be aware there was a recent machinery of government change involving the Attorney-General's Department. This is an attempt to provide you with a short overview of what that all means and how we're going to operate with this committee and other committees, given our new responsibilities. I just want to outline some practical initiatives we've also undertaken to achieve that machinery of government change to ensure that the organisation is able to provide advice to the Attorney and to the Attorney in his role as Minister for Industrial Relations.

The Administrative Arrangement Orders were signed on 29 May this year, and they affected the transfer responsibility for industrial relations functions from the Employment portfolio to the Attorney-General's portfolio. As a result of that there was a transfer of finances and staff, and these were all settled within the time frame set by government to implement these changes. The date of effect of this transfer was 25 July this year, and the full-year ASL average staffing level transfer was 325.2 FTE, including four ASL from the service delivery office of Finance department. The full-year departmental funding transfer was $62.6 million. Administrative program funding was also transferred.

The funding and staffing of the industrial relations functions will form a separate outcome within the departments for the portfolio additional estimates statements. In addition, seven agencies have been transferred to the portfolio, and they will be included in the additional estimates statements. In addition to the work that's undertaken within the department and with which you are already familiar I hope, this change resolves in new transfer responsibilities for industrial relations policy program and legal initiatives and work, health and safety to our department. This includes, for example, matters such as work health and safety policy; industry engagement; international labour, including the International Labour Organization, the ILO; wages policy and minimum standards; workers' compensation; migrant workers; and industrial relations programs, including the Fair Entitlements Guarantee, the FEG. I don't intend to speak further on these areas of responsibility, as they fall within the purview of the Education and Employment Legislation Committee, which this department will appear before tomorrow. However, I think it's useful to be aware of the scope of the policy program and legal initiatives for which this department now has responsibility.

When the announcement was made about the machinery-of-government changes, obviously we did not have much involvement with those matters. We've generally fully appreciated how the subject matter would, in fact, complement the existing work of our department. There are strong similarities in the type of work performed by the AG's industrial relations portfolios, whether it be focusing on policy, programs and legal matters; the contested nature of some of these initiatives; and the broad consultation and range of stakeholders, including from states, territories unions and industry bodies through to citizen of the direct interested in the effect of government policies and services on their lives. We, as a department, look forward to the opportunity of becoming more involved in this important subject matter—I do, personally, having been reappointed as Secretary and having helped develop and drive some positive policy outcomes for the department, for the Attorney, in his role as the Attorney-General and as Minister for Industrial Relations, and for the government.

Obviously, in the process of machinery-of-government transition and changes, getting the people and culture of the organisation right is critical to supporting the government in a consistently-high and professional standard. We're well aware this can be unsettling for many people, and we've taken the effort to ensure that the changes can meet some of these challenges so they can benefit from the perspectives that the industrial relations group has undertaken to join with us.

From the very start, we've made it clear we want to facilitate a smooth and effective transfer of employees to the department and foster a positive culture amongst us. I've met with the staff at the beginning of the process. We've had regular, if not weekly, communications through emails. My chief operating officer provided employees with regular updates on other practical matters. We organised corporate information sessions for all staff. We even set up a kiosk for three weeks over at the department of industrial relations to answer all the questions that they had on how we work, issuing credit cards and getting security clearances done, to ensure that the transition is as positive as possible. We had meet-and-greet sessions for all new staff so that they got to know one another, particularly the lawyers from the two portfolios. It's always a useful opportunity for lawyers when they first meet.

I, of course, met with all portfolio agencies in August. We intend to replicate that forum in early December. We think this has gone a bit of the way to ensuring we can forge integrative, cohesive and functioning organisations. There's a lot of work to be done still, particularly having all staff done in a single building and getting IT right, as always, but I think there's a solid foundation at this stage to build a strong portfolio to support the Attorney, both in his role as First Law Officer but also in his role as Minister for Industrial Relations. That was a bit of a speed read, but I've done it. Thank you.

Senator KIM CARR: You said 'the relations with this committee'. Are you anticipating that the industrial relations division will appear before this committee?

Mr Moraitis : No.

Senator KIM CARR: So you said you'll appear tomorrow at—

Mr Moraitis : I'll be appearing at the Education and Employment Legislation Committee.

Senator KIM CARR: Do you expect that, in the future, this division will appear here?

Mr Moraitis : My understanding is it's up to the parliament. We understand that through the machinery-of-government process our two committees were going to be maintained. I've arranged to be available for both committees, as I have today and tomorrow. I will be appearing tomorrow afternoon in front of the employment—

Senator PATRICK: The Senate passed a resolution that, even though it's within the Attorney-General's Department, the industrial relations section would appear before the education and employment committee.

Senator KIM CARR: All right. No worries. There are a series of matters that I would have normally pursued with you following the discussion with a number of agencies, but given the hour, I'll have to put a lot of that material on notice. So can I perhaps truncate my questions. It is our intention to keep to the agreement we have, Chair.

CHAIR: You're an honourable soul.

Senator KIM CARR: We'll do our best. Can I turn to this question of whistleblower protections and the Moss report?

Mr Moraitis : Yes.

Senator KIM CARR: You'd obviously be familiar with statutory independent review. That review was completed some time ago. In fact, I'm advised it was back in July 2016. That's correct, isn't it?

Mr Moraitis : That's correct.

Senator KIM CARR: So what's happened to that?

Mr Moraitis : We've provided advice to government and it's under consideration by government.

Senator KIM CARR: It has obviously been considered for some time.

Mr Moraitis : Yes, that's correct.

Senator KIM CARR: Minister, can you tell me why the government has not responded?

Senator Payne: I don't have any advice on that, Senator, but I'm happy to take it on notice for you, of course.

Senator KIM CARR: It has been three years.

Ms Chidgey : At the moment there are inquiries into press freedom in which whistleblower protections have been raised. The government will consider that alongside the Moss review recommendations.

Senator KIM CARR: Consideration of press freedoms has come along fairly late, hasn't it? They've had three years to consider this report. It hardly explains why there has been a delay of this length. Are you able to cast any light on that?

Ms Chidgey : I've got nothing to add.

Senator Payne: I will follow that up, Senator Carr.

Senator KIM CARR: Thank you. Minister, while you're there can you get some advice as to whether or not the government actually takes whistleblowing seriously?

Senator Payne: I can actually answer that. Of course I can. Yes, we do take whistleblowing seriously.

Senator KIM CARR: The review report has been there since 2016. That suggests to me that the government is not taking it seriously. It has taken this long and is yet to reply. We're now told that it might be tied up with some other inquiry.

Senator Payne: As I said, Senator, I will get some advice on that for you.

Senator KIM CARR: Perhaps you can remind me of the recommendations.

Mr Moraitis : There are about 30 recommendations.

Ms Chidgey : There are 33 recommendations that go to the practical operation of the act and in particular clarifying the extent to which employment matters should be dealt with through the public interest disclosure scheme.

Senator KIM CARR: I'm told that the first recommendation was that the act be reviewed every three to five years. It has taken that long to even get a reply to the recommendations made in the last review. It does raise the question of how serious the government's response is.

Mr Moraitis : It would be fair to say that that's correct, but it's also fair to say that the act is quite complex. It has been a while since I've read the recommendations—

Senator KIM CARR: No doubt that's true.

Mr Moraitis : so I can't recall the details.

Senator KIM CARR: But you have a deputy secretary there who can remind us. How many submissions were there?

Mr Moraitis : I can't recall.

Senator KIM CARR: Do you have that on your brief?

Ms Chidgey : Submissions to what, sorry?

Senator KIM CARR: To the Moss review.

Ms Chidgey : No, I don't have that.

Senator KIM CARR: The Commonwealth agencies spend quite a lot of time and resources preparing submissions to the statutory reviews. If the outcomes of those statutory reviews are then ignored, it could be argued that the Commonwealth is wasting resources. I wonder what Mr Moss would think of it.

Mr Moraitis : We wouldn't agree with that. We as a department have been examining this and have put advice to government about this. It's a matter for government to respond.

Ms Chidgey : My colleague Ms Galluccio has the number of submissions made to the review.

Ms Galluccio : I understand that 46 submissions were received.

Senator KIM CARR: They were across Commonwealth agencies, were they not?

Ms Galluccio : Actually in the review there's a list of the 46.

Senator KIM CARR: That's good, so you can help me here then, given that you have them in front of you. There were Commonwealth agencies that made submissions to this review.

Ms Galluccio : That's right.

Senator KIM CARR: And it's fair to say that the review has been ignored.

Ms Chidgey : No, that's not fair to say, Senator. The government is actively considering it.

Senator KIM CARR: It's just that in June this year the Attorney-General said that he had an intention to overhaul public sector whistleblower protection to make it simpler and more accessible. What exactly did he have in mind, given he has had this review for three years?

Ms Chidgey : That's a matter for the Attorney and the government to make final decisions on.

Senator KIM CARR: Are you working on legislation?

Ms Chidgey : There has been work done on potential amendments.

Senator KIM CARR: So the department does have some plans then?

Ms Chidgey : It's a matter for the Attorney and the government to make decisions.

Senator KIM CARR: I understand that it's a matter for them, but if you're working on proposed amendments you must have some grasp of what he's thinking.

Ms Chidgey : We have considered the Moss recommendations and have obviously provided advice to the Attorney.

Senator KIM CARR: When will legislation be ready for introduction to the parliament?

Ms Chidgey : It's a matter for the Attorney to decide.

Senator KIM CARR: We've got two press freedom inquiries running at the moment in the parliament. There's the intelligence and security committee and the Environment and Communications References Committee. Did the department make an independent submission to those inquiries?

Mr Moraitis : We made a submission to the PJCIS inquiry. I think it was a joint submission with the Department of Home Affairs—

Senator KIM CARR: A joint submission, that's what I understand. It's joint with Home Affairs?

Mr Moraitis : Yes.

Senator KIM CARR: Can you please explain to me what your thinking was in making a joint submission with Home Affairs, the well-known bastions of whistleblower protections?

Senator PATRICK: And press freedom.

Senator KIM CARR: I haven't even started on that, but I'm just wondering—

Mr Moraitis : We just thought it would be useful to have a joint submission that outlines all the issues from various perspectives of the two portfolios. There's an overlap, but there are also differences. We're comfortable with our views being reflected in that paper. We also followed up with a supplementary submission, which was a departmental submission—

Senator KIM CARR: So it was independent. It was your own submission, was it?

Mr Moraitis : Our joint submission was also independent. The suggestion that it wasn't independent, I don't accept.

Senator KIM CARR: Well I'm just wondering, it was on the—

Mr Moraitis : There are times when agencies actually cooperate with each other and try to achieve—

Senator KIM CARR: I've heard this.

Mr Moraitis : We also followed up with a second submission, which responded to some queries from the PJCIS and the department provided—

Senator KIM CARR: Was that a joint submission as well?

Mr Moraitis : No, it was a separate submission, as I said.

Senator KIM CARR: From AGD—

Mr Moraitis : The Attorney-General's Department, yes.

