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Legal and Constitutional Affairs Legislation Committee
29/05/2013
Estimates
ATTORNEY-GENERAL PORTFOLIO
Office of the Australian Information Commissioner

Office of the Australian Information Commissioner

[17:46]

CHAIR: Professor McMillan, do you have an opening statement?

Prof McMillan : No, I do not, Chair.

CHAIR: Senator Rhiannon will start with questions.

Senator RHIANNON: It is excellent news that we are one of the 58 countries in the Open Government Partnership. Can you tell me which federal agency will be taking responsibility for this initiative?

Prof McMillan : I understand that in answer yesterday to a question from Senator Faulkner, Deputy Secretary Leon in the Department of Prime Minister and Cabinet answered that the Prime Minster had written to the Attorney-General requesting that the Attorney-General's Department do it. Yes, I am seeing nods along the table.

Mr Fredericks : Yes, I can confirm that PM&C yesterday in evidence advised a committee that the PM had agreed that the A-G was the minister and that AGD was the lead agency.

Senator RHIANNON: Thank you. What resources and staff will be put into this initiative?

Mr Fredericks : That is a matter we will have to consider in time.

Senator RHIANNON: Could you take it on notice? In previous estimates the Office of the Australian Information Commissioner had said that they would require two additional staff. Was there anything allocated in the May budget to cover this?

Mr Fredericks : Obviously this will be a matter ultimately for the Attorney-General's Department in its own internal budget setting, as well as other agencies and other departments. Our internal budgeting process for 2013-14 is not complete, and so it will be considered in that process.

Senator RHIANNON: So is the answer no, that there is not a specific allocation for the office in the May budget?

Mr Fredericks : If you are asking whether there has been a new policy measure for this in the budget just passed, the answer to the question is no.

Senator RHIANNON: I understand that in the United States during the development of their national action plan, the federal government engaged in extensive consultations with external stakeholders; civil society groups and members of the private sector got involved. Do you have plans for similar consultation here?

Mr Fredericks : We will certainly consult, as is our usual way in progressing matters like this. As to the detail, it is too early to say.

Senator RHIANNON: You have said that you will be consulting 'in the usual way'. Can you say what your usual way is, please?

Mr Fredericks : We would consult with stakeholders.

Senator RHIANNON: You have obviously done it in the past, so which stakeholders are you referring to?

Mr Fredericks : I think it is too early for us to be able to advise on particular stakeholders. This is very recent advice from the Prime Minster. We will start that work though.

Senator RHIANNON: When you say, 'in the usual way', it does suggest that you are doing something which has been done before. That is what I am just trying to get to the bottom of.

Mr Fredericks : 'The usual way' is that we as a department will consult with stakeholders in the development of—

Senator RHIANNON: You do not have an example you could share with us—in terms of 'the usual way'? Do you have an example where you have done it before, where you have done something 'the usual way' and you can share it with us—what you did and who you consulted with?

Mr Fredericks : I cannot do it in relation to this particular initiative. But, in the usual course, a department like ours would consult with relevant stakeholders in the development of the work and we will do that here.

Senator RHIANNON: The US National Action Plan for the Open Government Partnership includes a commitment to implementation of the Extractive Industries Transparency Initiative. That is a voluntary framework under which governments publicly disclose their revenues from oil, gas and mining assets and companies make parallel disclosures regarding payments they are making to obtain access to publicly owned resources. Another measure in the US national action plan is an initiative to increase the transparency of foreign assistance. Will these kinds of measures be replicated in our plan?

Mr Fredericks : We are aware of that issue and we will look at it. Ultimately, that will be a matter for government.

Senator RHIANNON: You have said that you are aware of the issue.

Mr Fredericks : My colleagues tell me that we are aware of the initiatives that you just described.

Senator RHIANNON: Can you explain what awareness means? Has consideration been given to actually doing this? Has a brief been prepared on it? Has a recommendation been made? Can you explain what awareness means in that context?

Mr Fredericks : Define 'aware'. We understand that that is an issue. We understand it is an issue we will have to turn our mind to and that the government will need to turn its mind to. As to whether we have done that in any full way yet, the answer is no.

Senator RHIANNON: What will be the process after the Hawke review of FOI laws is tabled? Will there be further consultation on the recommendations of this review in the context of the Open Government Partnership plan development process?

Senator Ludwig: I am sorry, Senator. We are not sure who that was directed at.

Senator RHIANNON: I am not sure myself—whoever picks it up. The question was: what will the process be after the Hawke review of FOI laws is tabled? Will there be further consultation on the recommendations of this review in the context of the Open Government Partnership plan development process?

Senator Ludwig: I suspect that would be for the Attorney-General to decide once he receives it.

Senator RHIANNON: I return to the Extractive Industries Transparency Initiative. What obstacles, if any, are there to Australia signing up to the Extractive Industries Transparency Initiative's legislative obligations?

Mr Fredericks : We as a department are just not in a position to answer that. I could take that on notice.

Senator RHIANNON: When you take it on notice, does that mean you are in a position to answer it but you do not have the information? Before you have been sending me off to the A-G—this one stays with you?

Mr Fredericks : We will need to consider that. I suspect we would seek advice from other departments as well.

Senator RHIANNON: This has been a long one. When do you think Australia will do so, considering it has been 11 years since the commencement of the initiative?

Mr Fredericks : What do you mean by 'do so'?

Senator RHIANNON: The initiative started 11 years ago and it is still being considered. I am just trying to understand what your process is and when the decision might be made—and also the link with the Open Government Partnership plan. Will it form part of Australia's Open Government Partnership plan?

Mr Fredericks : I am terribly sorry. It is late and maybe I am a bit slow. I am not quite sure which particular initiative you are directing our attention to.

Senator RHIANNON: The Extractive Industries Transparency Initiative.

Mr Fredericks : I am not in a position to answer that tonight. I will need to take that on notice.

Senator RHIANNON: Hopefully you can answer this bit of it, because it seems to me to be just a process point—will it be part of Australia's Open Government Partnership plan?

Mr Fredericks : No decision has been made on that. We will need to consider that going forward.

Senator RHIANNON: The Office of the Australian Information Commissioner is receiving less funding, according to the budget papers. It has been allocated $10.604 million for 2013-14 compared to $10.764 million the year before. Why was Professor McMillan's request for resources not met? At a previous estimates, he was very clear about this issue of resources.

Mr Minogue : I do not know that I can be all that helpful other than to say that decisions that government makes about funding its agencies are decisions for the government, and the resourcing of the OAIC was made in the context of the budget.

Senator RHIANNON: Did you make a recommendation? Did you disagree with Mr McMillan's assessment? Was there other advice?

