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Legal and Constitutional Affairs Legislation Committee
22/10/2020
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Australian Commission for Law Enforcement Integrity

Australian Commission for Law Enforcement Integrity

[20:03]

CHAIR: I now call to the table officers from the Australian Commission for Law Enforcement Integrity. Senator Carr, can I flag an idea with you? Senator Waters has questions and would love to be able to depart.

Senator KIM CARR: What a surprise! Wouldn't we all?

CHAIR: Senator Waters, you have the call. I think you should express your gratitude to Senator Carr.

Senator WATERS: Yes, I'll do that. My colleagues have some questions for subsequent agencies, but I do not. Thank you very much for allowing me to zip in first and then zip off!

Thank you for joining us tonight in person. I have some budget questions first. Budget Paper No. 2 says:

The Government will provide an additional $0.7 million in 2020-21 for the Australian Commission for Law Enforcement Integrity (ACLEI) to continue its oversight of the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre, and prescribed parts of the Department of Agriculture, Water and the Environment. This will enable ACLEI to continue its activities until it is subsumed by the Commonwealth Integrity Commission.

Has ACLEI been given any time frame for when its activities are expected to be subsumed by the Commonwealth Integrity Commission?

Ms Hinchcliffe : No, we haven't.

Senator WATERS: What transition planning is happening within ACLEI to prepare for that move to the CIC?

Ms Hinchcliffe : In our latest budget we were also provided with additional funding, in the amount of $9.994 million, relating to an expanded jurisdiction which is proposed to come in during January 2021. That is to expand our jurisdiction to four new agencies—the ATO, ASIC, the ACCC and APRA. At the moment we are planning to bring those new agencies into our jurisdiction. Along with that additional funding comes an additional 38 ASL for the organisation. This is quite a significant task for us, to upscale relatively quickly, noting the time frame for our regulations to be changed to bring these new agencies into our jurisdiction. At the moment we are planning for the recruitment activity that we need to undertake to do that. We are also engaging with the agencies that will come into our jurisdiction to explain the work that we do and the way that we do that work, and there are some discussions in relation to the regulations as well.

Senator WATERS: In relation to the regulations, do you know if there'll be a disallowable instrument?

Ms Hinchcliffe : I think that's a matter for the department. It will just be a normal regulation process.

Senator WATERS: I'm just interested in whether that needs to come to us in the parliament or whether that will be a ministerial regulation. Minister, do you know? It's not a trap; I'm just asking because I don't know.

Senator Duniam: No; I'd have to take that on notice.

Senator WATERS: Ms Chidgey, were you wanting to intercede on that question?

Ms Chidgey : It can be done by regulation, and I think, as is the usual practice, they would be disallowable. I can confirm that.

Senator WATERS: Meaning they will need to be tabled. Is there a time frame on when those regs are due to be tabled?

Ms Hinchcliffe : Again, that's a matter for the department. The time frame that has been expressed is that our jurisdiction is set to occur in January next year.

Ms Chidgey : There's not a specific time frame I can give you, but we will be working to have them in place before then.

Senator WATERS: Can I just clarify: with the 38 new ASL, are they staff that are already associated with any of those four agencies or will they be additional new staff that aren't already employed by any of those four or by you that will be needed to manage the new conglomerate?

Ms Hinchcliffe : There will be new staff for our agency. Whether they are sourced from other Public Service agencies or come from elsewhere, we will go through recruitment processes to bring new staff into our agency that haven't been previously been in our agency.

Senator WATERS: I'm just trying to understand: of the accumulation of the five agencies, will there be a expansion of personnel or just a shuffling of the chairs?

Ms Hinchcliffe : It's an expansion of our agency.

Senator WATERS: A 38-person expansion?

Ms Hinchcliffe : That's exactly right.

Senator WATERS: Thanks for that clarity. The annual report says you recorded an operating surplus of $2.2 million, because resources allocated in the 2019-20 year for the establishment of the integrity commission were not required, because the thing hasn't happened yet despite a wait of quite a few years now. Can I just clarify: is the $0.7 million in this year's budget additional to the unused funds from last year, or are those unused funds now wiped?

Ms Hinchcliffe : The $0.7 million in this year's budget goes to agencies that were previously brought into our jurisdiction some years ago. So that doesn't relate to the money that we received last financial year for the implementation of the CIC, which we didn't use because it wasn't needed.

Senator WATERS: Have you been able to keep that unspent portion for the CIC, or has that been subsumed into something else?

Ms Hinchcliffe : I'm not across all the budget rules of how that all works.

Senator WATERS: I'm not either!

Ms Hinchcliffe : I'm happy to take that on notice for you, but my understanding is you either use your money in your year or you don't.

Senator WATERS: Or you lose it.

Ms Hinchcliffe : I've just been handed something; I will have a quick look. So I'm happy to take that on notice, but what I've been told is the unspent annual appropriations will automatically be repealed on 1 July 2022. I might take that on notice and get some clarity on that.

Senator WATERS: Those years don't make sense to me. Thank you for clarifying that on notice. My last lot of questions, unsurprisingly, relates to some news today about the Border Force inquiry. The report says that the investigation into Border Force improperly paying out a milestone payment has been scrapped. Is that correct? Is the investigation still on foot or has it ended?

