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Legal and Constitutional Affairs Legislation Committee
23/05/2012
Estimates
ATTORNEY-GENERAL PORTFOLIO
Federal Court of Australia

Federal Court of Australia

[14:58]

CHAIR: I welcome representatives of the Federal Court to our estimates consideration. Do you have an opening statement?

Mr Soden : No, thank you.

Senator BRANDIS: Mr Soden, do you have a copy of Budget Paper No. 2, budget measures, with you?

Mr Soden : In about five seconds. Any particular page?

Senator BRANDIS: Page 87.

Mr Soden : I am not sure we are talking about the same document.

Senator BRANDIS: It is budget measures. Budget Paper No. 2, 2012-13, in the blue.

Mr Soden : No, I have not seen that before.

Senator BRANDIS: It is the summary of all the measures that are in the budget, including the ones that affect your court. If you open it up at page 87, I thought that was a convenient point of entry into the topic I wanted to deal with. You see the subheading: 'National Native Title Tribunal reform—increased efficiencies'.

Mr Soden : Yes, I am aware of those figures.

Senator BRANDIS: It is only a couple of paragraphs. Just read that. Just remind yourself of the issue.

Mr Soden : Yes.

Senator BRANDIS: The effect of this measure will be to absorb all of the functions of the National Native Title Tribunal over claims mediations into the Federal Court, won't it?

Mr Soden : Yes, that is correct.

Senator BRANDIS: Are you familiar with the Native Title Act and, in particular, the provisions of the Native Title Act which confer a jurisdiction on the National Native Title Tribunal to deal with the mediation of native title claims?

Mr Soden : Not specifically, no.

Senator BRANDIS: Might I point out to you—you might be interested in this, Senator Crossin, because I know you take a great interest in native title matters—one of the principal functions, arguably the most important function of all, of the National Native Title Tribunal is the mediation function and the reconciliation of the interests of claimants, landowners and other stakeholders such as miners, for example, of native title claims. That process in particular relies upon the development of Indigenous land use agreements whereby the rights and interests of the various stakeholders are defined and reconciled.

Mr Soden : Yes, I am aware of that.

Senator BRANDIS: It is that entire mediation function, which, where it is successful, as it is in most cases, culminates in an Indigenous land use agreement, that is being transferred from the National Native Title Tribunal to your court.

Mr Soden : I would make this point of clarification. Over a number of years it has not only been the Native Title Tribunal that has undertaken the mediation function. You might recall the 2009 amendments to the Native Title Act that removed the requirement for all matters to be referred from the Federal Court to the tribunal for mediation.

Senator BRANDIS: That is right.

Mr Soden : So, since that time, as a result of those amendments, there has been a much greater clarity of the responsibility of all of the proceedings. In essence, it shifted from the tribunal to the Federal Court, keeping in mind they were always proceedings in the court. There has been an increase in the case management and related mediation activity and probably ILUA oversight activity by the court in relation to matters that had previously been the responsibility of the tribunal. In one sense, you are correct in what you say, in the sense that there is a transfer of mediation and related ILUA responsibility from the tribunal to the court, but I would like to make that qualification that it is not happening in an environment where the court has not been involved increasingly in the last couple of years.

Senator BRANDIS: In the last couple of years though, even since the 2009 amendments, the Federal Court's involvement in Indigenous land use agreements has been very limited, has it not? In fact, there is not a single Indigenous land use agreement—not one—which is the product, exclusively, of mediation by the Federal Court?

Mr Soden : I cannot answer that categorically. I just do not know, I am sorry.

Senator BRANDIS: Well, I can tell you, Mr Soden, that there is not a single Indigenous land use agreement in operation today that has been negotiated or mediated exclusively by the Federal Court. Since 2009 the Federal Court's involvement in the mediation functions, they are the four exclusively in the hands of the National Native Title Tribunal, has been extremely limited.

Mr Wilkins : On the other hand, it has gone up to a four times higher rate since those reforms came in. And the number of determinations—

Senator BRANDIS: From a base of almost nothing.

Mr Wilkins : Yes, but the number of consent determinations has gone up dramatically since the Federal Court took it over. The fact is that that has involved a number of ILUAs and consent determinations.

Senator BRANDIS: Do you understand that there is difference between a settlement of a piece of disputed litigation, which is a commonplace in every court, and an Indigenous land use agreement, which is much more than a settlement of litigation?

Mr Wilkins : Yes, I do, Senator. I negotiated the Mabo settlements when I was working for John Fahey in New South Wales, so I understand the native title legislation.

Senator BRANDIS: Okay. In the latter category, the Indigenous land use agreement, is much more than merely a settlement.

Mr Wilkins : That is true.

Senator BRANDIS: It is a land management scheme.