Mr Minogue : I do not know that it is appropriate for me to comment on what advice we may or may not have given government in the course of its deliberations. The outcome was the budget decision the government made.

Senator RHIANNON: Do you think more resources are needed?

Mr Minogue : I could not respond to that.

Senator RHIANNON: Why did the government reject the recommendation of the Productivity Commission that EFIC, our export credit agency, be subject to FOI laws?

Mr Minogue : That is really a matter that was the responsibility of Treasury in responding to the Productivity Commission, so that is a question that should be directed to Treasury.

Senator RHIANNON: Even though it has this FOI component? Have you given any consideration to this at all?

Mr Minogue : I have not personally. I will check with other officers.

Senator RHIANNON: Has somebody?

Mr Minogue : We are aware of that, but it is not a matter that I have personally dealt with.

Senator RHIANNON: My question is: was anybody within your agency asked to give advice on this matter? Was any advice given?

Mr Minogue : We will take that on notice, if that is okay.

Senator RHIANNON: Thank you. I imagine you will take this on notice as well. Has any consideration been given to amending the FOI legislation, especially considering the criticism surrounding the transparency of EFIC's work?

Mr Fredericks : We will take that on notice, at your invitation.

Senator RHIANNON: Thank you. The Hawke report on the operation of the federal FOI was handed to Attorney-General Dreyfus at the end of April. When will the report be tabled in parliament?

CHAIR: Senator Rhiannon, I just want to clarify whether these are questions for the Information Commissioner or are really group 2 questions.

Prof. McMillan : I have no involvement in any of these processes.

CHAIR: Senator Rhiannon, if your questions are about freedom of information and the information area, they would come under group 2 for the department. We have not got to the department yet; we are still at the agencies of the Information Commissioner.

Senator RHIANNON: I apologise if there has been confusion about that. I do have a question of the Office of the Australian Information Commissioner. Has any additional funding been provided to the office in response to the continuing budget shortfall?

Prof. McMillan : The answer is no. The departmental appropriations for 2013-14 is, as you indicated, roughly $10.6 million. It includes a deduction for the efficiency dividend applied to all agencies.

Senator RHIANNON: Could you specify how this impacts on the work of the OAIC.

Prof. McMillan : We publish quarterly statistics on the web now that indicate the work being received by the office and also our completion rates. We have been very public about this. The statistics on the web indicate that we are encountering significant workflow issues. The work coming into the office—for example, privacy complaints, FOI complaints and Information Commissioner reviews—has been increasing by at least 10 per cent a year and though we have made a determined effort over the last nine months to reduce the backlogs there are still significant workflow backlogs. In particular, it takes roughly seven months to allocate a new Information Commissioner review application to an officer and a lesser period, but still a substantial period, to allocate FOI and privacy complaints. We have also written to government expressing concern that we have additional work to implement the substantial privacy reforms that commence on 12 March next year. We have written, drawing attention to the extra workload that that is imposing.

In summary, we are proceeding as best, as gamely and in as focused a way as we can. We are achieving results, but we are not able to complete all the work in the time frames that we would like.

Senator RHIANNON: Is the backlog becoming bigger and is it taking longer to get the work done?

Prof. McMillan : In terms of total numbers the backlog is reasonably steady at the moment. For example, we have on hand just over 400 Information Commissioner reviews that are unresolved. As a result of a determined effort we made towards the end of last year and allocating staff specifically to complaint handling and Information Commissioner reviews, we managed to increase the completion rate of individual staff officers quite considerably. If you look at the web you will see there is a substantial outflow of work, but there is still a large backlog that is not reducing in number, even though we are roughly completing the same work that is coming into the office, but we are not able to reduce the existing backlog.

Senator RHIANNON: Did I hear you correctly, that you said it takes on average about seven months to—

Prof. McMillan : To allocate. If we receive an application for Information Commissioner review it can take roughly seven months to allocate that to an officer for work. We do an initial review of the application, for example, to see whether it is in jurisdiction and to do initial acknowledgement letters, but to do substantive work on a review will take at least seven months.

Senator RHIANNON: Once it is allocated how long on average does it then take to complete it?

Prof. McMillan : It varies. It depends very much on the individual case, but the longest unresolved cases in office are now over two years old—that is, we have some applications for Information Commissioner review lodged over two years ago. All these statistics are on the web.

Senator RHIANNON: What would be your ideal practice? What do you think would be good practice?

Prof. McMillan : In the budget papers there are projected completion rates. The objective is to complete 80 per cent of Information Commissioner reviews within 12 months of receipt and, equally, to complete 80 per cent of privacy and FOI complaints within 12 months of receipt. We are not currently meeting that objective, but that is what we will be focused on in the forthcoming year.

Senator RHIANNON: How many additional staff would you need to achieve that objective?

Prof. McMillan : We have not calculated an exact figure. We have obviously had discussions around budget. The Privacy Commissioner wrote to the Attorney-General drawing attention to the workload pressures imposed by the privacy reforms, but we have been well aware of government announcements and government measures, including the efficiency dividend, so we have not done scenario modelling. When the proposals for FOI reform and the creation of the office were going through the parliament it was projected that the office would have 100 staff under the departmental appropriation. That is a figure we have been comfortable to accept as a projected number. The numbers go up and down, but they will probably stabilise. They are currently down, under departmental appropriation, to around 64; it will probably stabilise in the next financial year at around 70.

CHAIR: We will suspend for a break. When we come back we will deal with group 3 emergency management.

Proceedings suspended from 18:05 to 19:32

CHAIR: Mr Wilkins, do you have an opening statement for this outcome?

Mr Wilkins : No.

Senator HUMPHRIES: I assume EMA is responsible for overviewing the National Insurance Affordability Initiative?

Mr Wilkins : We have some involvement in that. I would not say we are central players, but we have some involvement.

Senator HUMPHRIES: This is about, as I understand it, the Insurance Affordability Council making recommendations to government about the location and rollout of initiatives in flood mitigation and resilience building.

Mr Wilkins : What exactly is the question?

Senator HUMPHRIES: That is overviewed by Treasury, I assume—they have responsibility for that?

Mr Wilkins : That is right.

Senator HUMPHRIES: This is the agency which looks at response to floods and emergencies. Do you have any responsibility in helping to determine where those areas of greatest need might be with respect to allocation of—

Mr Wilkins : I can get some of the officers to elaborate on that, but the short answer is yes. I think there has been a reasonable working relationship with Treasury. Who would like to answer that? I might get Tony Sheehan, initially, to answer your questions.