Ms Hinchcliffe : The investigation is still ongoing.

Senator WATERS: So the investigation is on foot. Have the hearings themselves been cancelled?

Ms Hinchcliffe : I'm conscious that this is an ongoing, active investigation, so I will just be careful about what I say at this point. There was a proposal for a series of hearings in relation to this matter. When that was put to me, I made some suggestions about us approaching witnesses to provide us with information rather than using my coercive-hearing power. We have done that in relation to some of those witnesses and have been provided information as a result of that. My investigators are continuing to investigate, and I expect that they will provide me with advice about whether they consider that any further hearings need to be undertaken in this matter.

Senator WATERS: When you request information not in a hearing context, are your compulsion powers still active?

Ms Hinchcliffe : We can request information in relation to using notice provisions, but I'm talking about where we go and talk to witnesses. It's not under compulsion; it's a conversation—just as law enforcement agencies would go and talk to witnesses—to provide us with information. If witnesses are unwilling to provide information, then—we are very lucky in ACLEI—we can go to the next step of going through a hearing process. That then becomes a coercive power, where someone must come before me; they're summonsed and they must provide evidence. As part of that process, people don't have the right not to self-incriminate themselves, in effect.

Senator WATERS: In a hearing?

Ms Hinchcliffe : That's right.

Senator WATERS: But they do, presumably, when you're just having a chat to them beforehand?

Ms Hinchcliffe : When we're just having a chat—that's exactly right. When they come to a hearing, they can't rely on rules around self-incrimination. The quid pro quo of that, or one of the protections of them losing that right, is that the information that they provide as part of that hearing cannot then be used against them in civil or criminal proceedings, except to the extent that it goes to them having provided a false or misleading statement as part of that hearing.

Senator WATERS: I understand. Clearly, the powers are much stronger in a hearing context, and you could expect to get a full picture in a hearing context. What was the motivation for desisting with the hearings and instead using that more informal process to seek information?

Ms Hinchcliffe : I don't know that I'd call it an informal process. It's a law enforcement technique to talk to people and obtain information. I'm really conscious of the fact that these hearing powers are coercive powers. They are an important power within our toolkit as investigators at ACLEI, but they are just one of the many powers that we have, or one of the many tools that we have, so, when I use them, I will be using them judiciously and making sure that there's a reason that we need to use them to obtain the information that we're looking for. So, if it is possible for us to obtain that information in different ways, then I'll be looking for an understanding of why I must use the hearing power—because, ultimately, under my act, it's a decision that I must make—rather than using a different tool.

Senator WATERS: Can I ask why you're reticent to use those cohesive powers, as a law enforcement agency?

Ms Hinchcliffe : I'm not reticent. I've said that I'll use them judiciously. As I've said, I'm conscious that they are a coercive power. I'm conscious that there are implications in terms of people's rights in terms of self-incrimination. I'm conscious there are implications in terms of the use of that evidence afterwards in any criminal prosecutions and civil proceedings as well. So those are the things I need to balance in thinking about when we might use a hearing power as opposed to something else. If there is no reason to believe that a witness won't provide us with the information then I intend to ask the witness for that information. We can always then bring them into a hearing if it turns out that they won't provide us with the information or we think that they're telling us something that's incorrect.

Senator WATERS: What's the cost of hearings? Is cost a consideration in deciding whether or not to have one?

Ms Hinchcliffe : Cost hasn't been a consideration necessarily in relation to these hearings, but they are more costly, yes. That's absolutely right, and it's more costly in terms of time and in terms of the number of people who are involved. But, as I say, I'm conscious that they are a coercive power, so I need to think through when they're appropriate. There may be times when a witness actually asks us to use our hearing power because they want to be afforded the protections in the LEIC Act, or there may be times when there are hostile witnesses or witnesses who we've spoken to who we don't think have provided us with correct information, and then hearings are totally appropriate. There'll be many times when hearings are the totally appropriate thing to do.

Senator WATERS: For the record, were you asked by anyone either in this agency or another to desist with those hearings?

Ms Hinchcliffe : No, I was not.

Senator WATERS: Was anyone in your organisation asked that?

Ms Hinchcliffe : No.

Senator WATERS: Okay. Today's media report also claims that you've previously discontinued other planned hearings, this time into Home Affairs' dealings with Crown Resorts. Is that correct, and, if so, why was that decision made?

Ms Hinchcliffe : In relation to the public hearings that were announced by the former Integrity Commissioner in relation to Operation Angove, which was an investigation relating to allegations of corruption of Home Affairs and ABF in some issues to do with Crown Casino, the former Integrity Commissioner announced in October last year that public hearings would be held in October. Those hearings were then postponed. The former Integrity Commissioner then did not reschedule those hearings. When I became the Integrity Commissioner in February this year, I asked for briefings about the matter, including where the investigation was up to. My investigators provided me with substantial briefings on the matter. I then asked them for their opinion on whether or not further hearings were required to obtain information for the purpose of the investigation. Their advice to me was that it was not. On the basis of the investigation that had occurred as well as the advice from my investigators, I made the decision that no further hearings were required in this matter.

Senator WATERS: What's your understanding of whether the Commonwealth Integrity Commission proposed by government will provide for public hearings?

