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Legal and Constitutional Affairs Legislation Committee
22/10/2020
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
High Court of Australia

High Court of Australia

[12:03]

CHAIR: We now have officers representing the High Court of Australia. Would you like to make an opening statement before we go to questions?

Ms Lynch : No, Chair, we don't have an opening statement.

Senator McALLISTER: Hello, Ms Lynch. Thanks for being here today. I want to ask you about the High Court's response to the findings of the investigation that was conducted by Dr Thom. I note that the Chief Justice made a statement about those findings. She indicated that the findings were of extreme concern to her and to fellow justices. She went on to say:

We're ashamed that this could have happened at the High Court of Australia .

The statement went on to provide assurances that the experiences of the six women whose complaints were borne out by the investigation would not happen again. I just want an update regarding the implementation of the recommendations made by Dr Thom.

Ms Lynch : Thank you, Senator. There are a number of things that I can mention. The justices have developed a supplementary HR policy that relates to chamber staff and which covers a number of things that were identified by Dr Thom. We have revised the induction program, and one section of the induction program is one of the justices taking the associates through that new HR policy—clause by clause. We have identified the senior registrar as the person in particular who is available to assist chamber staff and who will have a closer relationship with chamber staff to be a conduit back to me and to the Chief Justice. All associates, as they finish their time, have the opportunity to have a conversation with me to talk about their experiences.

I should also mention that the court, the judges, have established a working group, chaired by Justice Gageler and with Justice Gordon, myself and the senior registrar, to keep the HR supplementary policy under review so that we can continue to ensure it's as effective as it can be.

Senator McALLISTER: Recommendations 4 and 5 from Dr Thom go to confidentiality requirements and expectations in relation to social functions. How have they been addressed?

Ms Lynch : For the confidentiality requirements, there's a document that associates are given that relates to the importance of confidentiality in chambers in relation to the judicial role of the court. That has been amended to make very clear that it doesn't extend to workplace matters and that associates should feel able to raise workplace matters. That's also something that's emphasised again in the induction training. Again, one of the judges takes the new associates through that confidentiality policy and emphasises that it doesn't preclude conversations about workplace issues.

Senator McALLISTER: I think you indicated that there's an opportunity for staff to provide feedback at the conclusion of their period.

Ms Lynch : That's correct.

Senator McALLISTER: And that feedback is to you, Ms Lynch?

Ms Lynch : That's correct. Of course they have discussions with the justices, but I make sure they have the opportunity to have a private conversation with me, if they wish to, about their experiences.

Senator McALLISTER: That's in response to the sixth recommendation, is it?

Ms Lynch : That's correct.

Senator McALLISTER: Is there an ongoing attempt to engage currently serving associates just to touch base about their experiences while they're serving?

Ms Lynch : The supplementary chambers policy makes very clear that associates can speak at any time to, particularly, the senior registrar or myself about any issues and that they have the opportunity to speak privately and informally. Again, the senior registrar is identified as somebody they can speak to if they have issues, as well as our HR team.

Senator McALLISTER: I'm uncertain about the protocols around this, but is it appropriate for you to table the documentation that's been prepared for associates?

Ms Lynch : I can table the chamber's supplementary policy. I'd note, though, that it is a matter that we continually keep under review, and we've had the opportunity to have comments back from former associates and outgoing associates. We'll be taking those on board and keeping it under review, and there are changes that we're likely to make to it. But I can table that policy.

Senator McALLISTER: Thank you very much. That actually satisfies my questions. This was a very serious matter, and I appreciate you coming before the committee to give us an update on how you are progressing with the implementations.

Senator PATRICK: Have any members of state, territory or Federal Police contacted the High Court seeking access to the report prepared by Dr Thom?

Ms Lynch : Yes, the AFP contacted us, initially in late June, asking us to pass on details of contact officers in the AFP for people from Dr Thom's report who may wish to contact them. They have subsequently requested a copy of Dr Thom's report, although at the time they requested the report, on 13 August I think, they hadn't had anyone make a complaint or raise a matter with them.

Senator PATRICK: Have you provided that document to the police? Have you responded favourably to that request?