Mr Wilkins : Well, yes, it can be that. I have negotiated several; I know how they work.

Senator BRANDIS: Okay. So to say that there has been a greater rate of settlement merely—

Mr Wilkins : There has been; it has been quite dramatic, actually.

Senator BRANDIS: To say there has been a greater rate of settlement does produce the conclusion that there has been a greater rate of agreement on Indigenous land use agreements, which are much more than merely settlements.

Mr Wilkins : That is true, but they have been consent determinations that have gone up. They are at a rate of four times higher than prior to those reforms coming in.

Senator BRANDIS: Can you give us those figures, please.

Mr Wilkins : In that 16-year period, between January 1994, when that act first came in, and the end of 2009-10, which is when we brought in the reforms, the court has handed 86 consent determinations. That is in that period between 1994 and 2009.

Senator BRANDIS: Just pausing there: not one of them was Indigenous land use agreements.

Mr Wilkins : Sorry?

Senator BRANDIS: Not one of them was Indigenous land use agreements.

Mr Wilkins : They are consent determinations, so there could be an ILUA underpinning the consent determination.

Senator BRANDIS: There could be, but I am putting it to you that not one of them was.

Mr Wilkins : Okay. And then there were 43 consent determinations in the period following that. So, from 2010 to date, we have now had 43 consent determinations. You might say that they are not the low hanging fruit necessarily either. So there has been a dramatic increase through those changes to the role of the Federal Court. All I am saying is that the Federal Court changes have made a dramatic change. The changes now to the Native Title Tribunal are meant to underpin and reinforce those changes to the Federal Court legislation. We should expect a continuation of this type of quite dramatic improvement in consent determinations. Having been involved with some of these ILUAs, they do not necessarily have to have anything to do with the Native Title Tribunal. There made need to be a mediation; it could be simple negotiation underlying some of these things. So there is not a sort of one-size-fits-all. We did one up the North Coast of New South Wales that involved complex multiple negotiations over a long period of time, but no mediation was required there. But in other cases you do need to get conciliation or mediation involved.

Senator BRANDIS: Indeed. And the Native Title Act, importantly, creates the National Native Title Tribunal and vests it with the function of mediating between the stakeholders.

Mr Wilkins : True, but not exclusively so.

Senator BRANDIS: I said 'importantly' not 'exclusively'. But you would agree with me that that is one of the most important functions of the National Native Title Tribunal?

Mr Wilkins : Yes.

Senator BRANDIS: When that function is fulfilled by the National Native Title Tribunal, it usually takes the form—I accept that there is not one-size-fits-all—of an Indigenous land use agreement, which is more than merely a consent determination, more than merely the settlement of a piece of litigation, but the development of what I call a land management scheme?

Mr Wilkins : I think that is true, Senator. The way that the Federal Court is operating is to enhance that process, to point people in the direction of mediation and to try and sort this out by using a little bit of coercion as well as pointing people in the direction of mediation. The important thing is to use some of those powers of the court to direct people in relation to mediation, which hitherto had not really been done. People had turned up for directions hearings and it had sort of gone around and gone out and nothing much has happened.

Senator BRANDIS: The policy of the Native Title Act—particularly having regard to the sensitivity of the issues with which that tribunal deals and the interests of Indigenous people but also the sensitivities of the other stakeholders as well—deliberately, as a matter of policy, favoured the encouragement of mediation to produce a consensual resolution of complex land use issues which, as I said before and I understood you to agree with me, where successful, culminated in an Indigenous land use agreement. It is more than merely a settlement of litigation; it is a scheme which governed the management of that land for years and decades—indeed, indefinitely into the future. That was the whole point of the Native Title Act—to encourage mediation and consensual resolution—was it not?

Mr Wilkins : Yes, where possible, that was certainly to be encouraged.

Senator BRANDIS: Therefore, Mr Wilkins, I must say, with great respect, your according almost equivalence between a consent determination in the Federal Court and an Indigenous land use agreement seems to me to almost entirely miss the point that a consent determination is not an Indigenous land use agreement and the arrival at a consent determination is no indication that the process has succeeded optimally or well.

Mr Wilkins : I disagree with the last proposition; I agree entirely than a consent determination is not the same as an ILUA, but it is a precondition or, if you like, it is a necessary condition for having an ILUA. The consent determination is, if you like, an indication that there has been a determination in that sense. Probably, most of these consent determinations are ILUAs, so there has been a mediation process.

Senator BRANDIS: My great concern here—and I will ask the tribunal as well when they come forward—is that the government, in what is described in Budget Paper No. 2 as an 'efficiency measure' or a 'cost-saving measure', is stripping a specialist tribunal—which discharges a policy to encourage the resolution of these complex disputes by mediation and the development of land management schemes embodied in ILUAs, and has long and specialist experience in performing that function—with a court with very limited experience, indeed, virtually no experience, in the development of Indigenous land use agreements and little specialist experience in mediating native title disputes.