Mr Sheehan : You are correct that Treasury has oversight, but there is an arrangement whereby there will be consultation between the Treasurer's office and the Attorney's office which allows for us to talk to Treasury and to offer any information we might be able to. In respect of the projects, the focus relates to insurance affordability, whereas, in respect of the work that we do on NDRRA and so forth, there is obviously a much broader recovery focus. But we are able to provide them with any information that we have, and obviously we will be in close contact with Treasury as proposals are discussed.

Senator HUMPHRIES: All right. I see that there are essentially three areas where the initial allocation of $100 million in initial projects is being directed: two locations in Queensland and works associated with flood mitigation for the Warragamba Dam. I assume that sum of money is in the form of grants to states, or will the Commonwealth be spending that money directly on mitigation?

Mr Wilkins : I am not sure. I think you would have to ask Treasury how it is structured. I am not sure how it is structured.

Senator HUMPHRIES: Okay. Say there were to be a flood or something that affected these areas and NDRRA payments were made to the affected areas for flood recovery. From which pot does that come? Is it just from consolidated revenue, or is it an expense against the Attorney-General's portfolio?

Mr Wilkins : It has waxed and waned. We have tried to put notional numbers into the budget papers, or sometimes they just put nominal numbers in. Effectively what it means is that it comes out of the consolidated fund, I think, because nobody really knows in advance in any one year what it is going to cost. So it is either a notional amount—they put something which is a dummy to hold a place—or they have a look at what it may have cost in the last year or something like that. There have been various techniques used; I know that from when I was in New South Wales too. You were never quite sure what you would put in in terms of payment for disaster recovery relief.

Senator HUMPHRIES: Is there any money in this budget, the 2013-14 budget, for NDRRA payments?

Mr Wilkins : I think there is money in the budget papers. Can I take that on notice and come back to you on that.

Senator HUMPHRIES: Sure. That would be good. So you are not involved in servicing the National Insurance Affordability Council or whatever.

Mr Wilkins : No.

Senator HUMPHRIES: Will there be representation on the council of the Attorney-General's Department or EMA?

Mr Wilkins : I think we are being consulted about the terms of reference. I am not sure that we have arrived yet at the criteria for appointment et cetera. We have been asked to comment on the chair and who might be an appropriate chair, I think. That is as far as it has gone.

Senator HUMPHRIES: All right. I will direct some questions to Treasury in that area. Could I ask some questions about the National Flood Risk Information Project. That is under EMA's area of responsibility?

Mr Wilkins : Yes.

Senator HUMPHRIES: I see that $12 million has been committed over the next four years to development of this project in response to the Natural Disaster Insurance Review, and I assume that most of that money is being spent on building the information that will be at the other side of this portal—that people will be able to access through this portal that is being developed by Geoscience Australia. Is that correct?

Mr Sheehan : Yes.

Senator HUMPHRIES: Obviously there are existing flood maps or flood reports that will be accessible through this portal, but there will be ongoing work to add to that body of knowledge that is accessible through the portal. Is it possible to say at this point what proportion of flood-prone Australia is already effectively mapped, with information that could be accessed if the portal were operating tomorrow?

Mr Wilkins : I have sat through a number of discussions with my colleagues interstate about what the available data is. It is probably fair to say we have a reasonable overview of where floods have been and flood proneness may be, but it is more the quality of the data than the extent of the data. We have a sort of an idea for the whole of Australia but the problem is that Geoscience and people like that say you could have much better quality data and a much better idea of projecting in the future where these things might occur if you did better mapping. It is not so much that there are areas of Australia that we do not understand; it is just that it is a bit patchy in terms of the quality of the data we have. I think that is probably fair. Different methodologies have been used in different places, too.

Senator HUMPHRIES: What I want to know is effectively how far $12 million takes us towards filling in the gaps in our knowledge. It was put to me at one point that less than 10 per cent of Australia's flood prone areas had been properly mapped, and there was a huge amount of mapping that you would need to do if you were going to comprehensively map what areas were vulnerable. Do we have any idea what the $12 million will do to reverse that situation?

Mr Wilkins : It will not. What you need to properly map depends on your definition of what proper mapping is and for what purpose you are mapping.

Senator HUMPHRIES: The purpose is presumably to give insurers, among others, the capacity to work out what the risks are for individual properties or assets that they might come to insure. That is surely an important part of this process.

Mr Wilkins : That is a pretty good rule of thumb. It is not so much insurance, because they collect the data themselves—we use some reinsurance data, and it is in their interests to collect their own data. It is more for planning purposes and local government and people making their own decisions. I do not know whether we have an answer to your actual question.

Ms Chidgey : The primary purpose of the project is to make existing data more easily available and accessible through a single web portal. Part of the project, as well, is about guidelines and standards to improve the quality of data over time. But the funding is not, in itself, to undertake flood mapping; it is to collect the data that is out there in all the states and territories and make it publicly accessible, and to work with jurisdictions to improve standards.

Senator HUMPHRIES: In what circumstances would the mapping not be available to the public at the moment? Presumably the mapping has been done either by local councils or public authorities of one sort or another?

Mr Wilkins : The first issue is to make it easier to get at it in one place, but also there has been some reluctance by some local governments, and even some state governments, because they believe that if they publish this stuff they may open themselves up to legal liability of some sort. I think we have gone around that mulberry bush and most people are now convinced that that is not a good reason for holding back the information and in fact it may compound the position. They are the reasons.

Not all information is necessarily available but it will become available. We need to get it into the one place and begin to get people to use a common standard and maybe improve the standard. As you said, wherever the mapping is done it will be adequate for the purposes of land use planning and maybe for flood insurance purposes as well. There is a lot of mapping being done already, and the idea is to collect that and systematise it in relation to Australia. We can get a long way down the track of understanding the problems around flooding just by putting the data we already have into a tractable form. That is what this project is essentially about. It does not pretend that we are going to commission a huge amount more of flood mapping—we think that that will be done by existing private enterprises, by local government, by state governments and by some Commonwealth government authorities. The point is to try to get all that work as it comes through to be sensibly consistent and coordinated. We think that would be the best use of money. You could spend as much as you like collecting data and mapping, but we think that is better value for money and a better way of coordinating effort that is either existing or coming up in the lift.

Mr Sheehan : The guidelines that Ms Chidgey referred to are designed to help people who are undertaking flood studies to do so in a way that will ensure that the standards they have on the quality of the work is good and, in addition, helping those who already have flood mapping, publish it as easily as possible in one place.

Senator HUMPHRIES: This project was announced before the budget—last year, in fact. How much of the allocated funding of $12 million has already been spent and how much is yet to be spent?