Senator KIM CARR: Who suggested that the original submission be a joint submission?

Ms Chidgey : The two departments together decided that that would be appropriate.

Senator KIM CARR: Spontaneously?

Ms Chidgey : And I think we did a follow-up one together, because many of the issues that'd been raised by those who are interested in the inquiries cut across the two portfolios and departmental responsibilities.

Senator KIM CARR: I see.

Ms Chidgey : Indeed, many of the questions on notice that the Parliamentary Joint Committee on Intelligence and Security asked to Home Affairs, there were quite a number of those that they transferred to us, I suppose, as an example of the fact that many of the issues cross the two departments.

Senator KIM CARR: Okay. It's as though you spontaneously reached this conclusion, did you?

Ms Chidgey : Yes, we did.

Mr Moraitis : I don't know about 'spontaneously', but after consideration.

Senator KIM CARR: In terms of the religious discrimination—the two inquiries—you've heard the conversation we had this morning with the ALRC's review and that matter being put back. What's the role of the department in the development of the Religious Discrimination Bill?

Mr Moraitis : We work with the Office of Parliamentary Counsel in preparing the draft bill in consultation with the Attorney. I think it'd be fair to say that Ms Chidgey's team has been in pretty close consultation, working and advising the Attorney on the bill and its various permutations, and reflecting consultations that he's had with many stakeholders over the last few months. We continue to provide advice to the Attorney, to assist him.

Senator KIM CARR: When will we see a finalised bill?

Ms Chidgey : That's a matter for the Attorney, but he's indicated that he expects to introduce legislation before the end of the year.

Senator KIM CARR: End of this year?

Ms Chidgey : That's correct.

Senator KIM CARR: How many weeks have we got? Three weeks, have we not? The Senate-only sitting week plus two? Can you give me a date, when we'll see it?

Ms Chidgey : No, I've already given you the advice on that. I don't have a particular date.

Mr Moraitis : We can't give you a date.

Senator KIM CARR: You don't have a date. But the end of the parliamentary year?

CHAIR: Senator Carr, I distinctly remember you canvassing these matters with these very same witnesses earlier in the day.

Senator KIM CARR: They were not the same witnesses, Madam Chair. We actually—

CHAIR: If I'm wrong about that, then I'll be a little more accommodating. Who were you asking it to beforehand, if not to these ones?

Senator KIM CARR: There was a question about the reports that were due in from the agency, and that was the date at which they were suggesting—that's why I suggested to you it was actually coming next year, at the end of the parliamentary session. We've just been told that the new legislation will come this year. They're two separate matters and two different, separate sets of officers.

CHAIR: We'll agree to disagree, but I'll give you a little bit of latitude.

Senator KIM CARR: I don't think you need to, because what I've said is correct. Can the department advise whether elder finance abuse is on the agenda for the next meeting of the attorney-generals?

Mr Moraitis : Yes. On elder abuse and the working groups there are several agenda items on the next meeting of the attorneys-general on 29 November in Adelaide. In fact, we had consultations with state and territory counterparts last Tuesday to go through all those items for the next meeting. I can confirm that.

Senator KIM CARR: What's the department doing on that matter?

Mr Moraitis : Quite a bit. I'll ask Mr Anderson and Ms Mathews to outline the work that we're doing in protecting the rights of elder Australians.

Ms Ma thews : There is quite a program of work underway under the National Plan to Respond to the Abuse of Older Australians. In addition to that, the Attorney has also this year launched a number of initiatives such as 1800 ELDERHelp and over $18 million investment in front-line services. In relation to enduring power of attorney, that is matter that is before the Council of Attorneys-General, and the Commonwealth Attorney-General has indicated that he will be bringing a detailed proposal back to the November meeting.

Senator KIM CARR: There's a campaign being run by the Australian Women's Weekly and the Australian Banking Association. I'm sure you'd be aware of that.

Ms Ma thews : Yes.

Senator KIM CARR: The key demand of those organisations is the establishment of Australian power-of-attorney register to check to see if power-of-attorney documents are legitimate. Does the department support that proposal?

Ms Ma thews : It is a proposal that's before the Council of Attorneys-General. We did receive some seed funding to develop a proof of concept, and that work is underway. Whether or not the Council of Attorneys-General supports the development of a national register would have to be considered at the November meeting.

Senator KIM CARR: Is the department supporting the call for consistent laws to stop financial abuse of vulnerable older Australians?

Ms Ma thews : Again, that's something to be considered by the Council of Attorneys-General in November.

Senator KIM CARR: What about the issue of the establishment of a place to make it easier for bank staff and others to report suspected abuse? If you do support such a measure, if that matter is under consideration, what actual specific details are being considered?

Ms Ma thews : Again, all I can say is that that is to be considered at the November meeting.

Senator KIM CARR: Could I turn to the issue of the Personal Property Securities Act. The Personal Property Securities Act is obviously of interest to insolvency practitioners. It's also of interest to Australian businesses who have to register security interests on the Personal Properties Securities Register. Is that correct?

Mr Anderson : I'm not sure I understand the question.

Senator KIM CARR: You'd be familiar with the Personal Property Securities Act?

Mr Anderson : Yes.

Senator KIM CARR: As I understand it, it's mostly of interest to insolvency practitioners, but it's also of interest to businesses that have to register security interests on the Personal Property Securities Register. Is that correct?

Mr Anderson : When the Act was passed, it was really a piece of micro-economic reform because it brought together 70 different acts that dealt with the securitisation of a range of interests and made it much more readily accessible. So it makes it easier for people to securitise a much wider range of interests.

Senator KIM CARR: The Whittaker report was tabled in parliament on 18 March 2015. You may not have a brief on that, but is that your memory of the matter?

Mr Anderson : I believe that's correct. Mr Whittaker did a very, very exhaustive review. He made 394 recommendations.

Senator KIM CARR: Your memory is very good.

Mr Anderson : It has been taking a while to work through it.

Senator KIM CARR: So you're working through those?

Mr Anderson : We are addressing that.

Senator KIM CARR: That's 4½ years to work through them—is that what you're telling me?

Mr Anderson : We are progressing work on that.

Senator KIM CARR: No formal response from government?

Dr Smrdel : There hasn't been a formal government response yet to the Whittaker review. As Mr Anderson pointed out, it was a rather compendious review, with 394 recommendations, and it's a very complex subject matter as well. To assist in terms of the government being able to progress it, there was some additional funding provided in the 2019 small business package which gave the department extra resourcing to be able to progress the Whittaker review, which is now in train.

Senator KIM CARR: I won't tax you with the obvious point that it does take a long time to get a response again, as another example. You'll tell me it's obviously a complex matter, but 4½ years! Are you able to provide the committee—and take this on notice—with what progress you've made on each of the 394 recommendations from that review, given that you've had 4½ years to work on it?

Dr Smrdel : It's still an issue for government as to whether there will be a formal government response to the Whittaker review. Currently the plan is to release an exposure draft in response to the recommendations of the Whittaker review, which is in train. We would expect it's a decision for government, but we would expect an exposure draft to go out early next year.

Senator KIM CARR: So you can't provide me with a progress report on those recommendations?

Dr Smrdel : It will be a decision for the Attorney and the government in terms of whether there will be a formal government response. But the focus of the work currently has been in terms of working through the report in implementing that through legislation. Whether there'll be a separate government response to the individual recommendations will be a matter for the Attorney and government.

Senator KIM CARR: Thank you. Madam Chair, that concludes my questions in general.

CHAIR: Are there any further questions in relation to corporate and general matters?

Senator WATERS: I've got some questions about the Lobbying Code of Conduct and also about the unescorted security access to the building. I might start with the second one first.

Mr Moraitis : Which building?

Senator WATERS: The orange passes, as they're colloquially called—the unaccompanied passes to this building—the parliament.

Mr Moraitis : That's the Department of Parliamentary Services.

Senator WATERS: I asked them. I have a question that I believe is for you. My question to them, which they weren't able to answer, was, if there was a change to—currently that list isn't public. No-one knows who's on it. My question was, why? They didn't really answer. My question was, who would change that rule if the government was so minded to change it? They said it would probably be the AG's. So I'm interested in if that's correct.

Mr Moraitis : If that's the requirement, we're not aware of this. We're in charge in the protection of security policy framework, but we're not, I think, responsible—it's never come across my desk, ever.

Senator KIM CARR: He's not responsible for the parliament.

Senator WATERS: Which agency do you think would be responsible for implementing any such change, if you can speculate?

Mr Moraitis : If you ask me, I'd say it's the Department of Parliamentary Services.

Senator WATERS: I'll go to qons.

Mr Moraitis : I'm happy to follow up with them and find out what exactly the situation is.

Senator KIM CARR: Ask the President.

Senator WATERS: I did. He wasn't terribly helpful. We've been here all week and we haven't got many answers yet. I'll move on to the lobbying code, which I understand you are responsible for. Has that process of transitioning over, so you folk now have responsibility for the lobbying code, been completed now? How long did it take?

Mr Moraitis : As you'll recall, that transferred the week before the May election. The last time we spoke—

Senator WATERS: I was a little bit busy then. I didn't know that's when it happened.

Mr Moraitis : It happened two or three days before the election.

Senator WATERS: How long did the transfer take? Was it six or eight months?

Mr Moraitis : Not that long, I think. I could be corrected. Something like six months.

Senator WATERS: What are the staffing arrangements, now that it is in place?

Mr Moraitis : We had some transfer of staff, a very small number, but I don't know exactly how Ms Atkinson's branch is handling that. She handles quite a few other things, such as the Foreign Influence Transparency Scheme, so I assume they find ways to have synergies of staff.

Senator WATERS: In February I was told there were two. I am keen to know whether there are still two folk administering the lobbying register.

Ms Atkinson : It depends. As you might be aware, the lobbying code has several mandatory update periods during the year. We have been through our first one of those since the code came across to AGD. I think it is fair to say that during the peak time we have moved from other projects onto assisting with that process. From time to time we will continue to do that, but for the most part it's probably between one and two staff.

Senator WATERS: When you have those, I think they are six-monthly updates—I will ask you about the technical difficulties that were experienced this time around—how many extra staff did you add on to deal with the twice-yearly updates?

Ms Atkinson : As you have alluded to, we had some technical difficulties, so when the code transferred across to AGD we also inherited a new IT system that had been developed by the Department of Prime Minister and Cabinet. When that was deployed into our environment, there were some issues with how the system operates in the AGD environment. As a result the update period was much more resource intensive than had originally been hoped. Probably we had up to four staff at any one time within my area working on that. But we also had resources from within our information division, so between 1.5 and 2 staff at any one from information division working on the technical side.

Senator WATERS: How many of those basically six people would have been required if there had not been the technical difficulties?

Ms Atkinson : I would say probably more like two or three within my team, but it is quite difficult to say, given that was our first experience of that process.

Senator WATERS: Is that problem now fixed?