Mr Wilkins : With respect, I disagree with that entirely. I disagree with that quite strongly.

Senator BRANDIS: Do you acknowledge that the National Native Title Tribunal is a specialist tribunal?

Mr Wilkins : Not really. As a matter of fact, as a practitioner of this at a state level, we never used the Native Title Tribunal. We never went near them. We did a lot of ILUAs. I know on the east coast there were quite a lot done. In fact, there was a policy in New South Wales to eschew it, so it was not actually used. On the other hand, the Federal Court is doing quite a good job in directing people towards mediation. So, with respect, I do not agree with the way you have put it.

Senator BRANDIS: Let us approach it pragmatically. Mr Soden, how many members of the Federal Court have experience in mediating native title claims?

Mr Soden : If you are referring to judges when you use the term 'members'—

Senator BRANDIS: Yes, I am.

Mr Soden : there would only be a couple that are still on the court at the moment. However, if you are using the word 'members' to mean officers of the court, there are quite a large number of officers of the court, very highly qualified lawyers in the native title jurisdiction, that are involved in assisting the judges in the case management issues and undertake mediations. I would not want you to think from my comments earlier that those people have not been involved in ILUA issues. You asked me if we have been involved in resolving issues from beginning to end. I am not certain about that, but I can certainly say from my experience in what is happening in the court that these officers play an integral role often in resolving some of the issues that are critical to the resolution of the broader ILUA. In relation to any suggestion that might be made that there are not very, very experienced judges in the court in the native title jurisdiction would cause a concern amongst those judges who have that experience.

Senator BRANDIS: No, I understand perfectly that a number of judges have been concerned with native title matters at a first and appellate level. What I am focusing on is a narrower question, and that is the extent to which the specialist work which the Native Title Act has always vested in the National Native Title Tribunal with its strong policy emphasis on mediation and in particular mediation culminating in the development of Indigenous land use agreements is not a specialist expertise shared by judges of the Federal Court. I asked you a moment ago how many judges of the court have experience in mediating native title claims, and you said you thought there were still a couple. Whenever you replace a specialist tribunal which exercises a specialist jurisdiction and re-vest it in a highly competent—no doubt about that—but non-specialist court of general jurisdiction, it raises concern that the specialisation and experience developed in the specialist tribunal over many years is going to be lost. That the approach taken by the tribunal is not going to be the approach taken by the Federal Court judges, and when I see in the budget papers that this very important change is being justified merely as an efficiency measure, a cost-cutting measure, rather than on substantive policy grounds then it does cause me concern, Mr Soden.

Mr Soden : The issues you raise about the transfer of responsibility and efficiency measures I will put to one side. That is a matter for government. All I would like to say on the record is that there is a great depth of experience in the Federal Court amongst those judges who have taken a special interest and become, I believe, highly specialised in the native title jurisdiction. And it does not only go to issues concerning the trial; those judges manage the cases from beginning to end and those cases were commenced before the tribunal undertook mediation or work concerning ILUAs associated with a consent determination. So the judges managing those cases had to understand and be on top of what was happening with the case. In that sense, I think they all would have a very deep understanding of the relationship between the case and the ILUA and the issues involved. It was the judges in more recent times with the ability to take control to a greater extent, after the 2009 amendments, that have been able to focus upon the issues in an active case management sense, including, most probably, issues relating to what might need to be done in the ILUA environment, which has led, I believe, to that great acceleration in the consent determinations, which, as you say, often involve an ILUA.

Senator BRANDIS: I did not say that; Mr Wilkins said that.

Mr Wilkins : Well, it does often. Can I just go back to that point. You said it was simply a matter of efficiency; as somebody—

Senator BRANDIS: That is what is said in Budget Paper No. 2.

Mr Wilkins : Yes, but, as somebody interested in effective native title regimes, can I just say that I think this is a move in the right direction as a matter of public policy. Forget about the efficiency aspects of this—which are not unimportant in terms of public policy—if you want a system that actually delivers, as you say, in a more timely and proficient way, consent determinations underpinned by ILUAs, I think this is the right way to go. It might put your mind at rest to know that some of those functions from the Native Title Tribunal are not just going to disappear; they will be incorporated into the native title functions in relation to ILUA negotiations not related to native title claims mediation. The arbitral functions regarding future acts will stay; they will come across and remain badged under this concept of a National Native Title Tribunal. There are various other things, like the NNTT determinations that a future act may or must not be done, processing finalisation of objections to the inclusion of an expedited procedure, statement in state or territory government notices. Mediation assistance will still be available. So a lot of these things are actually not disappearing; they will be actually incorporated into the new structure.