Ms Lynch : I've indicated to the AFP that the court would have no difficulty if any of the complainants provided their part of the report to the AFP, but that if the AFP wanted to press the matter I would need to seek agreement from the associates involved, given that the report contains very sensitive personal information and that some of the former associates had requested confidentiality.

Senator PATRICK: I mean, we're talking about the AFP requesting a document of the High Court, not a journalist. To me it seems strange that we wouldn't place trust in the AFP to maintain confidentiality, if they requested and received a document under confidential terms.

Ms Lynch : I'm not reflecting on the AFP, but I am reflecting on the request that we had had from former associates and conversations had about some of them wanting to maintain the confidentiality. And I've said to the AFP that if any of the complainants chose to give it to them then the court would have no problems and that I would consult the associates if the AFP wanted to press it.

Senator PATRICK: If the AFP were conducting an investigation, would the court resist the handing over of that document?

Ms Lynch : I think that's a hypothetical question.

Senator PATRICK: Okay, then: do you know whether they're conducting an investigation? Have you been informed of that? Have you asked the question?

Ms Lynch : At the time that they last wrote to me I think they said that nobody had made a complaint to the AFP.

Senator PATRICK: But that's a different question, as to whether or not they were conducting an investigation, and I'm sure the AFP are in a position to initiate their own investigations. Are you aware as to whether or not they are conducting an investigation, conducting preliminary inquiries or so forth?

Ms Lynch : I'm aware that the ACT DPP referred a matter to them. And the police, when they contacted me, said to me that their usual practice would be not to speak directly to people but for people to approach them. So, I've passed on the AFP contact details to the complainants or their solicitors and to Dr Thom.

Senator PATRICK: I'm struggling even further now. You've had the DPP engage the ACT police—I presume it is in the ACT police's capacity, not the Federal Police—

Ms Lynch : I'm not sure that they would be matters for the AFP, the Commonwealth DPP or the ACT police.

Senator PATRICK: So, the DPP has an interest in this, and the AFP has requested assistance from the High Court in relation to a matter that is being considered by the DPP, and you're not assisting them by providing them with documentation? Do they have to seek a subpoena? A warrant? What's—

Ms Lynch : No. At this stage we have said that we would want to consult the former associates because it is sensitive information that they have provided to Dr Thom as part of Dr Thom's inquiry. Each of the associates, each of the complainants received the part of the report that related to their complaint. And the court would not have an issue if associates wished to provide that to the AFP.

Senator PATRICK: And if the police—they've written to you, I presume? They've written to you asking for this?

Ms Lynch : They've written making requests, and I've gone back to say that the court would not have a problem if the associates provided it directly, and if they wished to press their request then I would need to refer to the associates.

Senator PATRICK: This is a document that is the property of the court. If the associates indicated that they didn't want the report handed to the police—have you asked them those questions?

Ms Lynch : No. I've asked the police. I said to the police that if they wish to press it I would press their request; I would ask the associates.

Senator PATRICK: So, the AFP haven't pressed that request?

Ms Lynch : No, and I have provided the AFP contact details to the associates—the officer who contacted us.

Senator PATRICK: So, the AFP are aware of who the associates are who were subject to the investigation?

Ms Lynch : I don't know. They would be aware of some associates who have been on the public record, but I'm not aware of whether they know the names of the other associates.

Senator PATRICK: If the AFP were to press for those documents, irrespective of whether the associates gave permission, would the court be minded to give that to the AFP to assist them in their investigation?

Ms Lynch : As I understand it, none of the women have raised the matter with the AFP, and I understand that the AFP's practice would be to wait to be approached.

Senator PATRICK: What would be the normal process to get this document from the court by order? Would that simply be a warrant or a search warrant they'd have to—?

Ms Lynch : Senator, I'm sorry, I don't know.

Senator PATRICK: In terms of your normal dialogue with the police. If the police are conducting an investigation around the High Court, I presume there's no special immunity—

Ms Lynch : Oh, no, Senator.

Senator PATRICK: granted by the fact that you are the court. There's no equivalent issue, say, for example, as there might be with parliamentary privilege.

Ms Lynch : I don't believe so, Senator.