Ms Atkinson : The issues persist. There are a range of technical issues which the system is demonstrating to us. We have got a business analyst who is working through those issues and we are obviously working quite closely with our clients and stakeholders as issues are brought to our attention to remedy them as quickly as we can.

Senator WATERS: What has been the practical impact of those technical difficulties in terms of the ability of people to comply with the code, if the updates aren't showing?

Ms Atkinson : There have been some cases where, for example, some of the data that was brought across from PM&C into our system has wrongly copied across, so we have had to manually update the data. There have been some issues where the portal through which users enter their data has not been linking to the public register, or when my staff have been interacting with the data, for example, to approve and make changes to people's records, that has not been showing on the public register. As soon as we are made aware of those issues we have been making sure that we do what we can to manually fix those data issues. In the cases where we have not been able to do that in a really immediate fashion, my staff have been providing certification by email, which lobbyists can then take as proof that they have complied with their obligations.

Senator WATERS: With that process, I have two points on that. Firstly, the certification by email: has that been at the behest of the particular lobbyists?

Ms Atkinson : Yes. When the lobbyists have experienced this difficulty and we've been unable to fix it manually, then we have provided them with an email to say—

Senator WATERS: Has it been clear to those lobbyists that their update, for example, has not been synced with the register? How has the error been detected and by whom?

Ms Atkinson : In some cases, they have been able to tell because when they've logged on to their own profile they haven't seen what they had expected and therefore they've checked the public register and come to tell us. In other cases, I understand, where they have tried to make meetings with government representatives, those representatives have looked at the lobbyists register and identified that they're not on the register, and that's how they've become aware of the issue.

Senator WATERS: You said: when the errors had been drawn to your attention—was there an internal checking process where you proactively look for errors before waiting for someone else to point them out?

Ms Atkinson : Yes, absolutely. As we've gone through the update process—and you'll appreciate there's a very large number of individuals on the register.

Senator WATERS: There is a lot of lobbying that goes on in this building, it's true.

Ms Atkinson : As my team have been processing those updates, they have also been manually checking, once they've approved the update, that it is showing on the public register. Unfortunately, then, because of some of the technical issues, if the lobbyist has, for example, logged on after that update has been published, in some cases that has caused a break in the data exchange which has then led to the public register becoming incorrect in a later fashion.

Senator WATERS: This sounds like a total debacle. It doesn't seem like it's been a very good transfer. One wonders what information's been lost in the whole process of moving it over. I know it was a part of machinery-of-government changes but not only have a lot of resources been dedicated to mopping up an issue that's, as you say, still not quite fixed, but the lack of transparency of that information during that period is pretty unacceptable. What's going to be done to make sure that these problems are ironed out and transparency is restored?

Ms Chidgey : We would absolutely agree that the situation hasn't been satisfactory. That business analyst review is to look at the options to get the system issues fixed as soon as possible and whether there are some adjustments we can make to the system as it currently stands or whether we need to do something more significant. We're working to do that as fast as possible. As Ms Atkinson said, we're doing everything we can to provide assistance and fix issues manually in the meantime.

Senator WATERS: When I asked in February about this process of the A-Gs now taking over the administration of the code itself and the register, there was reference to some policy functions that might have also come over. I asked at the time whether there were any policy changes proposed that the department might have started working on. The answer at the time from Mr Walter was, 'Well, we don't really know yet, we'll see.' I'll ask again: is there any proposal to change the parameters of the lobbyists code?

Ms Chidgey : We're giving consideration to that, but no decisions have been made as yet.

Senator WATERS: What sort of information sources are you looking at in order to form a judgement on the possible changes to the code?

Ms Chidgey : Obviously, particularly as a priority, we're considering the ANAO recommendation.

Senator WATERS: Can you remind me of their relevant recommendations? It's been a long day.

Ms Atkinson : Sure. This was a review when PM&C were the owners of the code. The ANAO recommended that:

The Department of the Prime Minister and Cabinet review the appropriateness of the current arrangements and Code requirements in supporting the achievement of the objectives established for the Code. To better support the ongoing regulation of lobbyists, PM&C should:

a. implement a strategy to raise lobbyists' and Government representatives' awareness of the Code and their responsibilities;

b. assess risks to compliance with the Code and provide advice on the ongoing sufficiency of the current compliance management framework; and

c. develop a set of performance measures and establish an evaluation framework to inform stakeholders about the extent to which outcomes and broader policy objectives are being achieved.

Senator WATERS: Are all of those recommendations being considered?

Ms Chidgey : Yes, we're considering the ANAO's report in general.

Senator WATERS: Is there a time frame on when the department's investigations will conclude and, presumably, you'll then brief the minister on the options?

Ms Chidgey : No.

Senator WATERS: Is that a body of work that you've undertaken of your own volition or has the minister asked for it?

Ms Chidgey : We're undertaking it. We haven't had a specific formal request.

Senator WATERS: Hence the lack of a specific time frame to finish it off?

Ms Chidgey : Yes, and it would be fair to say, too, we've obviously been focused on the transition and transfer and updates—

Senator WATERS: Yes, the technical difficulties.

Mr Moraitis : You will appreciate, with the transition, both the policy response and the technical stuff was transferred to us in May and we're working through the technical stuff as a priority. We're well aware of the policy position put out in that report, and we'll get to that, obviously, once we've fixed the system as is.

Senator WATERS: Did one of the ANAO recommendations go to how to deal with in-house lobbyists? My understanding of the code of conduct is that it only pertains to third-party lobbyist companies that are employed by companies who want the lobbying done but it doesn't apply to in-house lobbyists in companies themselves. That seems to me to be ridiculous, and I don't understand the policy basis for it and I think it really needs to be fixed. Is that being considered?

Ms Atkinson : The ANAO's recommendation only goes to the code in its current form, which is in relation to third-party lobbyists.

Senator WATERS: Is the department considering expanding the code to include those in-house lobbyists?

Ms Chidgey : We're not giving that current active consideration, but that's one thing we're obviously aware of, so we will in due course.

Senator WATERS: What would it take for to you give active consideration to that proposal?

Ms Chidgey : We'll work our way through the ANAO report first and the transition and then we'll have a look at any broader issues.

Senator WATERS: How does a person make a complaint under the Lobbying Code of Conduct?

Ms Atkinson : A person who would like to make a complaint can make that to the secretary or, via delegation, to me or my team. All of the contact details are available on our website about how to make a complaint.

Senator WATERS: Do they need to have any special standing or can any person make a complaint?

Ms Atkinson : No, any person can make a complaint.

Senator WATERS: How many complaints have been made since the operation of the code?

Ms Atkinson : I would have to take the question on notice. I can tell you that, since the code was transferred to us, we haven't received any complaints.

Senator WATERS: Lastly, how many penalties for how many breaches have been imposed? And, if there are none under your administration, could you provide on notice the detail for the previous period?

Ms Atkinson : Yes. I think, though, it might be worth pointing out that we have answered a similar question in the House of Reps, so I will make sure that our evidence is consistent with that.

Senator WATERS: I asked PM&C yesterday whether or not there was any consideration being given to requiring ministers' diaries to be disclosed like they are required to be in Queensland and New South Wales. Is that something that would fit within your policy purview and is that being considered?

Ms Chidgey : Broadly, in the sense that some of those issues arise under freedom of information legislation. And, no, that's not being considered by the department.

Senator WATERS: Why not?

Ms Chidgey : Because we're not considering it.

Senator WATERS: That's not a reason. Is there any better reason?

Ms Chidgey : I don't have anything to add.

Senator WATERS: Maybe you should consider it. That's my suggestion; that's a free one. Thank you.

CHAIR: I will finish with three very short questions. When did the public interest disclosure scheme move into the Attorney-General's portfolio?

Ms Chidgey : We'll need to take on notice the exact transfer time.

CHAIR: Can you also take on notice, if you don't know off the top of your head: was it introduced by a Labor government or a coalition government?

Ms Chidgey : The public interest disclosure scheme?


Ms Chidgey : By a Labor government.

CHAIR: Is it accurate that a Federal Court judge recently described that scheme as 'technical, obtuse and intractable' and in a separate quote, involving 'a number of complex, interlocking substantive provisions and definitions' that gave it those qualities? That's from, as I understand it, Justice Griffiths.

Mr Moraitis : Yes, we recall that quote.

Ms Chidgey : Yes.

CHAIR: You recall that quote?

Mr Moraitis : Yes. And—

CHAIR: And the decision of Stefanic?

Mr Moraitis : We recall that, and it resonated for quite a few people who have to administer the act.

CHAIR: Thank you. That's much appreciated. We will now move to group 1. Senator Carr, do you have any questions in group 1?

Senator KIM CARR: I certainly do. Can I turn to the issue of legal assistance funding?

Mr Anderson : Senator, it's not group 1. If your questions are—

Senator KIM CARR: I haven't asked a question yet. I was waiting for you to get to the table. Can you explain to me how the new mechanism for legal assistance funding differs from the existing system under the national partnership agreements for Indigenous groups?

Mr Anderson : With respect to the funding for Aboriginal and Torres Strait Islander legal services, they're currently under a separate national agreement, and the proposal is that that funding be rolled into the national legal assistance partnership, together with the funding for legal aid commissions and community legal centres.

Senator KIM CARR: There was a review that was undertaken by the Aboriginal and Torres Strait Islander legal services, calling for a standalone, specific funding program, and this new arrangement clearly stands in contrast to that central recommendation. Explain to me why that has been ignored.

CHAIR: Senator Carr, is this an AGS question?

Mr Moraitis : No, Senator. It's group 2.

Senator KIM CARR: You don't think it's an appropriate time to ask—

CHAIR: It's group 2. We're currently in group 1..

Mr Moraitis : The Australian Government Solicitor usually doesn't get asked many questions, but I don't want to pre-empt the committee.

Senator KIM CARR: Do you want to complain that I've asked the question?

Mr Moraitis : I don't want to complain at all, Senator. We're happy to answer your questions.

Senator KIM CARR: That's good.

CHAIR: It's just that Senator Patrick has AGS questions. Can we ask you to hold the phone for a bit, and we'll go to Senator Patrick.

Senator KIM CARR: I don't mind when you do it.

CHAIR: That's wonderful. Senator Patrick, you have the call.

Senator PATRICK: Mr Kingston, during the election campaign, there was a controversy referred to as 'watergate', which related to the purchase of water buybacks by Eastern Australian Agriculture Pty Ltd which turned out to be a daughter company of a Cayman Islands domiciled company called Eastern Australian Irrigation. During the discussions in relation to that particular controversy, Mr Barnaby Joyce indicated that he wasn't aware, when he approved the purchase, that there were any Cayman Islands entities involved in the transaction. Under order for production of documents in the Senate, all of the papers associated with that particular transaction were provided to the Senate. AGS were responsible for due diligence, but, unfortunately, the due diligence work was redacted. It's now currently subject to FOI and will be referred to the Information Commissioner shortly. When conducting due diligence for contracts for the Commonwealth, do you—as a matter of general policy or as a matter of course, as you are going through due diligence process—check to see whether any company which the Commonwealth is dealing with has related entities domiciled in tax havens?