Ms Hinchcliffe : In relation to the law enforcement side, which is the side that ACLEI will become, my understanding is that our powers will remain the same.

Senator WATERS: Are any of your hearings currently held in public, or are they all in camera?

Ms Hinchcliffe : We can choose to hear in public or they can be private. As I understand it, ACLEI has never had any hearings in public. The test that I need to go through is set out in the LEIC Act. So, once I've decided that there should be hearings, I then need to apply a public interest test about whether they should be private or in public, and I will apply that test every time I decide to conduct a hearing.

Senator WATERS: Can I just check I heard you properly. You said that ACLEI never held any public hearings so far?

Ms Hinchcliffe : Yes, that's my understanding.

Senator WATERS: Well, the government will be happy about that, because they don't want any public hearings for their integrity commission either, is my understanding.

CHAIR: Senator Waters, you can leave the nasty commentary aside.

Senator WATERS: I don't think that's nasty.

CHAIR: Just focus on what you can ask the witness. Speeches aren't the order of the day.

Senator PATRICK: They have happened a lot today, Senator.

Senator WATERS: And not from me. Anyway, I will move on.

Senator PATRICK: I would just make that observation as the impartial person in this room.

Senator WATERS: Thanks for your support, Rex! Moving on, a report today quoted a former Court of Appeal judge, Stephen Charles, describing ACLEI's track record as 'hopeless', blaming your small budget and a lack of will. How do you respond?

Ms Hinchcliffe : I don't agree that ACLEI is hopeless or that we have a lack of will. We are very small. There have been issues in the past with the fact that we have had a huge backlog of investigations. A lot of work has been done in the last two years to deal with that. We are working on being able to focus on serious and systemic corruption, which is what the LEIC Act tells us we need to focus on. We have also put in place a range of new processes to make sure that we are targeting those properly. There have been comments previously about the timeliness of ACLEI investigations, and we have put in some processes to work on those, including having 90-day reviews of our investigations and implementing an operations board so that we can move resources around the organisation easily to be able to focus on those investigations that we need to focus on at the time.

Senator WATERS: Has your desire to, as you say, deal with the backlog over the last two years led to expediting investigations or an otherwise less-than-thorough approach to investigations?

Ms Hinchcliffe : I've only been the integrity commissioner since February this year—

Senator WATERS: You were the deputy before, though, were you not?

Ms Hinchcliffe : No, I was the Deputy Commonwealth Ombudsman.

Senator WATERS: I see. My apologies.

Ms Hinchcliffe : I have only been in the organisation for the last nine months or so. That's a process that's occurred, as I said, over the last two years. I'm not aware that it has meant that matters have been expedited to a point where it is not appropriate. It is appropriate for us to be timely in our investigations.

Senator WATERS: You've noted that it's important to direct your limited resources to serious and systemic corruption. Will the additional funding allocated in the budget allow you to undertake more investigations or will it be used to do more comprehensive investigations?

Ms Hinchcliffe : It will allow us to do more investigations, but that's because we will have more agencies within our jurisdiction. We expect that we will receive more referrals.

Senator WATERS: How will that help you address the backlog?

Ms Hinchcliffe : The work has already been done to address the backlog.

Senator WATERS: That's cleared now, is it?

Ms Hinchcliffe : We're down to 67 corruption issues that we're currently investigating. I think that is a more sustainable amount for us. We will continue to find ways to make sure that we're keeping on top of that.

CHAIR: It's impressive, given the short time you have been in the rule.

Ms Hinchcliffe : I don't take credit for that; there was a lot of work done on that before I arrived.

CHAIR: A modest leader.

Senator WATERS: Could you take on notice, please, the nature of those inquiries that have been completed—that backlog, as you called it—and whether there was a significant reduction in resources applied to each of them in order to expedite them? It is not a very well-worded question, I know, but I'm trying to ascertain whether they were sped up to simply get them off the list or whether they were appropriately and comprehensively handled, given that your agency has not had much funding and, as you say, is small.

Ms Hinchcliffe : I will see what I can find for you on that. I'm conscious that our data has not always been fabulous. That is an issue that we are dealing with at the moment as well. What I mean by that is the way we record when we either complete a matter or discontinue a matter. I have got a power to discontinue investigations as well. The way we record, particularly when they are discontinued, is on the basis of the limbs of the test in the LEIC Act. That doesn't necessarily provide you with the sort of detail that I think you're asking for, so let me see what I can do. It may be that what I can provide you with is something that shows you the more recent past rather than going back the full two years, but I will have a look at that for you.

Senator WATERS: As much as you can would be really helpful.

Ms Hinchcliffe : Of course.

Senator WATERS: Thank you very much. You've mentioned that power to discontinue. How many times have you exercised that?

Ms Hinchcliffe : We've just answered some questions in relation to that for the ACLEI PJC. Since I've been integrity commissioner, I have reconsidered under section 42 that a further investigation is not warranted on 16 occasions, and I have decided that the investigation is complete. When an investigation is complete, it then moves to a reporting process under section 54 of my act. We have a backlog of reports at the moment, but I've made that decision in 14 cases.

Senator WATERS: So 16 discontinuations and 14 completions?