Mr Sheehan : I think that is probably a question that we would have to check with Geoscience Australia, because all the funding went to them to build the portal. We wrote the guidelines. We would have to check that with Geoscience Australia.

Senator HUMPHRIES: Could I, on notice, have a breakdown of where that $12 million actually gets spent. What are the components of the $12 million, please?

Mr Sheehan : Yes.

Senator HUMPHRIES: I assume it is not expensive to set up an information portal—this is obviously online—but there are costs in doing the processing of information for presentation, and that is where the cost is. If I could have that information, please.

I wanted to ask about AGDRP fraud. Are you able to tell me how many claims of fraud have been made in respect of payments under AGDRP?

Mr Wilkins : We will be prepared to take that on notice. Although technically the AGDRP is our program, it is administered by Department of Human Services and they have that data. I am told that we do not, but we could get it. We could take that on notice.

Senator HUMPHRIES: Okay.

Mr Wilkins : If you wish—or do you want to direct that to—

Senator HUMPHRIES: No, that is fine. I will just give you the information I want and if you could take that on notice. It is the total number of claims of alleged fraud of AGDRP from November 2011 to date against the total number of claims of assistance. Let's make it consistent—for each of the last two financial years; that is, this almost completed year and the previous year. How many of those have become a debt payable to the Commonwealth for fraud or in ineligibility or whatever it might be? How many of those debts have been waived due to financial difficulties or for any other reason? And how much has been recovered to date of those that have not been waived?

Mr Wilkins : Sorry, I should correct myself. I am informed it is FaHCSIA that actually does crunch the numbers on this. My CFO tells me that FaHCSIA does the numbers, the Department of Human Services does the administration and we own the program.

Senator HUMPHRIES: Right! It should be very easy, then, to track down the information, won't it? Lastly, could I just ask where Emergency Alert stands? Have we finished those projects to upgrade the Emergency Alert procedures, and are all the telecommunications companies on board with their platforms to provide that enhanced location based Emergency Alert?

Mr Wilkins : I will get Mr Rothery to brief you on that, Senator.

Mr Rothery : As we have discussed previously, the proposal that government agreed to with the states was to expand Emergency Alert to be able to find the mobile phone handset by its location, whereas the original configuration relied upon getting the registered service address for a handset. That meant that, if, for example, someone had a mobile phone and the bill went to their employer, that might mean that we are quite a long distance out from where they live. The intention was to find a technology which would be able to find the mobile phones in proximity to the danger area and would then be able to send emergency services messages to those people who were in the target area. The technology was developed using a system which was to be built into each of the three carriers—Telstra, Vodaphone and Optus. Telstra's system was up and running for last summer and was used extensively. Victoria has also entered into contracts with both Optus and Vodaphone and, we understand, are on track to have that service available for the customers of those other two networks by the summer of 2013-14.

Senator HUMPHRIES: To the extent that it was applicable and used on the Telstra platform, at least, this last summer, is there an indication of how well it worked? Did it work as intended in, for example, the case of those fires in Tasmania?

Mr Rothery : The feedback we have had from the users, who are obviously the state and territory emergency services agencies, is that there was a great benefit to their campaigns to alert communities in danger from floods or fire. There was some learning for the agencies to do over summer—things like understanding how big some of the footprints of particular mobile phone cells were. Early in the summer, messages were being received by people quite some distance away from the danger area. People 30 or 40 kilometres away from the danger zone were getting a message saying 'Evacuate now' but without the context of a specific geographic area. As familiarity with the system and with the way the telephone network operates—particularly the way the mobile phone towers cover very large areas in rural and regional Australia—grew, the services were able to refine the way the system was used. By the end of the summer, there was a sense that—this was certainly the feedback to us—it was now a very useful additional tool in the range of communications methods that the emergency services now have. We were given the impression that the low level of harm to life from some of the severe fires around the country—which did lead to significant property loss—was in part due to the much better and more refined messaging and to the new means of communicating those messages to individuals. That is the feedback we have had from the emergency services agencies.

Senator HUMPHRIES: No significant problems?

Mr Rothery : As I said, only the issues from the beginning of summer where some of the messages were not specific—with the original assumption being that the only people who would get them were the people in harm's way. That meant that some people were perhaps being encouraged to evacuate when that was not required. The services quickly adapted over summer so that, we understand, towards the back half of the summer, things were working very well.

Senator FURNER: Firstly, please explain to the committee how the decisions to grant disaster assistance—the declarations—are made.

Mr Sheehan : Are you referring to the straight government disaster recovery payment?

Senator FURNER: The payment and making the declarations to recognise those areas which need assistance.

Mr Sheehan : The Australian government disaster recovery payment is a Commonwealth payment and it is a payment which is declared by the Attorney-General. The basis for the declaration is a consideration that we have a major disaster, then specifically there need to be agreed criteria that individuals will meet to be able to get the payment. The department provides information based on impact, information that we can get from state governments, local governments, the BOM, Geoscience Australia, so that we are able, as best we can, to understand the impact of a particular disaster. We provide advice to the Attorney and then it is at the Attorney's discretion to grant the AGDRP payments. First of all, the disaster itself is declare and then there are specific criteria, which have been consistent since 2010, that people must meet to get the payment. The payment is $1,000 for adults and $400 for children.

Senator FURNER: So that has not changed from previously. In concentrating on the information that is provided by state governments and local councils to allow that disaster assistance to be activated, the responsibility of that rests with the local and state governments, is that correct, in determining an area of need?

Mr Sheehan : We seek the information, and the primary source is the state government, but we will seek all the information that we can get, and we welcome any information that state and local governments can give us so that we can move as quickly as possible to provide advice to the Attorney. We, in so doing, will look at a number of indicators to assist us in providing advice to the Attorney so that a decision can be made about the impact of the disaster itself and what areas are affected and so forth that then leads to the declaration. It is not a decision for the local government or the state government in the case of the Australian Government Disaster Recovery Payment.

Senator FURNER: Not the payment, but certainly identifying the area that has been affected.

Mr Sheehan : Any information that the local and state governments can give us that help define the area and provide details on the impact of the disaster is central to the information that we then provide to the Attorney.

Senator FURNER: Quite often I get calls in my office at Strathpine, particularly earlier in the year when there was flooding in the south-east and up as far as areas of Toowoomba and Western Downs, and also the Somerset area and Goondiwindi and those sorts of areas. People would ring up and ask, 'Why haven't I received an entitlement to emergency management assistance?' You are telling me that an indication, a summary, or an assessment is done by the state and local governments to determine the area.