Mr Kingston : I think it would be accurate to say that we would not do that as a matter of course, if that means on every occasion on which we might be asked to do some level of due diligence. What due diligence might involve for us, in any particular case, will be very dependent on what we're asked to do by the client. A client will not normally just say, 'Will you do due diligence on that?' and leave it for us to decide the scope of our retainer. It will be often the case—and I'm not talking about this particular case—that they'll say, 'Can you look at these particular issues or answer these precise questions?' in relation to what's called due diligence. And, even if what we're asked to do is left more at large, whether we would look at that would depend very much on the circumstances of the matter and the thing in relation to which we are conducting the due diligence.

Senator PATRICK: So, to your knowledge and not restricting to that particular transaction, has the AGS ever looked at companies or related entities domiciled in tax havens in the course of any due diligence that you are aware of?

Mr Kingston : I can't say from my personal knowledge, but that's a pretty poor indication, frankly, of whether we have, because there will be lots of due diligence operations that I'm not personally aware of.

Senator PATRICK: I will accept on face value that, in principle, it's not something you generally look at, so I will go to the secretary now. Noting that the government purports to have strong multinational tax avoidance policies, is there any reason why you are not instructing due diligence in examining for companies that might be connected to parents, or related entities, in tax havens?

Mr Moraitis : I wouldn't add anything to what Mr Kingston said about how AGS approaches their due diligence role. The clients instruct AGS on these contracts. As a matter of policy, whether there should be a presumption that AGS does this things in recommending to their clients that they do that, it all depends on the risk matrix. But I take your point, given the larger picture here, that it's something to consider.

Senator PATRICK: So, in some respects, that would be a matter for the Minister for Finance?

Mr Moraitis : Well, to an extent—

Senator PATRICK: From a policy perspective. Obviously you would have some legal view on it.

Mr Moraitis : We should also have a legal view and perhaps suggest to our colleagues in other departments, 'Let's consider this issue.'

Senator PATRICK: Minister, do you have a view on that at all, in terms of the importance of examining companies which the Commonwealth deals with and having an understanding of their connections to related entities in tax haven countries?

Senator Payne: I appreciate the point you're making, but it is a matter which I would want to take up with the finance minister and the Treasurer to provide you with a full response.

Senator PATRICK: So you would—

Senator Payne: If you want me to take something on notice, I'm happy to do that.

Senator PATRICK: That would be appreciated, Minister, thank you very much. I'm done now, Chair.

CHAIR: Thank you very much, if there are no further questions for the Australian Government Solicitor, we will say thank you very much to Mr Kingston. You are dismissed. We will move on to group 2. Senator Carr.

Senator KIM CARR: Yes, thank you. Here we go again.

Mr Anderson : I can recall your question.

Senator KIM CARR: You can recall it? that's very good.

Mr Anderson : Should I answer it?

Senator KIM CARR: Try and help me here.

Mr Anderson : There were actually two reviews done. There was one review done of the national partnership agreement and there was one review done of the agreement concerning funding for the Aboriginal and Torres Strait Islander legal services. So the one concerning the Aboriginal and Torres Strait Islander legal services did make a recommendation that they should continue as a standalone program, but it didn't provide a lot of analysis in support of that. The other review said that having multiple different funding streams for the legal assistance sector was actually not helpful for the sector, and that recommended that all the different funding streams should be brought into the single agreement.

Senator KIM CARR: Mr Anderson, Aboriginal groups themselves surely have some stake in this. I'm advised that Indigenous groups have expressed outrage about the decisions that have been taken. I have an open letter that was signed by 100 organisations back in April. The letter stated that the government decision ignored the recommendation of the review. I can go on and quote them at length. In my experience, it's folly to ignore that level of consultation with direct Indigenous groups. Why was that ignored? Why was that consultation ignored?

Mr Anderson : The government is well aware of the views that have been raised by a number of Indigenous organisations in respect of the proposed change. The government proposed that there be a number of measures that will ensure that the funding that currently goes to the ATSILS is quarantined so that it cannot be taken away from Aboriginal community controlled organisations for the life of the agreement. We have actually said to the ATSILS, are there any areas that they would like the Commonwealth to negotiate on their behalf in this agreement with the states and territories. The intention is not in any way to move away from having Aboriginal community controlled organisations providing culturally safe and culturally appropriate services for Indigenous people.

Senator KIM CARR: I take it you have had extensive conversations with these various Aboriginal groups, these ATSILS?

Mr Anderson : We have met with a collection of the CEOs and principal legal officers of the ATSILS on at least one occasion. We have met with a representative of NATSILS, the peak body. On several occasions we've met with the Attorney—on at least two occasions.

Senator KIM CARR: Directly with the Attorney?

Mr Anderson : Yes.

Senator KIM CARR: Over what period of time?

Mr Anderson : It would've been at least since June.

Senator KIM CARR: I see. Have these discussions led to any change in the government's position?

Mr Anderson : They have led to no change in the government's desire to see all the different streams of funding for the legal assistance sector brought into the one agreement but at the same time with appropriate protections to ensure that Aboriginal community controlled organisations and the ATSILS in particular, continue to provide culturally safe, culturally specific services to Indigenous people.

Senator KIM CARR: Sure. I understand why the government would say they haven't had a change in their desire, but the Indigenous groups would be looking for assurances that self-determination actually means something. What assurance can you give the groups with whom you are dealing that there will be effective self-determination with regard to providing legal assistance, given how important it is. Given the rates of incarceration of Aboriginal people in this country—extraordinary and disgraceful rates—what action can you take to give ATSILS groups assurances that there will be self-determination in terms of the provision of legal assistance?

Mr Anderson : I'll make a comment in particular about incarceration rates. Under the stand-alone arrangement, the Commonwealth is funding the ATSILS to provide services, over 80 per cent of which are in relation to defending parties in criminal matters under state and territory laws. But the states and territories are not within that relationship with the ATSILS. By bringing it within the single national legal assistance partnership, we are bringing it into a situation where the states and territories have to be involved in discussions about the impacts of their policies and practices upon Indigenous people. So we think that is in the interests of the Indigenous people. To answer the question—I'm sorry I'm taking a little long—the assurances that have been given and are being given are to say to the ATSILS and to NATSILS: 'What assurances would you like us to embed into the national legal assistance partnership? The offer has been by one of those to quarantine the funding to the existing bodies, subject to—of course if a body was to have a significant performance issue, then there would be a need to examine that, but even then it would still be funding quarantined to an Aboriginal community controlled organisation. Those are the sorts of things that we have been saying to the ATSILS and to the peak body, NATSILS, 'What would you like us to do?' We have been really stressing: what would they like us to negotiate in the agreement?

Senator KIM CARR: And that is a change in your position?

Ms Hermann : The other thing the new arrangements have looked to do is embed the principles of self-determination. This is the first time these principles will be embedded in legal assistance arrangements.

Senator KIM CARR: When you say 'embedded', what's the form of the embedding?

Ms Hermann : I can give you the exact words, if that's helpful.

Senator KIM CARR: If you would, please. Thank you.

Ms Hermann : Sorry, it will just take me a moment to find them. The words in the paper that has now been released say: 'We will provide funding to ATSILS to allow for the delivery of culturally appropriate legal assistance services, thereby supporting self-determination of Aboriginal and Torres Strait Islander people, which in the context of the national legal assistance partnership refers to Aboriginal community controlled organisations being the preferred providers of culturally appropriate legal assistance services, while acknowledging that Aboriginal and Torres Strait Islander people have a choice in which legal assistance services they access. ATSILS is determining service priorities and locations based on community need and in partnership with governments and the broader legal assistance sector, and ATSILS is being involved in the development and implementation of legal assistance policies and programs that affect Aboriginal and Torres Strait Islander people.'

Senator KIM CARR: Okay. So I appreciate the point you make, but is that embedding going to occur in the form of guidelines or is it in the form of contracts? How will you secure those commitments?

Ms Hermann : It is proposed to be in the formal text of the national partnership agreement with the states and territories.

Senator KIM CARR: So this won't necessarily guarantee them a separate and distinct relationship to the Commonwealth? They'll still have to work with the states?

Mr Anderson : The Commonwealth isn't stepping away from the relationship. The Commonwealth is actually seeking to take a national leadership role, which both reviews recommended we take.

Senator KIM CARR: Do you think this will actually improve the level of incarceration? The Western Australian situation, for instance, is truly appalling. Do you really think these arrangements will see fewer Aboriginal kids locked up?

Mr Anderson : That is primarily being driven, of course, by policies and practices of, for example, the Western Australian government—

Senator KIM CARR: Including mandatory sentencing. Yes.

Mr Anderson : Including mandatory sentencing and fine enforcement and things like that. But I come back to the point that, currently, each individual ATSILS has to lobby a state government on their own. This way it will be them and the Commonwealth and the state government all together in a room but also with the legal aid commissions and the CLC. We see situations where a state government listing practice in a particular court, for example, can have a disproportionate resourcing impact upon an ATSILS if they have to send people to represent their Indigenous clients more than one day a week in a remote location. There are those very simple things, and then there are the larger things about can government consider changing some of their policies, legislation practices around policing and—

Senator KIM CARR: Thank you. Obviously I'll return to this matter. You'll have to get used to me.

Mr Anderson : Yes, Senator.

Senator KIM CARR: I'm sure you will look forward to that. I'll now turn to family law matters. I raised some matters in regard to the extraordinary position that the government's got into with regard to the reviews that they're undertaking, which are now with the parliamentary review, on top of the matters that the ALRC has been dealing with. Can I turn to the Henderson inquiry. Has the government responded to the Henderson inquiry recommendation?

Senator HENDERSON: A very good inquiry, I might add, Senator.

Senator KIM CARR: I'm pleased to hear that. I just wondered if you could help me here. The Henderson inquiry recommended:

… the Attorney-General, through the Council of Australian Governments where necessary, works to improve the information available to courts exercising family law jurisdiction at the earliest possible point in proceedings …

The government response to this recommendation, recommendation 21 of the report, said, 'The government is working with the states and territories to improve information-sharing between the states' and so on and so forth. What specifically has the government now done to actually action that recommendation?

Mr Anderson : That specific recommendation?

Senator KIM CARR: Recommendation 21.

Mr Anderson : I mentioned earlier today in respect to information sharing that the government allocated $11 million towards working on improving information sharing with states and territories, the majority of which goes to co-location of state and territory officials in family law registries and a very small portion of which goes to scoping out a technological solution to also improve information sharing.

Senator KIM CARR: There were a series of recommendations in the Henderson inquiry that were either noted or agreed in principle. In the ALRC report recommendation 53 was a mandatory national accreditation of family reporting writers. Recommendation 7 is the replacement of the presumption of equal shared parental responsibility and so on. There were recommendations 18, 19, 14, 57, 23, on child views, and 24—

Senator HENDERSON: Can I just perhaps intervene for one moment? Clearly I was the chair of the Henderson inquiry. I have got a comprehensive overview of all the ways in which the government has responded—it's obviously quite detailed—so I could assist you by going through each of the recommendations and giving you a response as per the government's response, which was made in September 2018.