Ms Hinchcliffe : That's right.

CHAIR: Senator Waters, I'm sorry to interrupt. You've been going for 20 minutes. Do you have much left?

Senator WATERS: You'll be pleased to hear I have one more question.

CHAIR: Great. Good job.

Senator WATERS: Various legal experts, including eminent former judges, calling for a federal corruption watchdog have highlighted the importance of a broad jurisdiction and the ability to hold public hearings and act on tip-offs from members of the public. Do you agree that those elements are important to uncover, expose and deter corruption?

Ms Hinchcliffe : I can receive referrals from members of the public, and I can hold hearings, and we do consider material that comes from members of the public and we do hold hearings.

Senator WATERS: The question was: do you agree those elements are important to uncover, expose and deter corruption?

Ms Hinchcliffe : I think I've answered the question. We do use those things in relation to our jurisdiction.

Senator WATERS: So was that a yes?

CHAIR: Senator Waters, that was two—three now!

Ms Hinchcliffe : I think I've answered. We do use those in relation to our jurisdiction.

Senator WATERS: Okay. Thanks, Chair.

CHAIR: Thank you, Senator Waters—well, thanks, really, to Senator Carr for letting you have the early mark. Senator Carr, you have the call.

Senator KIM CARR: Thank you very much. I appreciate that Senator Waters has asked a number of questions about the material that appeared in the press today. Many of the assertions made in the press today you're refuting—that's correct, isn't it?

Ms Hinchcliffe : That's correct.

Senator KIM CARR: Do you want to take the opportunity to give us a detailed assessment of where their report is incorrect?

Ms Hinchcliffe : I'm conscious, as I've said, that the matter is currently under investigation. I have put together a statement that was published with the report. That really is my statement in relation to the matter.

Senator KIM CARR: Righto. There may be others, but I'll just go through your responses to the questions that Senator Waters has asked and perhaps put some other matters on notice where there are overlaps that we have not covered properly. I go to the broader issue that seems to be at the nub of the concerns. In your annual report—and, of course, you made references to this in your statement in the newspapers today—you say:

… s 54 reports … are an important mechanism by which I explain the investigation we have undertaken and our findings.

In your statement to the newspapers, you say:

Another important part of my role is to ensure that there is transparency about ACLEI's investigations—and to that end, since commencing as IC I have provided 8 final investigation reports to the Attorney-General and have published details of 5 reports …

Are you able to give us any indication of why the transparency of these reports that you provide is important in the fight against corruption? Why do you think this is a superior method?

Ms Hinchcliffe : A superior method to what?

Senator KIM CARR: To the use of the more coercive functions that you have available to you.

Ms Hinchcliffe : I wouldn't compare them. I wouldn't say that one is superior to the other. Under the act, I am required to report to the Attorney. That's an important mechanism by which I explain what we have done. The section 54 provision in the act doesn't then provide for me to provide those reports publicly. I have a separate section in the act that allows me to put material before the public, and I use that section, after I've gone through a secondary procedural fairness step, to put those reports before the public.

I think it's a very important transparency mechanism. It's important for people to know the work that we have done, particularly when an investigation is completed. It's important for us to be able to explain what we've done and what we've found. As I said in the annual report, I think that it's important when we've completed an investigation, even when we haven't found corruption, because it goes to show what we're seeing in the system.

Senator KIM CARR: There's a question on notice that you've provided to the Parliamentary Joint Committee on ACLEI. You've indicated that between the time you commenced, which was on 10 February this year, through to 13 September you discontinued 28 corruption investigations out of the 70 active investigations that were underway when you commenced.

Ms Hinchcliffe : No, Senator—

Senator KIM CARR: That's not right?

Ms Hinchcliffe : No. Under section 42, I've reconsidered 16 and decided that no further investigations were warranted. But investigations have been completed in 14 and they're awaiting a section 54 report.

Senator KIM CARR: I see.

Ms Hinchcliffe : There are different mechanisms under my act. At any time I can reconsider a matter, and that is particularly useful if you commence an investigation but, as you're investigating, you find out either that—

Senator KIM CARR: Sorry—I've got the idea. You're saying that 16 were discontinued?

Ms Hinchcliffe : Yes, that's right.

Senator KIM CARR: Were they discontinued without a report?

Ms Hinchcliffe : That's right.

Senator KIM CARR: Can you explain to me why that was done—16 without a report?

Ms Hinchcliffe : That's right, because under the act the requirement to provide a report comes when the investigation is completed. The 16 that were discontinued were not complete investigations. That was because we'd got to the stage where we realised there wasn't corruption, or there were no further leads for us to consider or there was one case—and we've separated that out—which I discontinued because the person was not a staff member of a LEIC Act agency, so we didn't have jurisdiction.

Senator KIM CARR: Why wouldn't you make a report to that effect?

Ms Hinchcliffe : Often what I do is produce an information report to provide to the agency, explaining what we have found in the part of the investigation that we've done.

Senator KIM CARR: So 13 of the 16 were actually investigations that were conducted into Border Force—is that right?

Ms Hinchcliffe : Into Home Affairs, not just Border Force.

Senator KIM CARR: Into Home Affairs?

Ms Hinchcliffe : That's right.

Senator KIM CARR: So you have provided some sort of report to Home Affairs?