Mr Sheehan : Senator, to understand the issue, there can be circumstances where an individual meets the criteria in an isolated situation but they are not subject to a disaster that has been declared for the purposes of AGDRP. One thing that we have tried to do over the last summer is to be as flexible as possible where a particular disaster may have primarily impacted certain local government areas but where a disaster might also have impacted a smaller area in another LGA. We look at that and be flexible in the way that advice is given, and that then positions the Attorney. But there will be some instances where individuals may have suffered an impact that they can relate to a criteria but they have not been affected by a disaster that has been declared. That is a possibility.

Senator FURNER: Are you able to identify any of those special cases that have been considered by the A-G?

Mr Sheehan : I think so. I might just check, though, with my colleague Mr Collett, because I think we have an example, don't we, where we did not declare whole LGA but declared a district?

Mr Collett : There are a couple of examples. One would be the district of Ellendale in Tasmania. Another would be the township of Tumbulgum in New South Wales, where the Attorney activated only those specific geographic regions, based on the information that was available.

Senator FURNER: I was interested in getting some feedback on the announcement from 30 April this year as a result of the eligible primary producers for the $25,000 grants. Do you have any feedback on how that is progressing and the numbers of successful applicants?

Mr Sheehan : At this stage we do not have any data. It is something that we could consult with Queensland on. Because the payments to the primary producers are part of the national disaster recovery and relief arrangements, the Commonwealth provides a share of those payments, depending on what threshold the state has reached, up to a maximum of 75 per cent, but the administration is actually done at state level. We would be able to check, I think, and get some data for you.

Senator FURNER: Yes, I will put that on notice. I would be interested to see what contribution the state governments made towards those particular locations. And perhaps you could list the locations as well. Lastly, how is the new disaster recovery allowance that is before parliament going to help communities re-establish themselves after the likes of fires, flooding and so on?

Mr Sheehan : This is an important initiative which is borne of previous declarations of the disaster income recovery subsidy. The intent is for this payment to be available where a community is impacted and there are individuals who would otherwise have the opportunity to be working in that community who cannot and who will then be able to claim the payment until such time as they are able to begin work again. One of the advantages of that to a community is that it may assist individuals who might otherwise have to leave and go elsewhere to find work to be positioned when their business is up and running again to resume work in the job or the industry that they were in locally.

Senator FURNER: When will that be applicable from?

Mr Collett : 1 October is the intended date, so it is in place ahead of the coming summer, with the Department of Human Services being able to operationalise that.

Senator FURNER: I must say, I should commend the department on the work they put in in Bundaberg. I was up there two or three weeks ago, and I heard from the locals highly commendable recommendations on the way the department handled the recovery up there. It was quite devastating to see the after-effects driving across the Burdekin and those particular parts of Bundaberg. So, is that as a result of the effects of what happened to a number of businesses—as a bit of an example of what you are doing with the new assistance?

Mr Collett : Yes. The disaster recovery allowance would be used in those sorts of circumstances—where a community's businesses have been affected to a degree that employment is no longer certain and people may well be moving on. This is another measure that would be available to help support the local businesses to rebuild, particularly in that first 13 weeks.

Senator BOYCE: Was Banana Shire a declared area for the payment of disaster recovery payments? I will add that I mean Banana Shire in Queensland, for the benefit of some of those who do not know where it is!

Senator Humphries interjecting

Senator BOYCE: The ACT senator was rude enough to suggest that he at first thought Banana Shire was a joke name, but us Queenslanders here know that that is not the case!

Mr Wilkins : Banana Shire has not been activated, I understand.

Senator BOYCE: In view of the Australia Day floods?

Mr Sheehan : There was consideration for AGDRP of a number of LGAs in Queensland. Banana was not one of those that was activated.

Senator BOYCE: None of the towns within Banana?

Mr Sheehan : No. That was not of an example of somewhere where an individual town was activated either, so it was not activated within the shire.

Mr Wilkins : The data provided did not indicate that it crossed the threshold we were just talking to other senators about. Whether that is because the data supplied was inadequate or it just indicated that the damage done was not of sufficient severity to trigger the payment I do not know, but that is the situation.

Senator BOYCE: All right. I will follow on with some questions I had around the Australian government disaster financial support payments. I understand that there were at least 11 small businesses in Banana Shire who asked for the Australian government disaster financial support payments because of damage caused by the Australia Day floods but have been refused this.

Mr Sheehan : There is an exceptional assistance measures package for Queensland in addition to the normal arrangements under the Natural Disaster Relief and Recovery Arrangements.

Senator BOYCE: That would be the category C payments, would it?

Mr Sheehan : Category C would be only for primary producers in that shire, not for small business.

Senator BOYCE: The examples that have been given to me by local government officials and others include the Kroombit Tourist Park, which is just outside Biloela and lost five of its on-site caravans. It is considered a major ecotourism business and employer in Biloela. Another was the Jambin Hotel. Jambin is a small centre just outside Biloela. They had a metre of water go through their premises. We are advised by people from the Banana Shire Council that they had been told that these businesses were not entitled to support because, firstly, they did not qualify for category C assistance as they were not considered to be 'part of the rural sector'—and that is your primary production thing. Then they were told they were not entitled to payment because the number of small businesses affected was so small they were not worth worrying about. Given what you said earlier, Mr Collett, about the employment that some of these businesses provide, and certainly given the view that Banana Shire Council has about the importance of these businesses, what is the reason that they have not received any assistance?

Mr Wilkins : Just before Mr Collett can maybe answer some parts of that, it is unlikely that we have said that we are not worried about people or that businesses are too small to worry about.

Senator BOYCE: This was put to me.

Mr Wilkins : Yes, but I would like to know the name and serial number of people who have been saying that, if you could provide that.

Senator BOYCE: I am happy to provide that later. I cannot provide it right now, but I will.

Mr Wilkins : It is not at all what the philosophy behind this is, and I would like to know who is responsible for that. The major issue seems to be in the assessment of the area. I might get Mr Collett to explain exactly what process is gone through with the assessment of the area. This happens not all the time, but people are often aggrieved because of the nature of the assessment—they feel that they should have been given some money and that they were entitled to it. I am not saying that they have not got a legitimate case, but I will ask Mr Collett to—

Mr Sheehan : Before Mr Collett does that, I might just mention that the disaster income recovery subsidy, which involves the payment to the individuals, was activated for Banana, although—

Senator BOYCE: Sorry, it was activated for?

Mr Sheehan : For Banana, but the category C payment for small businesses is the one that wasn't.

Senator BOYCE: But I think that is the concern of the Banana Shire Council.

Mr Collett : The measure I was referring to before, the disaster recovery allowance, that sort of support is provided currently through the disaster income recovery subsidy, which is available to employees of small businesses and other employees in the Banana shire. It was category C assistance.