Senator KIM CARR: What I'm interested to know, Senator, is not your response; it's the government's response.

Senator HENDERSON: I understand that, but I'm just trying to be very helpful.

Senator KIM CARR: I'm interested to know: when will the government complete its consideration of these recommendations?

Mr Anderson : A number of the recommendations are actively being considered as part of the broader process of considering reform to family law, so that picks up the response to the ALRC as well. Two recommendations have been fully implemented and 16 have been partially implemented besides the 13 that have—

Senator KIM CARR: Would it be fair to say that these matters have been paused pending the parliamentary inquiry?

Mr Anderson : No. No matters have been paused pending the parliamentary inquiry. I'll go back to the response to recommendation 21 on information sharing, for example. Working with the states and territories on their family violence and child protection systems to get them to better work with the federal family law system is not a small piece to take forward. It's going to take some time, but we're actively doing that. So that's just one example. No-one's actually pausing on any of these reforms.

Senator KIM CARR: When will we see them implemented? If they're not paused, when will they be implemented?

Ms Orr : As we've indicated, some have already been implemented. A number have been partially implemented. Would you like to give me some examples?

Senator KIM CARR: You can take it on notice. I'd like to know when these matters are all going to be concluded.

Ms Orr : Are you referring to the Henderson recommendations?

Senator KIM CARR: I've listed through eight of them. When will you be able to say that they'll be concluded?

Ms Orr : As we've stated, some are being considered in context of the ALRC report, which had 60 recommendations. There's no obligation for the government to make a formal response to that report, and the timing of any response is a matter for the government, but the department's actively considering them.

Senator KIM CARR: I hear those words; I'm obviously not particularly comforted. If I could turn to the Women's Economic Security Package: funding of $10 million for a two-year pilot was announced in November 2018 for family law property disputes mediation run by legal aid commissions across Australia. Can you give me some information on that? How many mediations have been run under that pilot so far?

Ms Orr : Sorry, can you repeat the question?

Senator KIM CARR: How many mediations have been run under the pilot—that funding of the $10 million for the two-year pilot—that was announced in November 2018 for family law property dispute mediations?

Ms Orr : The $10 million—

Mr Gifford : That trial you're referring to is due to commence in January 2020.

Senator KIM CARR: That's not the question. I was wanting to know how many mediations you've run under the pilot.

Mr Gifford : Sorry, the pilot has not yet commenced.

Senator Payne: It starts in January.

Senator KIM CARR: I see, it hasn't started—so none. None is the answer.

Senator Payne: Its commencement date is January 2020.

Senator KIM CARR: There you go. That's straightforward, then. Do you have a target number? You must have worked out your money on that basis.

Mr Gifford : The trial is due to run from January 2020 through to December 2021. I believe we have an estimate of how many people would likely go through that pilot.

Ms Orr : It is 650.

Senator KIM CARR: It's 650? Thank you. We'll have to measure that at another point. There's $7 million for three years, under the Women's Economic Security Package, to prevent victims of family violence being cross-examined by their ex-partners. When did that commence?

Ms Ma thews : That has commenced now. The funding is available, and the scheme has also commenced hearings.

Senator Payne: And it's been legislated.

Senator KIM CARR: Have you got the numbers of people involved with that?

Ms Ma thews : The commencement of the scheme has only just begun, in terms of hearings. It's too early to say the numbers that it has applied to.

Senator KIM CARR: You can't tell me about the numbers of people who've sought legal assistance either?

Ms Ma thews : I could take it on notice to provide whatever data we have.

Senator KIM CARR: The legal aid commission has indicated that a hundred matters a year would fall into the category of needing the funding. Would you agree with that number?

Ms Ma thews : We did work with Legal Aid to establish the funding and also commissioned the Australian Institute of Family Studies to do some modelling, on which the funding was based.

Senator KIM CARR: On how many occasions has the court, on its own initiative, directed that a prohibition should actually apply?

Ms Ma thews : I'd have to take that on notice.

Senator KIM CARR: With regard to the Family Advocacy and Support Service, the government indicated that it's urgently committed to adopting the recommendations of the Standing Committee on Social Policy and Legal Affairs and the ALRC, along with domestic violence and child safety bodies. Could you indicate what's actually been done in regard to those matters.

Ms Ma thews : In relation to the FASS, in MYEFO last year the government did extend it for a further three years. That was $22.6 million to extend the FASS. Also, in this year's budget, there's a further $7.84 million over three years for dedicated men's support workers in the FASS registries. In relation to the child support services, that is being considered in the context of further family law reform.

Senator KIM CARR: So that's in—

CHAIR: Senator Carr, how much more is there to go?

Senator KIM CARR: One question. Is this a national program?

Ms Ma thews : Yes, it is.

Senator KIM CARR: There'll be no regions of the country that are left out of that?

Ms Ma thews : It applies in all states and territories, yes.

Senator KIM CARR: Yes, I understand the idea of 'national'. I want to know whether or not families in rural and remote Australia can access the scheme. Is that what you mean?

Ms Ma thews : It's currently in all family law court registries throughout the country and in some circuit court locations.

Senator KIM CARR: Can you answer my question, though. Can people in rural and remote Australia access the family law scheme through regional family law registries?

Ms Ma thews : Where there is a family law court registry nearby, yes.

Senator KIM CARR: So is it the case that rural and remote Australians can access them?

Ms Ma thews : They could.

Senator KIM CARR: We're obviously talking at cross-purposes. Are there regional family law registries right across the country in remote areas?

Ms Ma thews : Yes, there are.

Senator KIM CARR: So there are no parts of the country that are not covered by this scheme?

Ms Ma thews : It depends on what you mean by 'covered.' Obviously, there's not a family court registry in each town. There are around 16 throughout the country.

Senator KIM CARR: It has been put to me that there are parts of the country where rural and remote families do not have access. Is that correct?

Ms Ma thews : I think that may be a separate issue.

Senator KIM CARR: Would you like to take that on notice so you can consider the implications of the question?

Ms Ma thews : I can do that. The FASS only operates where there is a family court registry.

Senator KIM CARR: That's what I'm saying. We're going around in circles.

Ms Ma thews : I understand the question.

Senator KIM CARR: What parts of the country do not have a regional family law registry?

Ms Ma thews : I can provide on notice the list of locations where there is a registry.

Senator KIM CARR: Thank you very much. Chair, I've got further questions on other aspects of group 2 program 1.6.

CHAIR: You've had 20 minutes, so we might have to share the call around a bit before we come back to you.

Senator KIM CARR: Sure.

CHAIR: Senator Siewert.

Senator SIEWERT: I want to go back to funding for Aboriginal legal services. I think Mr Anderson made the point that this is bringing a whole lot of legal programs together. Does that include a rethink on the Family Violence Prevention Legal Services funding? Is there an intention to bring that into the A-G funding pool?

Mr Anderson : Not currently. For the meantime that's going to remain with the National Indigenous Australians Agency.

Senator SIEWERT: You commented before about bringing ATSILSs into the broader fund. What's the thinking then on the Family Violence Prevention Legal Services then?

Mr Anderson : It's partly about the nature of the services that they provide. They're not necessarily providing legal services in all circumstances. They're providing a slightly different type of service. There's the question: are they actually a good fit with the national legal assistance partnership? I think the intention of the National Indigenous Australians Agency is to observe what happens with incorporating the ATSILSs and see if that would be a good model for future incorporation of the Family Violence Prevention Legal Services as well.

Senator SIEWERT: For what length of time is the national partnership agreement?

Mr Anderson : The existing arrangement expires on 30 June 2020. It will be a new arrangement. The national legal assistance partnership will be for a further five years.

Senator SIEWERT: That's what I figured, given other ones are generally for five years. That means it will be five years down the track before it's determined whether the Family Violence Prevention Legal Services will go into the agreement?

Mr Anderson : It would be theoretically possible to negotiate a variation midterm, but that is some speculation.

Senator SIEWERT: I want to go now to the legal services and follow-up on a couple of the issues that came up during your previous evidence. If I understand you correctly, you said that funding for ATSILSs will be quarantined.

Mr Anderson : That's correct.

Senator SIEWERT: For the same amount of funding plus indexation? This is where I'm going to.

Mr Anderson : Plus indexation. There's the potential for it to be slightly increased as well.

Senator SIEWERT: I suppose where I'm coming from—

Mr Anderson : There will be no decrease in funding.

Senator SIEWERT: Will it be written into the agreement that there will be no decrease in funding?

Mr Anderson : That will be entered into the agreement, yes.

Senator SIEWERT: How long will that go for?

Mr Anderson : For the life of the agreement.

Senator SIEWERT: So for five years?

Mr Anderson : Five years.

Senator SIEWERT: With the indexation but perhaps further increases?

Mr Anderson : Yes.

Senator SIEWERT: Is the indexation guaranteed?

Ms Hermann : Yes, indexation has been applied.

Senator SIEWERT: I ask that because some departments around here aren't indexing and it's causing a significant problem.

Mr Anderson : We are indexing for the life of the agreement.

Senator SIEWERT: Sorry I'm speeding through these. I have a limited amount of time. You said it will go to either ATSILSs or Aboriginal controlled organisations. Will it be a closed tender process or an open tender process? What do you envisage the process will be for refunding organisations under the new process?

Mr Anderson : For the sake of clarity, I don't necessarily envisage that there will be any process. That's only in an extreme case. But it is the case that the Central Australian Aboriginal legal service, for example, was defunded and that service is now being provided by the Northern Australia Aboriginal legal service. So it is still being provided by an ATSILS but just not by the Central Australian ATSILS. So there is that sort of scenario. These are specialised providers of services. It's not that there are many competing bodies, even Aboriginal community controlled bodies, that would be able to step in and provide these services.

Senator SIEWERT: Yes. I've had a lot to do with them, and the concern is that their specialist expertise could be lost if there were a decision to go to an open tender process. I agree with you that there are Aboriginal controlled organisations that don't have the necessary legal expertise. That's why I'm asking to make sure that that legal expertise is guaranteed. I take on board what you've said about NAAJA taking over the Central Australian Aboriginal legal service, but it is not envisaged that you would be going to other Aboriginal controlled organisations that don't have legal expertise?

Mr Anderson : It would be an extreme circumstance to be looking to another organisation beyond an existing ATSILS. There would need to be a process of looking to another organisation that had the ability to provide those services in addition to being an Aboriginal community controlled organisation. We've certainly had issues with a number of the organisations from time to time, where we've needed to take steps, including having funding controllers put in. But what we want to ensure is that states and territories have to similarly go through a process of working with an organisation to ensure that, if they have concerns, those concerns are properly remedied and the organisation is given the opportunity to get itself back on a good footing. It's not about immediately saying, 'We don't like that organisation—we'll pull the funding.' They have to go through the similar sorts of processes that the Commonwealth would go through.