Ms Hinchcliffe : In relation to the matters that we've discontinued, often—and I'm not saying that I've done that in relation to all of them—we think about what value we bring to the system and we'll put together an information report on issues in relation to it and send that to the agency.

Senator KIM CARR: I see. As I understand it, in section 42(3) there are four permitted reasons for you to decide to take no further action. They are if the corruption issue is being investigated by another body or:

… the referral of the allegation, or information, that raises the corruption issue is frivolous or vexatious; or

(d) the corrupt conduct to which the corruption issue relates has been, is or will be, the subject of proceedings before a court; or

(e) further investigation of the corruption issue is not warranted having regard to all the circumstances.

Is that correct?

Ms Hinchcliffe : That's correct.

Senator KIM CARR: So discontinuing the corruption investigation under section 42 doesn't require a written report, it's only following the completion of an investigation, subject to section 56—is that right?

Ms Hinchcliffe : Completion under section 54—that's right.

Senator KIM CARR: Fifty-four, not 56?

Ms Hinchcliffe : Not 56; 54.

Senator KIM CARR: Righto. So 16 of the 28 corruption investigations discontinued this year were all under section 42 on the basis that further investigation of the corruption issue was, in your view, not warranted in regard to the circumstances. Have I understood that correctly?

Ms Hinchcliffe : I have discontinued 16 matters—that's inside the integrity commission—on the basis that further investigation is not warranted. That's right.

Senator KIM CARR: Alright, that's that. Let me just be clear: I'm not certain whether issues were raised by Senator Waters in regard to Crown. Did you ask questions with regard to Crown, Senator Waters?

Senator WATERS: I did briefly.

Senator KIM CARR: Yes, I thought you did. The allegations that were raised in regard to Crown—let me just go through the substance of that, and perhaps you can correct me if I make any errors. Obviously, these are extraordinarily serious matters. ACLEI investigators did not speak to or even contact the former Crown employee turned whistleblower who spoke to a 60 Minutes program. Is that true or false?

Ms Hinchcliffe : That's true.

Senator KIM CARR: ACLEI investigators did not contact a senior Australian migration official or the Crown senior manager who was mentioned in TheSydney Morning Herald article in relation to Crown wanting to bring high rollers to Australia who had submitted fraudulent documents in their visa applications, and, instead, ACLEI concluded that there was no corrupt conduct on the basis of the review of emails and visa processing notes.

Ms Hinchcliffe : Yes. Are you reading from our QONs that we provided? I'm happy to table them.

Senator KIM CARR: I want to understand that the notes I've been given—I want to make sure I've understood this issue correctly.

Ms Hinchcliffe : It is useful for us to table the QONs?

Senator KIM CARR: You can tick them off your list, or I can tick them off my mine—it doesn't matter, so long as we have an agreed set of presumptions here. What do you want to do? Do you want to go through it?

Ms Hinchcliffe : These were QONs that we have just provided to the PJCACLEI, and I'm happy to table them.

Senator KIM CARR: Would you?

Ms Hinchcliffe : Of course.

Senator KIM CARR: If you could do that, that would be very helpful. Obviously, I need to confirm with you that investigators did not contact a single person from Home Affairs who had acted or had worked as part of the team that had acted as a single point of contact for Crown, despite the centrality of the issues of their corruption investigation. Is that true?

Ms Hinchcliffe : It's true that we did not contact a person who had been on that single point of contact. There were allegations in the media that there had been a single point of contact. We found evidence that there had been a single point of contact, and we considered whether or not that then raised a corruption issue. We have expressed in the report in some detail the fact that, while there was a single point of contact and that was definitely a different level of service for Crown supported visa applications—that it was a preferential service—that it was a reasonable service delivery to be offering to provide, and, while it was preferential, it did not indicate corruption was engaged in by Home Affairs staff members.

Senator KIM CARR: Is it correct that you didn't review any bank records at all?

Ms Hinchcliffe : In relation to Home Affairs employees?

Senator KIM CARR: Yes.

Ms Hinchcliffe : That's correct. Our report in relation to this investigation sets down in some detail the three corruption issues that we investigated in this matter and sets out the investigation steps that we took in relation to those.

Senator KIM CARR: What is your view as to the status of these inquiries now?

Ms Hinchcliffe : The investigation is completed. We have prepared our section 54 report, provided it to the minister and the Secretary of Home Affairs and released a redacted copy into the public, taking into account the public interest test that I need to consider in the act. I am satisfied that, in relation to these three corruption issues that we were investigating, there is no evidence of corruption. So, that is: whether there was corruption by Home Affairs staff in relation to the provisions of visas for Crown VIPs, whether there was corruption by ABF officers in relation to off-terminal clearances of Crown VIPs at the border, and whether there was corruption by a particular ABF officer who had secondary employment in relation to a junket tour operator. However, I have found a number of issues that go to administration that occurred in relation to each of the three corruption issues. There were matters of administration that I have called out in relation to the arrangement that Home Affairs had with Crown, in relation to support the visas; there were matters of administration that related to the off-terminal clearances that occurred; and there were matters of administration that related to the former ABF staff's employment with the junket tour operator. I've called those out in my report. But what we haven't found is evidence of corruption. Corruption is the issue that I can investigate.