Senator BOYCE: Why was there no support available for those businesses?

Mr Collett : There was support available. It was not the category C measure that you are referring to, but there are other measures such as the DIRS payment that have been made available.

Senator BOYCE: To the employees?

Mr Collett : Yes.

Senator BOYCE: But I do not think the employees are going to clump their wages together and replace the vans that have been lost—

Mr Collett : No.

Senator BOYCE: or repaint the pub. That is the point. There has been no payment to keep the business going.

Mr Collett : You are quite correct. The clean-up and recovery grants for small businesses were not made available for Banana shire under category C.

Senator BOYCE: Banana Shire Council advises me that they have contacted the government on a number of occasions seeking an explanation for this and have yet to receive a response that explains the problem.

Mr Wilkins : I am not aware of that, but I will certainly take it on notice and come back to you on it.

Senator BOYCE: I am more than happy to provide their correspondence; I cannot do it right now.

Mr Wilkins : I would not mind further details of the sort that you referred to, but we will certainly look into that and come back to you.

Senator BOYCE: Are you able to provide on notice the number of small businesses, and the local government areas that they are in, in Queensland that did receive payments as a result of the activation after the Australia Day floods?

Mr Wilkins : I am not sure how big a task that is, actually.

Mr Collett : That would be a very large task. As was said earlier, Queensland administers the category C payments you are referring to. The Commonwealth contributes up to 75 per cent of that funding. Queensland's agencies would be collecting data about the businesses the grants were provided to. That is not something we would ordinarily receive and it would be quite large following the widespread activations of category C.

Senator ABETZ: I have a brief bracket of questions in relation to the COAG Review of Counter-Terrorism Legislation. Is this the appropriate place to bring it up?

Mr Wilkins : I am not sure, but fire away.

Senator ABETZ: The all-knowing secretariat has told me that this is where I should be asking this bracket of questions, so I will pass the buck if it is shown to be wrong. But I do thank them for the work they do and assistance they provide.

The COAG Review of Counter-Terrorism Legislation made a number of suggestions. Some of them, if I might be so bold as to say, were welcome suggestions dealing with hoax threats and hostage taking, but there were, I respectfully suggest, a few that give me cause for concern. I am looking around because I notice the minister has departed, and I suspect there may be some policy questions in relation to what I am about to ask. But let me try, in any event. Recommendation 13 was about omitting the subsection that 'deals with a situation where an organisation directly praises the doing of a terrorist act'; recommendation 16 was about 'exemptions for providing training to or receiving training from a terrorist organisation for purposes unconnected with the commission of a terrorist act'; recommendation 23 was about the repeal of the Criminal Code section 102.8 'Associating with a terrorist organisation'; and recommendation 39 was about the repeal of preventive detention legislation. Does the Attorney-General agree with those four recommendations?

Mr Wilkins : I cannot answer the questions.

Senator ABETZ: Minister, I am not sure what you heard and I fully accept that you were otherwise detained, so no criticism on that.

Senator Ludwig: I am happy to take it on notice in the sense that it would be on the transcript and I would not know the answer.

Senator ABETZ: Right. Are you briefed?

Senator Ludwig: No, I am not briefed on that issue.

Senator ABETZ: In that case—

Senator Ludwig: I heard the beginning of it, and there is no brief in my folder on that matter.

Senator ABETZ: What I want to ask is, for instance, what public purposes are served by making it legal to receive training from a terrorist organisation if it is not connected with a terrorist act? Do we really want or need al-Qaeda teaching Australians first-aid or bookkeeping or propaganda techniques? I raise this very seriously. When will the Attorney-General respond to the COAG review on counterterrorism?

Mr Wilkins : I do not have a time line on that. The other report that is out is also the monitor's report, which deals with overlapping recommendations. The two reports are not entirely consistent but they do overlap. I do not know what the time frame is. That is something that you will need to put to the Attorney-General, I think.

Senator ABETZ: If you can take that on notice. It has long been reported that Hezbollah operates in Australia and on 27 April the Australian reported comments by Sunni cleric Sheikh Bilal Radwan that there are at least three Hezbollah sleeper cells in Australia. Hezbollah has been involved in terrorist attacks around the world, and earlier this year the Bulgarian government found that an Australian citizen was involved in a Hezbollah terrorist attack that killed six people in Bulgaria on 18 July 2012. Meanwhile, Cyprus convicted another self-confessed Hezbollah operative of attempting to prepare terrorist attacks in that country. Do the Australian security authorities concur that Hezbollah has sleeper cells in this country and, if so, what can you reveal about what is being done to monitor their behaviour?

Mr Wilkins : I cannot really answer that question. You can appreciate that I run basically a policy shop. It is really a question for ASIO and the AFP.

Senator ABETZ: Albeit, the policy framework under which they operate will impact on what they do.

Mr Wilkins : Yes, but what I am saying is that I do not collect that sort of intelligence. I cannot really answer your question. I am not sure that ASIO would want to answer your question in an open session like this, either.

Senator ABETZ: I fully accept that.

Mr Wilkins : I can take it on notice—

Senator ABETZ: When somebody publicly boasts that there are such cells operating in Australia then it is a matter of concern for the citizenry of our country and—

Mr Wilkins : I hear what your say.

Senator ABETZ: if the authorities simply say, 'Oh, well, that's interesting, isn't it?' it might concern the citizenry that these boasts are not being taken seriously.

Mr Wilkins : Let me take it seriously. I will take it on board and discuss it with my colleague the director-general of intelligence and also the commissioner of police. Can I do that?

Senator ABETZ: Yes. Any questions that I am asking that you feel should be farmed out, if I could rely on your good offices to farm those out then to the relevant agencies, I would be most obliged to you, Mr Wilkins.

Mr Wilkins : I would also like to discuss with them the best way to handle your query, actually. I take your point.

Senator ABETZ: I accept that. Finally, Australia currently bans Hezbollah's external security organisation, but it does not ban the entire organisation, which enables it to operate in Australia under its social and/or political wing. Other countries such as the USA, Canada and the Netherlands ban Hezbollah in its entirety. Is the Australian government considering banning the entire Hezbollah organisation in Australia and, if not, why not?

Mr Wilkins : I think it would probably be inappropriate for me to comment on that particular question. I will take it on board. This has only recently gone before the committee of the parliament that looks at these issues. The legislation under which these declarations are made may differ considerably from the legislation that is used overseas. I know, from looking at some cases that I will not go into in detail—because that would be breaching national security—it is sometimes more difficult here to get some of these declarations made than it is under legislation in comparable countries offshore, overseas. Anyway, that is a long way of saying that—

Senator ABETZ: But if a country like the Netherlands has come to that conclusion? Some people might assert that the United States is a bit more hairy-chested than others on these issues, but I would have thought one would not assert that about the Netherlands.