Senator BRANDIS: Mr Wilkins, I did not actually say to you that my concern lay in the fact that some things were disappearing. I thought I made it very clear that my concern was that a particular approach to dealing with these disputes, which hitherto has been placed in the hands of a specialist tribunal, was being transferred to a different judicial body, which I am concerned may not approach the matter in the same way. I accept that you have experience in these matters and you are entitled to your own views about whether this is a good public policy measure, but the government has put forward one reason, one ground only, for this measure. That is, as Budget Paper No. 2 reveals, as an efficiency measure, a savings measure. I think I am entitled, as someone who has examined the budget papers, to take the government's intentions at its word. If the government says, 'We're doing this because it's a savings measure,' that is why it is doing it.

Mr Wilkins : I have a media release from the Attorney-General here that does indicate the point that I was trying to make—that it actually draws on the Federal Court's case management powers and expertise and will contribute to a more effective native title system.

Senator BRANDIS: I am sure the government would say that. The government is hardly going to put out a press release after the budget saying, 'We're doing this but it's only going to make things worse.'

Mr Wilkins : The point I am simply making is that there is more to this than simply efficiency, even if that is—

Senator BRANDIS: All right. That is what you say. Mr Soden, did the Federal Court seek the transfer of these responsibilities?

Mr Soden : No, I would not put it that way. We were certainly asked, in relation to the work that was conducted by the Skehill exercise, whether we had a view about a proposal which was going to emulate the arrangement that presently exists with the Competition Tribunal in the court—that is, the court administers the Competition Tribunal and receives a budget for it and, as you know, one of the judges is the president of the tribunal, so it is managed within the court.

Senator BRANDIS: Yes, but the Competition Tribunal is an entirely different beast from the National Native Title Tribunal.

Mr Soden : It was a model that was suggested.

Senator BRANDIS: Was it? Are you serious?

Mr Soden : A model that was suggested in the sense of: could that administrative model work? We were asked about—

Senator BRANDIS: Are you seriously suggesting that some bright mind in the bureaucracy thought that the Australian Competition Tribunal, which deals with issues like market definition and competition law and policy, was an appropriate model for dealing with the reconciliation of native title claims involving the range of deeply emotional, historical and cultural factors that native title claims do involve, affecting the rights of Indigenous peoples, affecting the rights of landholders, affecting interests way beyond and of much greater sensitivity than merely commercial interests?

Mr Soden : It was not the nature of the business of the tribunal; it was the basic structure of the administration.

Senator BRANDIS: I think it is a pretty limited model.

CHAIR: Senator Brandis—

Senator BRANDIS: I have a little bit to go on this, Senator Crossin.

CHAIR: I understand that, but we are getting close to 3.30. We are going to have a committee meeting at 3.30. We will come back to the magistrates court. What I need to do before we have our committee meeting is just go back to the issue of this tabled document. Minister Ludwig, I need you to clarify for me as chair, if you can, if your objection to tabling this document is on the basis of public interest grounds—

Senator Ludwig: Yes, Chair, it is.

CHAIR: and I want to know if you can provide me with some background as to why you are making that objection, before we have a formal committee meeting.

Senator Ludwig: Thank you, Chair. As I outlined originally, it is, on the face of the record, a cabinet-in-confidence document. It is a matter that is cabinet only. On that basis, it should have public interest immunity attached to it. It should not be released here in a public forum, as a consequence of that. I have not read the contents of the document, but it is marked as cabinet-in-confidence and it should be regarded as cabinet-in-confidence.

Senator BRANDIS: Madam Chairman, before we go into the private meeting, while we are still in public session, might I make my submission to you in relation to what has come from the minister? The document—

CHAIR: No, Senator Brandis, because what I want on the public record is just the minister's objections as to why it will not be tabled, and I will ask you to give your reasons to us as a committee when we deliberate in a few minutes.

Senator BRANDIS: The problem with that—

CHAIR: That is my ruling. That is what I am going to rule, Senator Brandis.

Senator BRANDIS: Point of order, Madam Chairman. Point of order—

Senator PRATT: Chair—

CHAIR: Sorry—

Senator BRANDIS: I am sorry; I have a point of order.

CHAIR: Thanks, Senator Pratt, but my ruling—

Senator BRANDIS: I have a point of order, Madam Chair.

CHAIR: And what is that, Senator Brandis?

Senator BRANDIS: My point of order is this. You have allowed the government to put the government's position on the public record—

CHAIR: No, Senator Brandis, I am going to stop you there because you are not correct.

Senator BRANDIS: but you are not allowing the opposition to respond on the public record to what the government has said.