Senator KIM CARR: Thank you very much. I'll put the other questions on notice.

CHAIR: All good, Senator Carr?

Senator KIM CARR: Yes.

CHAIR: Thank you very much. Senator Patrick.

Senator PATRICK: Thank you. I want to be really fair about this, Ms Hinchcliffe. In the process of preparing for these proceedings, some allegations were made to me that your actions in relation to not following the advice of counsel in the matter of suspected corruption, in relation to the Cape class vessels, was improper or due to improper influence. I'm going to ask you a series of questions and this is an opportunity to allay any fears in relation to that. That's my line of inquiry. I want to be really open and honest with you about the way in which I approach this. Firstly, I just want to understand. I heard the investigation is ongoing.

Ms Hinchcliffe : It is ongoing—yes.

Senator PATRICK: Thank you. Regarding the counsel that you sought advice from, can you provide me the name of the chambers? Was it New Chambers?

Ms Hinchcliffe : I think it's New Chambers—yes. I'll be very clear: I did not seek advice from the counsel. Counsel was engaged in this matter and was engaged before I became Integrity Commissioner. I received a briefing from counsel in relation to the progress of the matter and, as part of that briefing, counsel discussed with me a strategy in relation to some further private hearings. I put a separate strategy to counsel in relation to a number of those witnesses and dealing with them, as I just discussed with Senator Waters. We then worked together in relation to that until we came to a point where counsel and I had a divergence of views. Counsel indicated to me that they needed to consider their engagement. I asked them to do so and they indicated to me that they would return the brief.

Senator PATRICK: Who was lead counsel?

Ms Hinchcliffe : The counsel was Jonathan Hyde.

Senator PATRICK: He's actually pretty experienced. He's been in the bar since 2004.

Ms Hinchcliffe : That may well be. I don't know his—

Senator PATRICK: You can understand that, from my perspective, he's very experienced. He's done a lot of work for a lot of different agencies of government and he's well respected. That, of course, raises a concern in my mind. Are any other counsels working on the brief?

Ms Hinchcliffe : There was a junior counsel as well.

Senator PATRICK: Was that Diana Tang?

Ms Hinchcliffe : It was, yes.

Senator PATRICK: Thank you. In your decision-making in relation to this, have you spoken to the Attorney-General, Mr Porter?

Ms Hinchcliffe : In relation to making that decision?

Senator PATRICK: This particular investigation.

Ms Hinchcliffe : No.

Senator PATRICK: Anyone in his staff?

Ms Hinchcliffe : No.

Senator PATRICK: Let me go to some of the background associated with this investigation. Some of it has been aired publicly. It relates to the Cape class patrol vessels built by Austal. Is that correct?

Ms Hinchcliffe : That's right.

Senator PATRICK: Back in 2015-16, my understanding is there were significant issues with the vessels, with the stern tubes, or stern glands. They were, in fact, fundamentally flawed. There were deployment boats, or what are known as RIBs, that were too heavy and had to be replaced. The boats were not fit for purpose and Border Force did not want to make the payment. Is that your understanding?

Ms Hinchcliffe : This is an ongoing investigation that we are undertaking in relation to the procurement in these matters. I'm going to be careful now about how much I say about that.

Senator PATRICK: Are you advancing a public interest immunity in respect of not answering that question?

Senator KIM CARR: Chair, I think this is quite a delicate matter. It needs to be handled with some care given the sum of money that's involved and the status of this particular project.

Ms Hinchcliffe : Senator, if you are asking me if this is a serious matter and a serious investigation, then the answer is 'yes'.

Senator PATRICK: Sure. I'm just asking: are you advancing a public interest immunity? That's not an offensive question; it's a 'yes' or 'no' answer.

CHAIR: The witness has been answering your questions so far. She hasn't declined to answer anything. There's no need for her to claim public interest immunity at this point.

Senator PATRICK: Are you aware of the facts I just put to you?

Ms Hinchcliffe : Sorry, Senator, you'll need to say it again to me.

Senator PATRICK: There was an issue with the vessels, with the stern glands or stern tubes. The deployment boats, or the ribs that they carry, were too heavy. The vessels were not fit for purpose and Border Force did not want to make the associated payment that was claimed by Austal.

CHAIR: That's not a question; that was a list.

Senator PATRICK: They were a set of facts. I just asked was she aware of those?

Ms Hinchcliffe : I'm aware of allegations that go to this investigation. I think, probably, that's what I can say about this.

Senator PATRICK: Again, I ask the question: are you aware of those facts? I don't mind if you say, 'I'd like to defer that to the minister.'

Senator KIM CARR: I think that's a good idea.

Senator PATRICK: I'm being very, very careful on process—

Ms Hinchcliffe : Senator, I'm really sorry. I'm just conscious that this is an ongoing investigation. There are allegations in relation to the procurement—

Senator PATRICK: I understand. It's a legitimate public interest immunity to say that—

Ms Hinchcliffe : and I am conscious of that.

Senator PATRICK: It is a legitimate public interest immunity to say that—

Ms Hinchcliffe : The other option is that you put those matters—

Senator PATRICK: Excuse me, just for a second. It's a legitimate public interest immunity to say that you think it may prejudice the investigation.