Mr Wilkins : I am just very careful about making any clear statements in terms of what we may be intending to do or what—

Senator ABETZ: And I accept that. I suppose the point of asking this question, if I may be so bold, is to suggest engagement in some advocacy in relation to this issue, because I believe, as do many others, that these are important matters that do need to be dealt with.

Mr Wilkins : I can take that on board.

Senator ABETZ: All right. Thank you, Mr Wilkins.

CHAIR: Senator Ludlam, we will go to your questions.

Senator LUDLAM: Thanks, Chair. I will just seek some advice from the offices at the table, because I may be winding us back in the program. Maybe, Mr Wilkins, you can just give me some advice, because I think it is something that you know a bit about. I am interested in consultations that the department has been having with industry on data retention, which has been fed into the inquiry by the joint committee.

Mr Wilkins : I am just seeing if there have been some, Senator. We have not had any.

Senator LUDLAM: Since when? The department has been consulting with industry on this for months, if not years.

Mr Wilkins : Since about June or July last year, apparently.

Senator LUDLAM: Thanks.

Mr Wilkins : About the time it was actually referred to that committee.

Senator LUDLAM: Before or after?

Mr Wilkins : There have not been any since it was referred to the committee.

Senator LUDLAM: I see. I am with you. I understand there were consultations occurring in an earlier iteration of the data retention policy around 2009.

Mr Wilkins : I think there were some informal discussions. I think the consultation was done without, for example, my authority. So it was done on the initiative of officers thinking they would just have a chat about what this might involve—

Senator LUDLAM: Sorry, Mr Wilkins; are we talking about having a chat about the earlier iteration in 2009 or more recently?

Mr Wilkins : No, no—I am talking about that earlier one. That was an initiative by officers at a lower level. They were interested in getting details about what it might cost or how it might work. So I would not want to elevate this concept of 'consultation' to something that has been done with the blessing of ministers or the secretary or someone like that.

Senator LUDLAM: Okay. That is interesting. When you say it was lower-level officers doing this without your imprimatur, does that include the consultations that were occurring in June or July of last year? I am just going a bit off the reservation and flying some kites.

Mr Wilkins : I am not saying that I think these people need to be reprimanded, Senator. I am just saying they were—

Senator LUDLAM: No, neither am I—well, we could have an interesting discussion about that.

Mr Wilkins : They were doing what officers do when they take initiatives. I am just saying it was not instigated as a form of government consultation; that is all.

Senator LUDLAM: That is fascinating. How many meetings were there?

Mr Wilkins : I do not know.

Senator LUDLAM: Is that because these things did not have any formal standing as such?

Mr Wilkins : There were two, apparently.

Senator LUDLAM: Okay, there we go! We are making progress: there were two meetings. It sounds as though you might need to take on notice who actually initiated them. If you are not happy to—

Mrs Smith : I can answer that.

Mr Wilkins : Catherine did!

Senator LUDLAM: Wonderful. We are making progress.

Mrs Smith : Those meetings were initiated by me, as Mr Wilkins said. I went about seeking the advice of industry, which I do in my daily job in assisting the Attorney in administering the Telecommunications (Interception and Access) Act. It was brought to our attention by agencies that they were having issues with data no longer being collected or retained by industry, so they were essentially meetings to ascertain what kind of information they were keeping and no longer keeping so that we could advise government accordingly.

Senator LUDLAM: Thank you, that is helpful. And you chaired those meetings with internet service providers?

Mrs Smith : I did indeed, yes.

Senator LUDLAM: Are you able to provide us with the dates when those meetings occurred and any such records as exist of the meetings themselves?

Mrs Smith : I can certainly take that on notice. From memory, one was, I think, in March and one was in September, but I will definitely take those on notice—

Senator LUDLAM: Yes, if you could.

Mrs Smith : and as to who attended.

Senator LUDLAM: I suspect you will not be interested in providing me with names—that is fine—but any of the commercial participants who participated?

Mrs Smith : Yes, I do not have problems with providing that on notice.

Senator LUDLAM: That is much appreciated, thank you. I understand that at some stage there was an interdepartmental committee within the government that was set up to look into that issue. Is that the case?

Mrs Smith : Not to specifically look at data retention; that was just to generally look at the need to amend the Telecommunications (Interception and Access) Act in the light of new technologies being provided by industry which were doing what is considered to be 'going dark', which means that they would lose capabilities.

Senator LUDLAM: I understand that concept.

Mrs Smith : That is what the meetings were for.

Senator LUDLAM: Data retention would have been included amidst that set of issues?

Mrs Smith : Most certainly.

Senator LUDLAM: Can you just describe for us how I refer to this interdepartmental committee—what its name was, or what standing those sorts of entities have?

Mrs Smith : I think it was an interdepartmental committee. That is all I recall it being called, but I will certainly take that on notice.

Senator LUDLAM: That is great. Were you the chair of that?

Mrs Smith : No, I was not.

Senator LUDLAM: Who chaired that?

Mrs Smith : Mr McDonald, to my left.

Senator LUDLAM: So we have the experts at the table. That is good. When did the department begin the process of drafting data retention legislation?

Mrs Smith : We are not drafting data retention legislation. We had in the past consulted, and now we are awaiting an outcome of the Parliamentary Joint Committee on Intelligence and Security.

Senator LUDLAM: So at no stage were parliamentary counsel engaged to draft a bill?

Mrs Smith : Not on data retention, no.

Mr Wilkins : There have been discussions with parliamentary counsel.

Mrs Smith : Yes, but not—

Senator LUDLAM: Okay, discussions were had. Just talk me through what sorts of discussions were had.

Mrs Smith : This is on the broader reform or the broader need to reform telecommunications interception legislation, of which data retention is an aspect—well, that is not a reform; that is a new aspect. We have certainly engaged with the OPC to discuss the ways in which we could potentially modernise the legislation, but there have certainly been no decisions made on any of that.

Senator LUDLAM: I think the T(IA) Act has been amended since I have been here, which is not that long relative to some others, 45 times, so—

Mr Wilkins : Yes, exactly right, Senator. I actually talked to the parliamentary counsel himself and said that I had never seen such a Gothic piece of legislation with gargoyles and flying buttresses. It is not technology neutral, so I have been asking him if we could almost think about how we would go back to square one on this and start with a clean base.

Senator LUDLAM: That might be a rare point of concurrence between us, Mr Wilkins!