CHAIR: Senator Brandis, you are not correct there. The minister has made a claim that the document should not be tabled due to public interest concerns. I have asked him to give me an explanation of how he has come to that decision. We are now going to meet as a committee and you can put your view to the committee and we will see what deliberates after the committee has met, when we come back on the public record after the meeting.

Senator BRANDIS: Might I inquire of you, Madam Chairman, at what point in this process, if at all, will the grounds on which the opposition contends that the document ought to be tabled be able to be placed on the record?

CHAIR: The committee will make a decision. Based on whether or not you agree with that decision, you can take it up in the Senate chamber. You know full well that is where decisions of committees during estimates—or in fact any public hearing—are made. If individual senators do not agree with the decision of the committee, the committee's decision can be brought up and debated in the Senate chamber, not at the committee hearings. You are aware of that.

Senator BRANDIS: Madam Chairman, what you have done is you have treated the government and the opposition on an unequal footing. The minister has made an objection to a document I have sought to table. I have sought to explain to you why, applying the principles correctly, the document ought to be tabled and you have refused to give me the opportunity you have given the minister in this forum today.

CHAIR: You are not listening very carefully, Senator Brandis. I have outlined the fact the minister has given his reasons. The committee is now going to meet to consider those reasons. You know full well—that is, of course, if you understand the standing orders—that once a committee makes a decision, whether you agree or do not agree with that decision, you can take it up in the chamber. The committee will now suspend for at least 15 minutes while we have, first of all, a references meeting. Then the legislation committee will deal with this document.

Proceedings suspended from 15:31 to 16:05

CHAIR: We will reconvene this public hearing into the Senate Legal and Constitutional Affairs Committee's consideration of budget estimates for 2012-13. When we suspended our hearings at 3.30 pm the committee had a private meeting to consider Senator Brandis's request that the document he had produced be tabled. The document is labelled 'cabinet-in-confidence'. The committee has rejected that proposal and has moved a motion not agreeing to that document being tabled at these hearings. We are going to suspend our consideration of some of the agencies. We have not actually finished with the agencies; we are just going to perhaps push them off to a later time. We are now going to move to the Attorney-General's Department outcome 1, group 1: corporate, cross-portfolio and general. We plan to consider that for about half an hour and then go back to the agencies. Having said that, Mr Wilkins, I should ask you, seeing as this is the first chance for the department to say anything, did you have an opening statement?

Mr Wilkins : No.

CHAIR: Senator Hanson-Young, we are going to go to you for questions in this area first.

Senator HANSON-YOUNG: I will have some specified questions tomorrow for the other set of agencies, but I have some general questions for the department that I thought would be helpful to get before we go into those areas tomorrow. Is there a group within the Attorney-General's Department, Foreign Affairs and the immigration department where you talk through issues in relation to the detention, charging and convictions of Indonesian nationals?

Mr Wilkins : Sorry, that is group 2 on this.

Senator HANSON-YOUNG: I thought it was a general type of question. Mr Wilkins, I have got a stack of questions generally in this area. Do you want me to wait until outcome 2?

Mr Wilkins : Why do you not just run through your questions now and I will see if we can answer them in a group. How many have you got there?

Senator HANSON-YOUNG: It depends on what your answers are!

Mr Wilkins : Oh, I see.

Senator HANSON-YOUNG: Firstly, I want to know whether there is any type of cross-departmental taskforce or discussion group or anything like that. From that, I was going to ask about the engagement of the Attorney General's Department because, obviously, it cuts across everyone else as well.

Mr Wilkins : The answer to that depends on what you mean. Clearly there is a lot of discussion between the departments you referred to and probably more. There is SCNS, for example, which is the secretary meetings and which is almost an iteration of the National Security Committee of cabinet. There are other ad hoc groups though, and there are probably groups—Tony can correct me if I am wrong—that would meet to consider aspects.

Senator HANSON-YOUNG: There is not a formalised task force?

Mr Sheehan : There is a border protection taskforce which is convened by PM&C, which both the Attorney-General's Department and the department of foreign affairs participate in. It looks broadly at border protection issues. It could from time to time have an issue that related to Indonesian crew on its agenda. Separate to that, in our department we convene a meeting on a regular basis which includes us, the Federal Police, the DPP and the states and territories, in respect of Indonesian crew issues as they relate to the states and territories. And ad hoc meetings can occur.

Senator HANSON-YOUNG: As part of this review that is being done into the 24 specific cases, there has not been a group set up that cuts across those different departments as well as your own?

Mr Sheehan : If I may just go back to my previous answer, Mr Anderson has just reminded me that DIAC also participates in the regular meeting we have with the states and territories. There have been two meetings, I believe, involving a variety of agencies, including the department of foreign affairs and DIAC, in relation to the matter of the review of the 28 crew.