Senator Duniam: Senator Patrick, what we might do is take this on notice, and if it is required to advance a PII claim then we'll do so.

Senator PATRICK: Thank you. I just want to be very careful about the process we go through. It's been put to me that at the time Austal were, in fact, quite desperate for payment. They had basically entered into a contract where they had underbid. They were desperate for payment, and they were lobbying politicians very hard to make sure that they got their payment. Has that been brought to your attention?

Ms Hinchcliffe : Senator, we'll take that on notice.

Senator PATRICK: Thank you, Minister. I'm not trying to press anything that you're not comfortable with. Are you aware that the Liberal Party made donations to Austal in the period prior to 2015-16?

Senator KIM CARR: The Liberals didn't donate; it went the other way.

Senator PATRICK: Sorry, my apologies. Thank you, Senator Carr; that's very helpful. That is: Austal made donations to the Liberal Party, prior to 2015-16.

Ms Hinchcliffe : I think there was something mentioned about that in the media today. I have no direct knowledge of that.

Senator PATRICK: We're now entering into a political space. My understanding is that post 2015-16, Austal changed their strategy in terms of lobbying and making payments to the Liberal Party and the Labor Party. The method by which they did that was instead of accepting donations, members of parliament would attend dinners that were hosted by Austal and significant payments were made in respect of the price to attend. Are you aware of that?

Ms Hinchcliffe : No, I'm not aware of that. That's not a matter that I could investigate. My jurisdiction relates to corruption allegations in relation to law enforcement staff members.

Senator PATRICK: I'm just trying to tie a few things up, so I'll ask a series of questions. It's been put to me that some of the people who attended some of these dinners that were hosted by Austal, and who paid a significant fee, included: the former minister, Bishop; Senator Cormann; Mr Morrison, the member for Cook, in company with Mr Ben Morton, also an MP; Mr Dutton, the member for Dickson; Senator Cash; Senator Reynolds; Senator Birmingham; and Mr Porter, the Attorney-General, at the request of John Rothwell, who's the non-executive chair of Austal. Are you aware of any of those?

Ms Hinchcliffe : No, I'm not aware of any of this, Senator. Again, as I say, it's not something I can investigate. My jurisdiction relates to allegations of corruption of staff members of law enforcement agencies.

Senator PATRICK: So, at the end of the day, if indeed there was pressure put on Border Force, which you have jurisdiction over, by politicians, that's not within your jurisdiction?

Ms Hinchcliffe : As I said, the things I can investigate are allegations of corruption by staff members of law enforcement agencies. So, if there are allegations of corruption that a law enforcement agency staff member has engaged in corruption, then I can investigate.

Senator PATRICK: Having triggered jurisdiction, does that allow you to wander up and say, 'Okay, decisions made by Border Force may have been influenced by very senior politicians, by ministers,' for example? You understand the issue of triggering jurisdiction and then operating beyond?

Ms Hinchcliffe : I do. My investigation would be in relation to, as I said, the allegation of corruption by the law enforcement staff member.

Senator PATRICK: I'm just saying, noting this ties in a range of different politicians—these are facts that have been put to me, and I suspect—

CHAIR: I don't think we can call them facts at this point; they're not much more than allegations or a generous use of parliamentary privilege.

Senator Duniam: The Integrity Commissioner has outlined what her jurisdiction is. You've put a whole range of assertions on the record and asked whether that might well be contemplated. If there is anything more to this, I would suggest, Senator Patrick, putting it on notice, given the nature of these issues, so the Integrity Commissioner can deal with it in the way that was suggested earlier because I don't see where else this is going.

Senator PATRICK: Maybe that's not the case, if indeed there is no jurisdiction to look at the aspects that I've raised tonight. A reasonably reliable source for me—I wouldn't sit here and make a claim about this. These different people can obviously answer any questions related to this—did they attend dinners; were they paid Austal money for the pleasure of attending the dinner? It ties back into the allegation that's been put to me—and I want to be really fair to you—that someone's lent on you, someone's put pressure on you. There are so many very senior people involved in this that you simply don't want to go there.

Ms Hinchcliffe : I completely—

CHAIR: Someone pass the tin foil!

Senator PATRICK: No, I'm giving you the opportunity. I'm trying to be fair.

CHAIR: At the moment, you've really lent—

Senator Duniam: I think, to put an allegation like that on record, it's not fair to do it in that way, Senator Patrick.

CHAIR: If you had some shred of evidence then you might be justified, but right now you've done nothing more than, I would suggest, abuse parliamentary privilege with what is an awful lot—

Senator PATRICK: Respectfully, I've asked questions in the chamber—

CHAIR: I can ask questions that carry awfully serious connotations or imputations, and they can be quite damaging to the reputations of people who are otherwise of great integrity. Senator Patrick, I suggest you should tread very carefully. If you have evidence to support any of the allegations you've made tonight, you're invited to put it before the committee now. If you don't have evidence—and I notice the clock has had you going for 15 minutes—I'd suggest that you move onto something for which you do have evidence or wrap it up.