Senator SIEWERT: Will that be written into the agreements that are established in the run-up to June 2020?

Mr Anderson : That's our intention. It's a negotiation with the states and territories, but it's our intention to negotiate that fairly firmly.

Senator SIEWERT: I want to come to the negotiation of the partnership agreement. You said that this will enable the states, the territories, the Commonwealth and the ATSILS to be at the table. Is it intended that this agreement is negotiated with the ATSILS as well in a similar way to the way that the health agreements are now being negotiated through COAG, with them being co-designing and at the table, and co-chairing?

Mr Anderson : When I was talking about having everyone around the table, that is more about the collaborative service planning within each jurisdiction, as opposed to the actual negotiation exercise. There are two sets of negotiation exercises: the Commonwealth with the states and territories, and then there's each state and territory with the bodies within its jurisdiction.

Senator SIEWERT: So each state and territory will now be negotiating with the ATSILS, not the Commonwealth?

Mr Anderson : That's right. We'll negotiate, as it were, the head agreement with each state and territory, which will have quarantining of funding and other conditions around the ATSILS' funding, for example. Then the states and territories will negotiate how to actually implement that themselves.

Senator SIEWERT: How to implement it, or how to do the funding?

Mr Anderson : How to deliver the funding.

Senator SIEWERT: So each state could be different about the way that this is implemented now?

Mr Anderson : They can't depart from the amounts of funding, which will be set out in the head agreement.

Senator SIEWERT: But they could exercise control over what the ATSILS do?

Mr Anderson : We're putting some quite prescriptive things in the head agreement, for example, about the extent to which ATSILS can continue to lobby state and territory governments with respect to changes in policy and practices. That was a concern that ATSILS had raised with us, so we're saying, 'You are absolutely free to continue doing that sort of lobbying. That's not in any way prohibited.' We will put in there things that will carry through—

Senator SIEWERT: It's also the type of legal services that they can offer and the type of support they can offer people. I appreciate the advocacy and I'm glad you've got that on record.

Ms Hermann : Some of the information that I provided previously in the question around self-determination goes to how those ATSILS service providers will be able to determine the types of services that they provide and where they provide them. They'll do that in consultation with governments and other parts of the legal assistance sector.

Senator SIEWERT: There's still a power imbalance there that's different to the approach that's now being taken with health and through the new Closing the Gap refresh process, where there's a negotiation that's going on with the state, rather than the states being around the table with the Commonwealth and being able to make sure that there is genuine co-design.

Ms Hermann : As part of the consultation process, as part of the negotiations, we do intend to meet with all the state and territory governments, but we also intend to separately meet with representatives from the legal assistance sector, including having individual meetings with each ATSILS in each state and territory. So there will be an opportunity for them to provide comments on the proposed negotiation position of the Australian government.

Senator SIEWERT: I appreciate what you've just said, but that's different to sitting as equal partners around a table, as is occurring in other places for First Nations peoples in relation to self-determination and determining where they want to put their priorities. That is just a comment. I want to go on to the Northern Territory royal commission. Are you monitoring the implementation of the recommendations?

Ms Harvey : We are not monitoring the recommendations coming out of the Northern Territory royal commission. That work is being led by the Department of Social Services.

Senator SIEWERT: I'm going to ask them a series of questions when I'm there on Thursday. But the ones that then pertain to areas that you may have responsibility for, or that aren't social services—are you saying they're coordinating a response from all government agencies?

Ms Harvey : I'm saying they're leading the work on that. I would have to take on notice exactly what that's involving, but we're not leading that work responding to the Northern Territory royal commission.

Senator SIEWERT: In terms of the leadership and that coordination, are you monitoring the implementation, or can you report on implementation of things that fall within your jurisdiction?

Ms Harvey : I might take that on notice. I think there are a couple of recommendations that go to things within this portfolio, but I don't have the information in front of me at the moment.

Senator SIEWERT: Could you take on notice to provide an update on the implementation of the recommendations that relate to your portfolio and justice? Can you provide an update on the implementation of each of those recommendations, please?

Ms Harvey : We can do that.

Senator SIEWERT: So, for example, would you be responsible for recommendation 25.5:

1. The Northern Territory collect and report data on Aboriginal deaths in custody to the Australian Institute of Criminology.

2. The Australian Institute of Criminology to publish all data made available on Aboriginal deaths in custody on an annual basis.

Mr Anderson : The Australian Institute of Criminology is in the Home Affairs portfolio.

Senator SIEWERT: I beg your pardon. I figured it might be with you. If you could take those on notice, that would be appreciated. I want to go back to the issues around family violence. Is the government considering establishing a national task force into the deaths of First Nations women who are coming into contact with the justice system, as the sector has been advocating for?

Mr Moraitis : That is not something that is under active consideration, as far as I'm aware, although I must say that I have discussed this with the former Canadian Attorney-General, Jody Wilson, a couple of times. They did some work over there.

Senator SIEWERT: They've done similar work?

Mr Moraitis : In Canada, yes. The former Canadian Attorney-General.

Senator SIEWERT: They're quite progressive in terms of a lot of work there.

Mr Moraitis : As for us undertaking something similar, I'm not aware of anything.

Senator SIEWERT: You haven't had any discussions with any organisations?

Mr Moraitis : I'm not aware of any.

Mr Anderson : I'm not aware of anything.

Senator SIEWERT: I understand you've said you're not aware of any, but could you take on notice to confirm that?

Mr Moraitis : Certainly.

Senator HENDERSON: I want to ask Mr Anderson or the appropriate official about the change in the law whereby it is now against the law for a perpetrator of family violence to cross-examine the victim in a particular case. That's just been introduced. It was one of the recommendations of the inquiry I chaired when I was chairing the social policy and legal affairs committee. Could you explain what difference that is making to men and women in this country? I understand it's only just been implemented, but I'm keen to get a bit of an assessment.

Ms Matthews : As I mentioned earlier, while the act passed some time ago, the scheme has only just commenced. There was approximately six months lead time to allow the appropriate arrangements to be made. It is still early days. I've undertaken to take on notice the number of times when orders are being made. But certainly there does seem to be take-up of the scheme. Referring back to the purposes of the scheme, in which it is intended to avoid people being retraumatised in the process of court hearings from alleged perpetrators, we would envisage that that is the purpose that it is serving.

Senator WATERS: I've got some questions for the Family Law Branch. How much did the ALRC inquiry into the family law system cost?

Mr Anderson : That question might have been better directed to the ALRC this morning, but we could take it on notice.

Senator WATERS: I don't know whether they pay themselves.

Mr Anderson : No, but they have an appropriation.

Senator WATERS: Can you tell me what that is?

Mr Anderson : From memory, it's about $2½ million a year. I'd rather take it on notice in order to be sure.

Senator WATERS: Okay. Thank you. Have any resources been allocated to support the implementation of those recommendations?

Mr Anderson : The department's doing it primarily on our own steam—again, using our existing appropriation to develop the response to engage in stakeholder consultation and things like that. But as we've touched on a number of points today, there's funding for a range of different pilot programs coming from the economic security package and through MYEFO and recent budgets. The evaluation of those different programs, like the domestic violence unit's health and justice partnerships and things like that, will all feed in as well. So, there's all that activity that's already been funded, and we'll take the evaluations and that will feed into recommendations for a full body of reform.

Senator WATERS: Are you able to take on notice the list of those 60-odd recommendations from the ALRC report and match them up with the measures that have been taken under those other programs—or whatever you want to call them—that you've just mentioned, such as the safety package and so forth? I'm just interested in which recommendations aren't getting acted on and how many of those there are, as a comparator for those that are being operationalised through those other programs—if you follow what I'm saying.

Mr Anderson : Yes. I'm just loath to agree to that, because a number of these things were in place before the ALRC made recommendations. I think they will be very helpful in taking forward the government's response, because they are about the family law system, but in only some cases were they expressly referred to by the ALRC in their recommendations. It might imply that there are areas of work that are not being advanced if we say, 'Here's something that wasn't expressly mentioned in the ALRC but that we think is important.' So, I don't want to give that impression, if we were to undertake such an exercise.

Senator WATERS: Are you able to undertake the exercise but noting that I'll take your note of caution that that's not the interpretation that I should give to it?

Mr Anderson : We're happy to come back on notice with a list of different activities and pilots that are underway—

Senator WATERS: Yes.

Mr Anderson : because we do find that people sometimes don't have visibility of those.

Senator WATERS: It is useful when you compile them; that's true. But what I'm particularly interested in is: which of the 60 ALRC recommendations are not being operationalised? I'm interested in the ones that are, but I'm also interested in what is not being implemented. Hopefully that's a fair question that you can understand why I'm asking.

Mr Anderson : We'll certainly turn our mind to a list of different reforms that are currently being progressed, operationalised et cetera, and we'll see the extent to which we can marry that up with ALRC recommendations.

Senator WATERS: Yes. Thank you.

Mr Anderson : But all the ALRC recommendations are being considered at the moment, even if some of them aren't being specifically operationalised yet. We had the example before of funding for legal assistance to do lawyer-assisted mediation of small property disputes in family law. That funding came through in 2018, but the program won't start until January 2020, because sometimes it does take a little while to implement these things.

Senator WATERS: Yes. All of that's very useful information, and I appreciate that there's sometimes time delay. So, thank you for anything you can gather together for me, even noting where those recommendations are still under consideration for potential future action. It will still be a very helpful exercise. I want to ask now about the new Joint Select Committee on Australia's Family Law System. Was the AG's department involved in any of the drafting of the proposed terms of reference of that inquiry?

Mr Anderson : We were given the opportunity to provide some comments on the draft terms of reference.

Senator WATERS: Did you have any oversight of running the process of consulting any other relevant departments, such as the Office for Women or DSS?

Mr Anderson : No. We were just given the opportunity ourselves to provide some comments on the draft terms.

Senator WATERS: Do you know if anybody played that role of checking in, for example, with the Office for Women and who that would have been?

Mr Anderson : I'm not aware of how that was being coordinated. All I know is that we were given the opportunity through the Attorney-General's office.

Senator WATERS: Was the Attorney-General's office running the show, or was somebody else running the show?

Mr Anderson : I'm not aware of that.

Senator WATERS: Does anybody know the answer to that?

Mr Moraitis : No.

Senator WATERS: Minister, are you able to shed any light on who had carriage of ensuring that the appropriate organs of government were consulted.

Senator Payne: I'll take that on notice.

Senator WATERS: Thank you. I'm interested in whether or not those relevant bodies were consulted—in particular, the Office for Women—and also whether any women's organisations were consulted on the draft terms of reference before they were put to the parliament. Lastly, has the Attorney or the department received any correspondence from individual women or women's organisations concerned about the potential adverse impact of that inquiry on women and children?

Ms Orr : Yes, the department has.

Senator WATERS: How many?

Ms Orr : We've received 144 items of general correspondence relating to the family law inquiry since it was announced. We've received another 11 items of correspondence related to what we are terming the Do Gooder campaign emails, and another 1,327 items which are yet to be referred to the department that are also the Do Gooder campaign—

Senator WATERS: I'm sorry: I don't know which one that is. Can you tell me more about what you've dubbed the Do Gooder campaign?