Senator HANSON-YOUNG: But primarily that review is in the responsibility of the Attorney-General's Department?

Mr Wilkins : Yes, that is right.

Senator HANSON-YOUNG: It is fit because the agencies involved come under your gamut more than any others, I imagine. Mr Wilkins, this is where you can jump up and down and tell me to come back later if you like, but if we could knock them off now that would be really helpful. When was it that the Australian Human Rights Commission first wrote to the Attorney-General's Department with concerns about minors in detention? I am talking, of course, specifically in relation to the Indonesian minors.

Mr Wilkins : I am told February 2011.

Senator HANSON-YOUNG: Are you aware of any other bodies that may have written to you?

Mr Wilkins : I will let Iain Anderson answer.

Mr I Anderson : The Human Rights Commission has raised questions about particular cases and the Indonesian consulate has also raised concerns about some cases. From time to time there have been letters from legal representatives as well, seeking to raise particular cases that they are involved in.

Senator HANSON-YOUNG: So you have had a number of different bodies or individuals raise this issue with you. When was the first time representation from the Indonesian consulate occurred?

Mr I Anderson : I would have to take that on notice. We do have regular discussions. There is actually a regular process of engagement between agencies of the Australian government and the Indonesian consulate on a range of issues, and crew have been one of the issues typically on the agenda for some time. It is not necessarily about whether crew are minors or not but generally explaining the processes by which the crew are dealt with in the criminal justice system and then in the corrections system if they are convicted. Like any consulate, they have concerns about how their citizens are dealt with. I would have to take on notice when they first raised concerns about that.

Senator HANSON-YOUNG: If you could.

Mr I Anderson : If I could also just add that, in terms of those three parties who have raised concerns—being the Human Rights Commission, the consulate and legal representatives—my recollection is the legal representatives have only raised concerns relatively recently. It is not as though they have been raising concerns over the whole period.

Senator HANSON-YOUNG: Could you describe what 'relatively recently' means to you.

Mr I Anderson : There was a letter from WA Legal Aid that came in about a month ago, I think.

Senator HANSON-YOUNG: Have there been any issues raised with your department from state attorneys-general or state governments in relation to their concern about the individuals that are being held in their facilities, in terms of age?

Mr I Anderson : In terms of age, there is one instance that I am aware of where we did have concerns raised by the commissioner of corrections for a particular jurisdiction about a particular individual who had been raising concerns about age. That individual subsequently retracted their statements about being a minor, and so that removed that concern on the part of that jurisdiction.

Senator HANSON-YOUNG: But you did have some communication from them at some stage?

Mr I Anderson : As Mr Sheehan has said, we have a regular teleconference with the states and territories.

Senator HANSON-YOUNG: With one specific concern raised?

Mr I Anderson : I believe that it has only been one specific concern.

Senator HANSON-YOUNG: With the review that is currently being run, are we still looking at 24 cases, or are we looking at 22 cases?

Mr I Anderson : Twenty-eight cases is the total number of cases in the review. Of those, six people have already been released, three through a decision of the Attorney-General and three through having served their sentences. So that leaves 22 cases out of the 28.

Senator HANSON-YOUNG: Is that the total number of cases that have been raised with you from the Indonesian consulate?

Mr I Anderson : That exceeds the number of cases raised with us by the Indonesian consulate.

Senator HANSON-YOUNG: Where have those extra numbers come from?

Mr I Anderson : The Commonwealth Director of Public Prosecutions has advised us that, in those 28 cases, which include ones raised by the consulate and by the Human Rights Commission, they are the cases where individuals have been convicted who have at some stage in the process raised a concern about age. It is worth noting, though, only in three of those cases was age actually formally raised before the court.

Senator HANSON-YOUNG: Are you aware of the case of a 17-year-old who claims to be a minor and claims to have been arrested when he was 15 and he remains in the Albany corrections facilities in Western Australia?

Mr I Anderson : I just note that there are some difficulties in talking about individual cases, with regard to privacy.

Senator HANSON-YOUNG: Are you aware of a 17-year-old currently within Albany who is raising issues? Obviously they believe they are 17 and they should not be there.

Mr I Anderson : I am not aware of anyone who is in fact 17. Age is a very difficult thing to establish. We are talking about a particular cohort of people who typically have no registered date of birth, who might not be aware of their own date of birth and who might have reasons to either exaggerate or to diminish their age. As it stands, we are not aware of anyone who has in fact been convicted as a minor in recent times. We are aware that there are still some people who are contesting their age. They might contest it sometimes and then drop their claim. As I said, only three of the people who are being looked at in the review ever actually formally raised age before the courts. I am certainly aware that there are still 22 cases we are looking at.