Senator PATRICK: Chair, I'm not going to be shut down by you, and I remind you of standing order 26(4). I will continue my questioning until such time as I've completed my questions—

CHAIR: And I remind you of the law of defamation. You may not be able to be sued in this room, but if you're saying things in here that you wouldn't have the courage to say outside—

Senator PATRICK: I will ask questions in here that might not be able to be asked outside of this parliament, but that's the point of privilege. I've simply asked questions about knowledge as to certain politicians attending dinner.

Senator HENDERSON: I have a point of order. It might be stretching it to say that this is a point of order, but if you can indulge me, Chair—

CHAIR: There's an honesty in that!

Senator HENDERSON: Senator Patrick may not be aware or may have forgotten that we have passed a resolution in relation to time management. So, it's not open to him to—

Senator PATRICK: The resolution is superseded by the standing order. You should know that. You've been around this place for long enough.

Senator HENDERSON: It's not open to him to ask questions for an unending amount of time.

CHAIR: Order! Senator Carr.

Senator KIM CARR: I think Senator Patrick's entitled to put his questions. He's got to take responsibility for the assertions he makes. And if he wants to assert the standing orders, as he has, he can do so, or we'll be here until 11 o'clock.

CHAIR: That's his right.

Senator KIM CARR: But I just draw that to your attention. He's correct in the interpretation of the standing orders. However, I don't think we're necessarily going to take this very far, Senator Patrick, because the officer really can't answer any question, and the minister I assume has taken anything on notice in regard to the specific claims in regard to matters of executive privilege.

CHAIR: The commissioner said she doesn't know, and she's entitled to say that.

Senator KIM CARR: No. In regard to her investigation, she doesn't want to say anything. And other matters really are nothing to do with this agency.

CHAIR: No, and in circumstances where it has nothing to do with the agency, it's nothing more than a slander. So, Senator Patrick—

Senator PATRICK: Then can I ask another question, please?

Senator KIM CARR: Madam Chair, I don't know if it's going to be helpful to make those suggestions. The point is, Senator Patrick, I don't know if we can take this any further in any—

Senator PATRICK: I only have one further question.

Senator HENDERSON: And this is a very important point to make. There's also no evidence. We don't even know the allegations made in relation to government members of parliament. I think that's highly disorderly as well, Chair.

Senator KIM CARR: And Madam Chair, you're far too sensitive about politicians having dinner with Austal. This is not an unknown proposition, particularly in the shipbuilding industry. I'd just say to you: there's nothing in that. I don't think there's anything at all in that.

CHAIR: There's nothing in that, but the suggestion that Senator Patrick made is much more serious than that, and that it's been used to lean on people, and that is serious.

Senator PATRICK: From an oversight perspective, I'm entitled to explore that. I have one more question that I'd like to ask, just to clarify in relation to jurisdiction. If a law enforcement officer was corrupted by a politician, do you have jurisdiction to investigate that?

Ms Hinchcliffe : I have jurisdiction in relation to the law enforcement officer, yes.

Senator PATRICK: But in circumstances where they are corrupted by a politician?

Ms Hinchcliffe : In relation to the law enforcement officer, that's right. As long as they come within the definition of a staff member of a law enforcement agency, that's what my jurisdiction is.

Senator PATRICK: So, you are capable, as the commissioner, in finding that a politician has corrupted an official?

Ms Hinchcliffe : Capable of finding corruptions against the staff member. That's who's in my jurisdiction.

Senator PATRICK: Okay.

CHAIR: That was your last question, was it?

Senator PATRICK: No. I just want to be very fair.

CHAIR: Oh, really! Now?

Senator PATRICK: I said at the start that some allegations had been made, and I'd just offer you an opportunity to respond in relation to this. You're very comfortable that you are conducting this in a proper manner and there's nothing untoward to talk about?

Ms Hinchcliffe : Yes, absolutely, and I completely reject any allegation that I've been in any way leant on or I'm acting without integrity in relation to this or any other investigation.

Senator PATRICK: Okay. Thank you.

Ms Hinchcliffe : I take my integrity very seriously. I have operated in integrity work for most of my career, including as a criminal lawyer at the CDPP and including as the Commonwealth Deputy Ombudsman. And I completely reject any allegation that I am without integrity.

Senator PATRICK: Thank you. Chair, I just thought it would be fair to offer Ms Hinchcliffe that opportunity.

CHAIR: I think fairness departed this committee hearing a little while ago—

Senator PATRICK: Perhaps this morning, actually.

CHAIR: For the record, I will say: Ms Hinchcliffe, I have followed your career for something like a decade, and you have always conducted yourself in a way that can be described as with integrity.

Senator HENDERSON: Chair, do you mind if I ask one clarifying question, particularly given the questioning from Senator Patrick.

CHAIR: You have the call.

Senator HENDERSON: In light of some, I think very improper, suggestions that have been made by Senator Patrick, Ms Hinchcliffe, has anyone in government asked you to take any specific actions in relation to this investigation or in relation to any other investigation of yours?

Ms Hinchcliffe : No, and that would be entirely improper for them to do so. I'm an independent statutory officer. I operate under my act and the powers that are given to me there. I need to consider the way that I operate and the way that I use my powers, and that is a matter that I need to then take responsibility for, and that is exactly what I've done in this case.

CHAIR: Thank you, Ms Hinchcliffe. That was helpful.