Senator KIM CARR: That would be a government initiative, wouldn't it!

Ms Orr : It's a way that campaign emails are promoted.

Senator WATERS: Sure, but what's the content of their ask?

Ms Orr : The content is—

Senator WATERS: Supporting the inquiry, or opposing it?

Ms Orr : asking the government to reconsider the inquiry.

Senator WATERS: So, opposing the inquiry.

Ms Orr : Yes.

Senator WATERS: That was 1,327 of those, plus an extra 155.

Ms Orr : Yes.

Senator WATERS: Is that an unusually large volume of correspondence on an issue that the department has input into?

Ms Orr : It is a high amount of correspondence, yes.

Senator WATERS: Would you say that's historic highs?

Mr Anderson : It's not historic. On some matters outside the family law jurisdiction we receive thousands of pieces of correspondence.

Senator WATERS: How would you characterise this volume of correspondence?

Mr Anderson : I think it's been characterised as being high, but it's not unusually high or a record.

Senator HENDERSON: In relation to the Do Gooder campaign, I want clarify that it's derived from the website, so it's a platform called Do Gooder. You, yourselves, are not referring to the campaign as 'do gooder'—is that correct?

Ms Orr : That's correct.

CHAIR: Thank you. That's an important clarification. I'm glad you said that.

Senator HENDERSON: Yes, so it's not your name that you've designated for the campaign. It comes from the Do Gooder platform, which is an online advocacy lobbying and supporter platform to assist people to create these campaigns.

CHAIR: Quite right. The assumed knowledge for this room may not be the same for everyone listening at home.

Senator WATERS: What will be done with those items of correspondence?

Ms Orr : They will receive a response.

Senator WATERS: Will the minister be briefed on the content and the volume of those pieces of correspondence?

Ms Orr : Certainly the Attorney-General's office is aware of the nature and the amount of the correspondence.

Senator WATERS: How so? Have you told them?

Ms Orr : Yes, the department's been in contact with the office.

Senator WATERS: Are you briefing as to the content and the volume?

Ms Orr : We've had discussions around the content and the volume.

Senator WATERS: Will the department be coordinating the response rather than the minister?

Ms Orr : Yes, the department will respond to the majority of the correspondence.

Senator WATERS: Has the minister also been receiving similar—or dissimilar—emails about this issue?

Senator Payne: Do you mean the Attorney?

Senator WATERS: Yes, that's indeed what I mean.

Ms Orr : The correspondence is addressed to the Attorney and then referred to the department.

Senator WATERS: I see. It's coming in through the Attorney's office and it's being forwarded to you; you'll coordinate the response and briefing about what they're saying.

Ms Orr : That's correct.

Senator WATERS: Thank you. I'll reflect on that. I might have some more questions on notice.

Senator STEELE-JOHN: Who would be best to direct my questions to, in relation to the Attorney-General Department's role in supporting the royal commission?

Mr Moraitis : The royal commission's branch. For information of the committee, can I just confirm that the PID Act was transferred to our department on 10 May last year.

CHAIR: Thank you, that's very helpful.

Mr Moraitis : As we undertook to provide Senator Carr details regarding the AAT, if there's time in the next 20 minutes to do so we're happy to provide it orally; if not, we'll do it in writing.

CHAIR: Well, that's an incentive for everybody to be efficient!

Senator STEELE-JOHN: Last night, Dr Baxter at the Department of Prime Minister and Cabinet confirmed, in relation to a line of questioning by Senator Waters, that the department together with the Attorney-General's Department had provided a shortlist to the PM for selecting commissioners. Particularly, the Attorney-General had been supportive in relation to issues around assessing perceived conflicts of interest. Who can tell me who in the department of the Attorney-General was given the responsibility for playing this role?

Mr Moraitis : Can I clarify something?

Senator STEELE-JOHN: Yes.

Mr Moraitis : Primary responsibility for those matters is with Prime Minister & Cabinet. They consult with us and we provide advice to Prime Minister and Cabinet on these matters.

Senator STEELE-JOHN: Yes, indeed. I understand and—

Mr Moraitis : We don't control the process.

Senator STEELE-JOHN: Dr Baxter made that clear. My question, to clarify, is: When PM&C engaged you for that support, who gave that support to PM&C?

Mr Moraitis : It would've been Iain Anderson's group. Ms Harvey has been—

Mr Anderson : It's group 2.

Senator STEELE-JOHN: So it would've been somebody here—

Mr Anderson : Officials at the table.

Senator STEELE-JOHN: Specifically, as in which member of personnel or which members of personnel, supported PM&C in that effort?

Mr Anderson : It's the royal commission's Commonwealth representation branch. But, to the extent that we provide support, that's not necessarily providing support on all proposals. We don't necessarily know all proposals.

Senator STEELE-JOHN: No, Dr Baxter was very clear. You gave support in relation to considering the questions of the manageability of perceived or real conflicts of interest. I'm just trying to get to the bottom of when PM&C said, 'This is who we're thinking of; can you take a look and see if there are any issues we need to look at in relation to individuals?' Who undertook that work?

Mr Anderson : It's our royal commission's Commonwealth representations branch, which Ms Byng heads up.

Senator STEELE-JOHN: Ms Byng, did you yourself head it up or did someone within your branch do that work?

Ms Byng : I was responsible for securing the conflict-of-interest form from the candidates and providing that to the Department of Prime Minister & Cabinet.

Senator STEELE-JOHN: Excellent, thank you. Can you provide to me, on notice, I think would be the most efficient way to do this, the definition the department uses in relation to a 'manageable conflict of interest'? I'm presuming, of course, you have a definition of 'manageable'.

Mr Anderson : As Ms Byng mentioned, our role was collecting the forms from nominees and providing those completed forms to PM&C. The form itself refers to, at one point, 'steps that could be taken to manage the interest of the parties'. We collect the forms after they've been completed and provide them on.

Senator STEELE-JOHN: So your job was just to make sure that they filled in a form and that that form was provided to PM&C.

Mr Anderson : That's broadly correct. On occasion we might have provided some comments about what they—

Senator STEELE-JOHN: About what they filled in on the form?

Mr Anderson : filled in, yes. We're not necessarily policing or regulating how people—

Senator STEELE-JOHN: No, I know. Did you, in this case, provide any additional comment on what was filled in on the form?

Mr Anderson : I recall that on a number of occasions a number of people involved made some comments to draw attention to things that had been included on the forms.

Senator STEELE-JOHN: Can you provide a bit more detail on that to me on notice? I'd like to know what you drew people's attention to?

Mr Anderson : We will take that on notice. It may well be that there are public interest issues here in terms of the forms that then feed into a process of eventually going as advice to executive council. We'll take that on notice as to what we could provide.

Senator STEELE-JOHN: So the forms feed into an executive advice process, do they?

Mr Anderson : An executive council process.

Senator STEELE-JOHN: And so the form is not able to be provided to me on notice?

Mr Anderson : They're not our forms. They're PM&C's forms. We're happy to take on notice what we would be able to provide, but it might be that the answer is that you'd need to ask the PM&C if you wanted to see the forms.

Senator STEELE-JOHN: If I wanted to see the completed forms, I would go to PM&C, potentially?

Mr Anderson : Yes.

Senator STEELE-JOHN: That clears that up, thank you very much. Who would be the best person to query something in relation to the drafting of the letters patent?

Mr Anderson : PM&C again is responsible for oversighting the drafting of the letters patent. They instruct the Office of Parliamentary Counsel with respect to the drafting of the—

Senator STEELE-JOHN: Do you give advice to PM&C in relation to the letters patent?

Ms Byng : We participated in a small number of meetings where we provided information to them?

Senator STEELE-JOHN: Sorry, I used the incorrect terminology. I meant the terms of reference of the royal commission?

Ms Byng : The terms of reference process was led by the Department of Social Services and questions would be better directed to them.

Senator STEELE-JOHN: Did you provide advice or assistance to the department in the drafting of the terms of reference?

Ms Byng : No, we did not. We provided assistance to the Department of the Prime Minister and Cabinet in the preparation of the letters patent.

Senator STEELE-JOHN: Okay. That kind of clears that up for me. Thanks for that. My final question to you is in relation to funding allocations. Can I just clarify that the Attorney-General's Department has been allocated $379 million for the purposes of the royal commission.

Ms Byng : That's $379.1 million.

Senator STEELE-JOHN: Point one—we've got to be careful there. Would you on notice be able to provide me with a breakdown of the funding allocation within the department as to what bit is going where?

Ms Byng : Just one moment. I may have some information available, so I could address it now.

Senator STEELE-JOHN: Yes, please do.

Ms Byng : Of the $379.1 million, $310.9 million has been provided to the royal commission for the establishment and running of that royal commission; $17.194 million has been provided for the legal advisory service; $20.089 million has been provided for the Legal Financial Assistance scheme—that's the one designed to provide assistance to individuals who are providing evidence to the royal commission or being interviewed by the royal commission—$2.441 million has been provided for staff and supplier costs relating to the legal advisory service and Legal Financial Assistance scheme; $27.5 million has been provided for the Commonwealth representation component; and $0.9 million has been allocated to in the year 2023-24 for the management of royal commission records.

Senator STEELE-JOHN: Just so that I know I'm not leaving a stone unturned: you provided advice to PM&C in relation to the letters patent that were then published by PM&C?

Ms Byng : Yes. We participated in meetings with the department.

Senator STEELE-JOHN: On that issue?

Ms Byng : On that issue.

Senator STEELE-JOHN: One of the concerns that has been raised with me is the absence of mention of a redress, or explanation of redress, as was found in the Royal Commission into Institutional Responses to Child Sexual Abuse. Was the topic of redress something that was discussed in those meetings between AG and PM&C?

Mr Anderson : Ultimately, that's a decision for the government as to what should be contained in the letters patent.

Senator STEELE-JOHN: I know, but was that something that you flagged? I know ultimately it is, but was it at the time that you had that conversation something that was on the agenda?

Mr Anderson : The discussions that we had between agencies were matters that then went into the shaping of deliberative advice to government for them to consider in the context of finalising the letters patent. At the very least we'd need to take on notice whether we can provide any detail of what we discussed with them.

Senator STEELE-JOHN: Can you take on notice: if you can provide me any detail whatsoever as to whether the question of redress was part of those discussions that then fed into that advice. That would be most helpful.

Mr Anderson : We'll take it on notice.

Senator STEELE-JOHN: Does the AG's department have a line of sight as to the legal structure of the royal commission: who has which legal role, and where, within the commission?

Mr Anderson : It's primarily a matter for the chair and the commissioners as to the structure that they adopt. Each royal commission—there are some similarities and, typically, some differences, so it's been a decision for the chair and the commissioners as to, for example, how they would structure the solicitor assisting function, but then the appointment of counsel assisting is a matter for the Attorney done on the recommendation of the chair.