Senator HANSON-YOUNG: I accept that. But there are a number of reasons why people do not raise their issues of age before or at the time. We have sat through the various Senate inquiries into this. We both understand the complexities facing those individuals at the time. The review is being run into the remaining 22 cases. Are there any other cases that you know of where people are contesting, or have contested, their age?

Mr I Anderson : Since the review was announced, I am aware of one other case where, although age has at no time been raised until the present, the person has been convicted and is serving a sentence. Their legal representatives have now said that that person wishes to raise their age.

Senator HANSON-YOUNG: You are reviewing those 22 cases. Have you decided to put those individuals into a different type of facility in the interim on the basis of their age being in doubt?

Mr I Anderson : The decision as to the type of facility is a matter for the states and territories who operate the actual correctional facilities. We share information with the states and territories as to our views as to the age of individuals and ultimately it is a decision for the states and territories.

Senator HANSON-YOUNG: I understand that, but it is your department that is running the review. You have obviously picked out 22 of these people who you believe warrant further investigation. Have you asked for them to be housed in more appropriate facilities while that review is taking place?

Mr I Anderson : No, we have not. We have not actually told states and territories of the identity of all the people who are subject to the review and, if I can make it clear, the fact that they have been included in the review does not mean that we have in any way come to a view as to whether they were minors or were adults at the time that they were charged with these offences at they were first intercepted on arrival in Australia. It is just that these were the cases where age was raised at some stage during the process and where they were subsequently convicted.

Senator HANSON-YOUNG: There are more cases than that though of people who have raised the issue of age, isn't there? There is not just the 28 cases.

Mr I Anderson : The advice from the Commonwealth Director of Public Prosecutions is that they have identified 28 cases where age was raised at some stage during the process.

Senator HANSON-YOUNG: How have they determined that? I will also ask them this when we hear from them. What is your understanding of the criteria by which that has been filtered?

Mr I Anderson : They have looked at their case records.

Senator HANSON-YOUNG: Did you ask them to do an audit, to check their case records?

Mr I Anderson : We asked them how many cases in which they believed age had been raised, and they came back with the number of 28. There are certainly more cases where age has been raised, but it is worth bearing in mind that a number of people have been returned—to Indonesia, for example—without being prosecuted on the basis of the Commonwealth forming the view that there was sufficient doubt as to whether they were an adult or a minor and did not actually get charged. There is another group who were initially charged but the prosecutions were subsequently discontinued because something emerged during the prosecution process to give sufficient doubt as to their age. A significant number of people have been returned. These are the 28 who were convicted.

Senator HANSON-YOUNG: I understand that. What about the numbers of people who are waiting for their actual day in court but have been charged?

Mr I Anderson : I believe that there are five people currently before the courts actively claiming to be minors.

Senator HANSON-YOUNG: They are not included in your review of 22 though, are they?

Mr I Anderson : No, they are not included in the review because they have not been convicted, but if something comes into the hands of the Commonwealth that raises sufficient doubt then the Director of Public Prosecutions, who has that decision, is likely to discontinue their case.

Senator HANSON-YOUNG: What type of facilities are those five currently being held in?

Mr I Anderson : I would have to take that on notice.

Senator HANSON-YOUNG: Could you, please. That would be helpful. Could you also take on notice how long those people have been in some form of detention—that is, when did they arrive in Australia and then, subsequently, when were they charged?

Mr I Anderson : Certainly.

Senator HANSON-YOUNG: Thank you. Could you confirm for me whether the Attorney-General's Department had any representatives at a meeting on 25 or 26 April in Bali between senior Australian and Indonesian officials where the issue of minors was discussed?

Mr I Anderson : We did. That is one of those regular government-to-consulate negotiations or discussions that occur. They are sometimes in Indonesia and sometimes here in Australia, and crew was one of the issues that was discussed at that meeting.

Senator HANSON-YOUNG: Were there representatives from the foreign affairs department at that meeting as well?

Mr I Anderson : They actually lead the Australian delegation at those.

Senator HANSON-YOUNG: So they were there and the Attorney-General's Department was there. Were there any representatives from the immigration department at that meeting?

Mr I Anderson : I believe there would have been. For the full representation, we can either ask Foreign Affairs or—

Senator HANSON-YOUNG: Sure, okay. At that meeting, were the specific cases of the three individuals that you have subsequently released—not those who have already finished their sentence and whose cases we reviewed, but the three who were subsequently released once the review had started—discussed in that meeting?

Mr I Anderson : I do not believe that they were; it is possible that the individuals might have been raised by the Indonesian side in those discussions, but certainly they were not raised by the Australian delegation.

Senator HANSON-YOUNG: Was the list of people that you were reviewing given to the Indonesian officials—or, at least, was the number of cases you were reviewing discussed? They are two separate questions, I am sorry. I will put the first one: were the Indonesian officers at that meeting given a list of the individuals you are reviewing?