Senator PATRICK: Secretary, are you aware that the police were making—

Mr Moraitis : I am aware, just by way of background, but I haven't followed the intricacies of the process. As I said yesterday, we've kept arms-length from this because we're respecting the separation of powers aspect of this and Ms Lynch has explained fully what's been the process.

Senator PATRICK: So the separation of powers, you mean between—

Mr Moraitis : We don't engage with HR issues in the High Court. They're a portfolio agency and all portfolio agencies—unlike, say, for example, this morning's discussion on royal commissions, there's a closer relationship. Technically, AGD staff we would engage. At the High Court we keep arms-length and we have full confidence in the High Court's approach.

Senator PATRICK: I think the High Court is actually constitutionally separated in respect of judicial matters. This is hardly a judicial matter.

Mr Moraitis : No, but I think as a matter of a longstanding practice, we'd tend to respect that in practice as well.

Senator PATRICK: Minister, do you have a view about this—that AFP are requesting documents from the High Court, and the High Court has responded with a no at this stage?

Ms Lynch : Senator, sorry, my apologies.

Senator PATRICK: Yes, Ms Lynch.

Ms Lynch : We have gone back to the AFP to indicate that we would not have a problem if the former associates made part of their report available. We have said, if you'd like to press it, I would need to consult with the associates. I haven't formally refused a document—

Senator PATRICK: I'll rephrase—thank you for reminding me of your evidence. The AFP have requested a document, and the court is only offering to return it under certain conditions. Does the minister's representative have a view on that?

Senator Duniam: No, and I'm satisfied with what Ms Lynch has outlined and I'm happy to seek any further information in relation to any views the Attorney may hold.

Senator PATRICK: Not concerned that they're not cooperating with the police?

Senator Duniam: I don't think that's what Ms Lynch said; I think she said quite the opposite, as a matter of fact. So, I wouldn't characterise it that way at all.

Senator PATRICK: The AFP clearly have decided they'd like to see the document. They've made a request for it. You think—

Ms Lynch : Senator, the letter that I had from the AFP on 13 August noted they had not received any formal allegations or complaints but a copy of Dr Thom's report may assist them in any future inquiries—I think that's what the letter actually said.

Senator PATRICK: Just to clarify that, can you table that letter and the letter in response, please? On notice if necessary.

Ms Lynch : I'll take that on notice.

Senator PATRICK: Thank you.

CHAIR: Senator McAllister had a couple of follow-ups.

Senator McALLISTER: There was just one other matter I wanted to raise. I understand that the court was reaching out to former associates who had worked during the tenure of former Justice Heydon and I wondered if you could just update us on that process of reaching out to people who did not make a complaint but may have been exposed to the behaviour.

Ms Lynch : Some former associates and one former staff member did take up the opportunity to talk to Dr Thom. And, again, the people who spoke to Dr Thom requested privacy and confidentiality, and Dr Thom provided a report back to the court of her conversations and correspondence with those associates and staff members.

Senator McALLISTER: And were each of the associates who had worked at the court in that period contacted and offered that opportunity?

Ms Lynch : Senator, we contacted as many associates as we readily had email addresses for. Some people then got in contact with me because they'd read the reports of it, or other people had forwarded it on to them. Again, a couple of people got back to me, and it was clear that they were welcome to pass my details onto other associates that we hadn't been able to contact.

Senator McALLISTER: Thank you. And can I ask how many of those associates in addition to the six additional complainants chose to take up this offer?

Ms Lynch : There were eight former associates who spoke to Dr Thom and a former staff member in that exercise.

Senator McALLISTER: And they are in addition to the six complainants?

Ms Lynch : Of the eight former associates, some of them were commenting on the matters that were in the press and that Dr Thom had already investigated—so it is not eight new sets of—

Senator McALLISTER: Yes, I understand—so, not necessarily eight new complaints. There were six original complainants and then an additional eight people chose to provide information of some kind.

Ms Lynch : —information to Dr Thom, yes.

CHAIR: Thank you very much, Ms Lynch, for giving evidence on behalf of the High Court of Australia. We appreciate your time and you are excused with our thanks. I now call the Australian Human Rights Commission.