Senator STEELE-JOHN: I know. I just want to know: is the AG's department aware of the current structure of the commission?

Mr Anderson : Yes, we are aware.

Senator STEELE-JOHN: Can you provide me on notice the structure, as you understand it.

Mr Anderson : We could provide you with a structure, as we understand it, but if you wanted to know the structure as it definitively is, you'd be better—

Senator STEELE-JOHN: No, I know; I'm very aware. Are you aware: is the department, as of now, aware of the resignations of Michael Fordham and Chris Ronalds from the positions of assisting counsel?

Mr Anderson : Yes, we are.

Mr Moraitis : Yes, we are.

Senator STEELE-JOHN: Are you aware of a reason that they've given for their resignations?

Mr Anderson : It's sometimes perhaps more surprising that people accept appointments with royal commissions and that some people from time to time step back.

Senator STEELE-JOHN: I know.

Mr Anderson : Royal commissions are an exceptional thing, and when it's a royal commission that's going to go for at least three years—

Senator STEELE-JOHN: I am aware.

Mr Anderson : it's a very significant—

Senator STEELE-JOHN: Have they made you aware of why they resigned from their positions?

Mr Anderson : Mr Fordham didn't communicate a reason to the Attorney-General, and Ms Ronalds gave no reason in her letter to the Attorney-General.

Senator STEELE-JOHN: As far as the department is aware, they've given no reason as to their resignations?

Mr Anderson : No reasons were provided to the Attorney-General by either Mr Fordham or Ms Ronalds.

Senator STEELE-JOHN: And has the department sought reasons?

Mr Anderson : No, we haven't.

Senator STEELE-JOHN: Have they asked why?

Mr Anderson : No, we haven't gone to Mr Fordham or Ms Ronalds to ask for reasons. The point is—and it was made clear by Ms Pirani earlier—there are seven existing counsel: three senior counsel and four junior counsel. If the chair and commissioner feel that they need more, then they only need approach the Attorney. But currently they're well provided for with counsel.

Senator STEELE-JOHN: Thank you very much.

Senator KIM CARR: Mr Secretary, you indicated the date on which one of the appointments to the Administrative Appeals Tribunal was made—

Mr Moraitis : No, the PID Act was transferred to our department on 10 May. Mr Anderson can provide you with all the other information you sought this morning.

Senator KIM CARR: There were some undertakings given by the department as to some returns tonight. Have you got those for me?

Mr Anderson : Firstly, there have been 436 substantive appointments made since 1 July 2015. I choose that date because that's when the various merits review tribunals were amalgamated. Of those 436 appointments, 19 constitute the president and 18 judicial members, so they are qualified by holding judicial office; a further 234 appointments proceeded by way of a legal qualification, so being enrolled as a legal practitioner for at least five years; and 183 were made by reason of special knowledge or skills. I should just say that those 436 substantive appointments don't include extensions or short-term extensions of 12 months or less that have been made in that period, but 436 substantive appointments.

Second, the thing that we took on notice: you asked about whether Tony Barry's CV disclosed employment for then Minister Pyne and also for the Opposition Leader, Mr Turnbull. It did. You asked about Terry Carney, who was first appointed to the Social Security Appeals Tribunal in 1976. He did have an extension from January to September 2017, but his appointment then expired after 41 years as a member. You asked about Mr Will Frost. Mr Frost did not submit his name to the Attorney-General's Department to be nominated for appointment to the AAT. He had resigned from the Attorney-General's office, and his name was submitted to the department by the Attorney-General's office after he had resigned from that office.

Senator KIM CARR: Sorry, there was a date. I was seeking a date.

Mr Anderson : The date that we received his nominated appointment—

Senator KIM CARR: The date of his resignation.

Mr Anderson : His resignation was effective on the 31 December 2018.

Senator KIM CARR: And his appointment date?

Mr Anderson : He was appointed to the executive council on 7 February 2019. And then, Senator Henderson asked about the appointments to the AAT by the government—people who the department were aware had affiliations with the ALP. In the time available, we've identified that Linda Kirk, John Black, David Cox, Anna Burke and Shane Lucas have all been appointed to the AAT and had all disclosed affiliations with the ALP on CVs. I think you mentioned that we didn't have a record of an affiliation with the ALP of Moira Brophy being disclosed through the appointments process.

CHAIR: Before anybody has a moment to ask for anything else, we're going to move on to Group 3. We have four minutes, team. Let's see what we can do.

Senator KIM CARR: I've got a simple matter regarding raising the age of criminal responsibility. I understand the Council of Attorneys-General has committed to establishing a working group on raising the age of criminal responsibility, and it was supposed to report back in 12 months. This was established in November last year and is due to report back. Has there been a report produced?

Mr Moraitis : The next Attorney-Generals' meeting is at the end of November.

Senator KIM CARR: So it is in a month's time?

Mr Moraitis : It's in a month's time. But I'm not sure of the state of play yet.

Senator KIM CARR: So have you got a working group report?

Ms Chidgey : No, there hasn't been a report produced yet.

CHAIR: Is it the position of the Attorney-General to support raising the age of criminal responsibility?

Ms Chidgey : We'll await the outcomes of the working group.

Senator KIM CARR: Will the working group's report or paper be made public?

Ms Chidgey : I don't know if any decision has been made on that as yet.

Mr Moraitis : There will be a public communique from the CAG on that item. There is usually a paragraph outlining the outcomes or considerations that were taken.

Senator KIM CARR: Is it the intention of the Attorney-General to refer the working group paper or the issue or age of criminal responsibility to the Australian Law Reform Commission or any other agency?

Ms Chidgey : There's no current proposal to do that.

Senator KIM CARR: It's just that that the AMA, the Law Council—I understand that there is a petition of 30,000 signatures—and from Amnesty International, the UN Committee on the Rights of the Child has called on Australia, the UN High Commissioner has called on Australia to raise the age. I'm just wondering whether there's a view within the department that—the evidence is very strong that the public and expert opinion accepts the need to raise the age of criminal responsibility?

Ms Chidgey : This would ultimately be a matter for government. There are probably a couple of things on that that I would mention, which are: at the moment the age of criminal responsibility is consistent across all jurisdictions; and probably the majority of child offenders are actually at state and territory level, so we are particularly interested in state and territory views; and at the moment there are intersections with intervention programs and the age of criminal responsibility. So an important part of the work of the working group will be how to consider those issues if the age is changed.

Senator KIM CARR: Let me make this clear: the Attorney-General in New South Wales is supporting the position of raising the age. You've suggested taking into account states' views. Have any of the other Attorney-Generals indicated a public position of supporting raising the age of criminal responsibility?

Ms Chidgey : I think Northern Territory may have indicated in-principle support. But jurisdictions are obviously participating in the working group and council process.

Senator KIM CARR: Thank you for that. I'm just surprised that the Attorney-General wouldn't have made some comment on the matter or had some position on that. I asked some questions before regarding Mr Frost's nomination to the AAT. Were you able to establish the date on which he was nominated? I did ask that question earlier. Are you able to provide that information? You've indicated the date on which he resigned—the 31st—and the date he was appointed, but I also thought I asked: what was the date on which he was nominated?

Mr Anderson : The department was advised of his name for nomination on 4 January 2019.

Senator KIM CARR: And you regard that as the date of nomination?

Mr Anderson : That's the date that the Attorney-General's Department was advised by the Attorney-General's office that we should prepare a pack for his nomination to go forward for consideration.

Senator KIM CARR: Thank you very much.

Senator WATERS: I have some questions on the National Integrity Commission. Consultation on the discussion paper closed in February 2019. What work has been done to respond to the issues raised in the submissions and what were the key issues raised in the submissions, in a very brief form?

Ms Chidgey : We've continued to work with the Attorney to consider a range of issues. There are obviously some complex issues to work through, like potential coverage of the judiciary and parliamentarians and how that might work. We have been providing advice and refining some legislation.

Senator WATERS: When we last spoke in February, my understanding of the evidence was that there were some drafting options before the Attorney at that time, which was eight months ago. When will that drafting process be complete and a bill be introduced to the parliament—not my bill; the government's bill?

Ms Chidgey : Yes. It will be complete when the Attorney has agreed to the draft—

Senator WATERS: You don't say! Is there an estimated time for when that will occur?

Ms Chidgey : I think the Attorney has indicated that he hopes to release the exposure draft before the end of the year.

Senator WATERS: The Australia Institute submission was highly critical of the proposed model and said it was under-resourced, lacking in transparency and largely toothless. Has the department prepared advice regarding strengthening the proposed model to address those and other criticisms?

Ms Chidgey : Obviously the Attorney is aware of the issues raised as part of the consultation.

Senator WATERS: I understand that you can't tell me what advice you've given to the minister. Would a Commonwealth integrity commission that's consistent with the model proposed in the discussion paper be able to investigate and respond to allegations relating to the involvement of federal ministers and immigration officials in facilitating immigration access for Crown Casino high rollers? Would such an investigation be in public, if it were able to be held?

Ms Chidgey : I think that involves speculation on facts that I am not aware of. The commission will be able to investigate any criminally corrupt conduct.

Senator WATERS: In public?

Ms Chidgey : It would ultimately expect that matters would go on to be prosecuted in court if a brief of evidence were able to be produced.

Senator WATERS: Okay, but the Integrity Commission itself would not be conducting those inquiries in public?

Ms Chidgey : It would be a final decision for the government, but the proposal in the discussion paper, as you are aware, is that the public sector part of the commission wouldn't hold public hearings and that ultimately the public part of any process would be a court resolving a criminal matter.

Senator WATERS: And that hasn't changed since February?

Ms Chidgey : It will ultimately be a final decision for government before introduction.

Senator WATERS: Thank you. I tried. You did your job very well not to tell me anything. I will wait and see.

CHAIR: I have two quick clarifying questions. Senator Waters is obviously very enthusiastic about the integrity model that has been put forward by the Greens political party. Have you looked at that model in the course of your work?

Ms Chidgey : We had considered it. I think there had been a committee inquiry that we had appeared before.

CHAIR: Would that model require journalists—for instance, from the ABC, SBS or any other organisation—to appear before it?

Ms Chidgey : Yes. My understanding is it could.

CHAIR: Would it require those journalists to provide, for instance, their privileged legal advice to the commission, given the breadth of the powers provided to that organisation?

Ms Chidgey : We would have to take that on notice.

CHAIR: You can. That's fine. Similarly, would it require them to reveal sources?

Ms Chidgey : We'll take that on notice as well.

CHAIR: Thank you very much. Thank you, one and all, for your patience, enthusiasm and endurance. We very much appreciate your assistance. I wrap up by saying a big thanks to the minister, who has been with us all day, to Hansard, to broadcasting and to our ever-helpful secretariat staff. Senators are reminded that written questions on notice should be provided to the secretariat by 5 pm on Friday 1 November 2019. Is it the wish of the committee to accept the documents tabled in the course of the day? There being no objection, it is so ordered.

Committee adjourned at 23:05