Mr I Anderson : I do not believe so, Senator. We have made specific inquiries through the consulate with respect to each of the individuals to see whether the consulate can provide any documentation that might go to establishing their age, or at least whether they are an adult or a minor. I do not believe that was actually provided at that meeting though.

Senator HANSON-YOUNG: At that meeting, was the number of cases that you are reviewing discussed?

Mr I Anderson : I do not believe so.

Senator HANSON-YOUNG: At that meeting, were there any other cases presented to you that the Indonesian officers wished you to review?

Mr I Anderson : I will have to take that on notice, Senator, I was not there personally. I do not believe so, but I will take that on notice.

Senator HANSON-YOUNG: Thank you very much. I will leave my questions in relation to that issue for now, thank you, Mr Wilkins. In the remaining time I have I want to ask about another review that the Attorney-General's Department is reported to be running, and that is in relation to the negative ASIO assessments. It has been referenced a number of times, but most recently by the immigration minister yesterday, that the Attorney-General's Department was reviewing options in relation to negative ASIO assessments as they relate to refugees.

Mr Wilkins : I think that is probably elevating, a little bit, what is actually occurring. I mean, we are obviously canvassing a number of options and ultimately putting them to the Attorney-General, who might take them to the cabinet. But to say there is a review or an inquiry of some sort is, I think, probably giving it more profile than it possibly deserves. But, yes, we are doing that work.

Senator HANSON-YOUNG: So it is not formal—it does not have a terms of reference or anything like that?

Mr Wilkins : No, it is not a formal review like the one that Iain Anderson was just talking about.

Senator HANSON-YOUNG: So is somebody in charge of this?

Mr Wilkins : I am in charge of it.

Senator HANSON-YOUNG: You are the lucky man who gets to try and work out how we deal with this situation?

Mr Wilkins : No, I am the lucky man who gets to look at the options and present them and the pros and cons to the Attorney-General, who presumably then will talk to her cabinet colleagues about it.

Senator HANSON-YOUNG: Have you been given any type of time frame that this minister would like this type of advice within?

Mr Wilkins : There has been an iterative process. We have talked through certain options and have been asked to do further work, to explore and elaborate on other options, to look at various aspects of what is done overseas, and to look at various aspects of different tribunals and reviews and things like that. So it has been a sort of an iterative process, you might say.

Senator HANSON-YOUNG: Okay. But it has simply been something to put on your to-do list?

Mr Wilkins : No, it is very actively being pursued. But I cannot give you a time frame because, really, that is a matter for the government.

Senator HANSON-YOUNG: But for your workload, where would that fit?

Mr Wilkins : How do you mean, where would it fit? It is very important.

Senator HANSON-YOUNG: Have you pulled together staff around you to make sure you can get this done by a certain time?

Mr Wilkins : Yes, it has been given a lot of priority and is being treated with great seriousness.

Senator HANSON-YOUNG: And, in talking and thinking through those issues in relation to what other countries do, have you spoken with international counterparts about this issue in particular?

Mr Wilkins : There have been various discussion with foreign counterparts, yes.

Senator HANSON-YOUNG: In any recent times, with the New Zealand government?

Mr Wilkins : I have not spoken recently with the New Zealand government. I spoke with my counterpart there probably a couple of months ago about this.

Senator HANSON-YOUNG: I understand that you are still gathering your information, but what is your general take at the way the New Zealand system works? Is it something worth considering?

Mr McDonald : I have had the opportunity to speak to someone who knows about the New Zealand system and it is certainly one of the things that we have been discussing. But I cannot really outline any conclusions about that, given that everything is under consideration.

Mr Wilkins : It might be useful to clear up one of the questions that Mr Anderson took on notice.

Senator HANSON-YOUNG: Yes, great.

Mr I Anderson : You were asking about the Bali consular discussions. I am advised that no individual cases were discussed at those meetings, because at the consulate level they do not get down to the detail of individuals.

Senator HANSON-YOUNG: But the issue was raised?

Mr I Anderson : In general terms, the review was discussed.

Senator HANSON-YOUNG: Was the issue of Schapelle Corby raised in that meeting as well?

Mr I Anderson : I am not aware. That is not a matter that my part of the department deals with.

Senator HANSON-YOUNG: That would have been the foreign affairs officials, or who in the Attorney-General's Department might be responsible for that?

Mr I Anderson : I am not sure that the Attorney-General's Department is responsible for that.

Mr Wilkins : There is not really anybody responsible for that. I suppose it would be a DFAT issue, if anybody.

Senator HANSON-YOUNG: Okay. Thank you.

CHAIR: We are going to suspend the consideration for group 3.