Mr Wilkins : So, if and when the opportunity arises to do something about the legislation, I hope the parliamentary counsel has done some thinking about what that might look like. That is really the type of discussion that has occurred. It is at that sort of level.

Senator LUDLAM: Was a regulatory impact statement—

Mr Wilkins : No.

Senator LUDLAM: initiated for not the broader T(IA) reforms but—

Mrs Smith : No, because we have not gone to cabinet, so it is not required at this stage.

Mr Wilkins : No, we haven't got anything like that detail.

Senator LUDLAM: So discussions were had with the OPC, but nothing was initiated as such?

Mr Wilkins : I discussed things with the parliamentary counsel, with the secretary to parliamentary counsel, effectively.

Senator LUDLAM: But there was no such thing as a draft of a bill that included data retention provisions?

Mr Wilkins : I do not know—nothing that I have got.

Mrs Smith : No, there were some very vague draft provisions, not to do with data retention though.

Senator LUDLAM: Okay. That sounds fairly unequivocal. We will take you on that. How often did the department brief your A-G—how many Attorneys-General have you been through since this process started? We will take two as my first guess. On how many occasions did the department brief your A-G on the legislation? Actually, there have been three.

Mr Wilkins : What legislation, Senator?

Mrs Smith : There is not—

Senator LUDLAM: I beg your pardon. I will say 'on the proposal for data retention'.

Mr Wilkins : We briefed Attorney-General McClelland on the need for reform. We briefed Attorney-General Roxon on the need for reform, and she, you might recollect, is the person who referred it to the parliamentary committee.

Senator LUDLAM: She did, and I saw her talking about it on YouTube.

Mr Wilkins : And we have—I do not know—

Mrs Smith : No, we have not briefed, because we—

Mr Wilkins : We have not properly briefed the current Attorney-General, but we will be briefing him. He has obviously been busy and it has been before the committee during his time in the role. But I think he is aware of a number of issues because he was Cabinet Secretary at the time it was referred to—

Senator LUDLAM: Yes, I expect that's true. So you would just say that on a number of occasions you have briefed all of the A-Gs, apart from the present one, during this phase of the proposal while the material has been with the joint committee?

Mr Wilkins : In slightly different forms and in slightly different contexts, but yes.

Senator LUDLAM: Did the department discuss a regulatory impact statement with the Office of Best Practice Regulation?

Mr Wilkins : I didn't.

Mrs Smith : We have not prepared a regulatory impact statement.

Senator LUDLAM: No, I did not say 'prepared'. Was the creation or promulgation of a RIS discussed?

Mrs Smith : My understanding is that we have to prepare that when we are going to cabinet, and we are not anywhere near that stage because we are still seeking views from the PJCIS.

Senator LUDLAM: Mrs Smith, you chaired a consultative group around industry. What was the general tenor of industry's response to the data retention proposal?

Mrs Smith : I would need to go back to the minutes of the meeting. I understand that a lot of industry give their comments on an in-confidence basis. I would have to go back to those comments before I could disclose. Generally industry are always very keen to work with us on how we can appropriately modernise the legislation to the best benefit of law enforcement and their own interests.

Senator LUDLAM: Could I ask you to table those minutes for us.

Mr Wilkins : Can we take that on notice?

Senator LUDLAM: Sure; I will play along. So you are not able to tell us the tenor of industry's response without naming names or breaching confidentiality?

Mrs Smith : I cannot recollect any of them in particular, but I note that most of them made submissions to the Parliamentary Joint Committee on Intelligence and Security which would clearly give their views.

Senator LUDLAM: Yes, which are pretty strident in some cases. Some members of the joint committee have expressed at public hearings their concerns about the poor quality and rather vague nature of the proposals put forward by the then Attorney-General McClelland in the discussion paper in which the data retention proposal is canvassed so sketchily as to not really be canvassed at all. Does the department accept those comments as fair criticism?

Mr Wilkins : Yes.

Senator LUDLAM: Have you reviewed the preparation of that paper to determine how it could provide better material for committees considering issues like that?

Mr Wilkins : We have not reviewed that paper.

Senator LUDLAM: Let me put that another way. Is there another copy of the proposal, or is there other material that has been put to the committee?

Mr Wilkins : No.

Mrs Smith : The department has made a number of public submissions and former Attorney-General Roxon wrote letters which were also on the public record.

Senator LUDLAM: Is there a reason why the department refused to provide a copy of the proposal to the committee and did not discuss the existence of it until pressed to do so by Senator Faulkner at a public hearing? It took quite some time for that information to be forthcoming.

Mrs Smith : My understanding is that data retention was given attention in the discussion paper. As I mentioned earlier, it is only one part of a greater reform of interception legislation. We answered questions when we appeared. Both Mr Wilkins and I appeared.

Senator LUDLAM: Mr Wilkins, going back to your earlier comment about a root and branch review of the TI Act, that is something we have been calling for for quite a period of time. So perhaps it is something that we will be able to do down the track. Mr Wilkins, at a public hearing of the JPCIS in November on the national security reforms, in response to a question about whether data retention would be effective when internet users use an encrypted writing system like TOR you said, 'The department or the relevant law enforcement agency could require the key to the encryption to be provided as well.' You probably do not have that transcript in front of you, but is that—

Mr Wilkins : I cannot really recall. I do vaguely recall a conversation about encryption. What is the question, Senator?

Senator LUDLAM: I am just trying to tease out how this would work. If data retention was enforced in Australia for a period of however long, and an internet user is using an encrypted router service like TOR, it would effectively bypass the whole purpose of data retention. So, firstly, because I had a surprising response from the PM's cyber security people the other night, is the department aware of the existence of the TOR encryption service?

M r s Smith : Yes. The use of those sorts of technologies is normally to protect the content of communications. Data retention is about industry only collecting the information for which they are collecting for their own business purposes. I am sorry if there was some confusion with an earlier answer I gave before the committee.

Senator LUDLAM: No, that is right.

M r s Smith : Essentially an encryption key would only be used where there is an interception warrant in place which allows an agency to access the content of a communication, and the encryption key would be used under the force of that warrant so as the information could be provided and clear to be used as evidence or intelligence, as the case may be. Data retention, if the information is not available to a carrier, then they cannot retain that information—it is of no use to them either.

Senator LUDLAM: Yes. Can I just be clear: TOR is not an encryption service per se; it is an anonymiser?

M r s Smith : That is right.

Senator LUDLAM: You are familiar with that?

M r s Smith : I am familiar with that. We were talking about encryption keys and I was just explaining the purpose—

Senator LUDLAM: Yes, understood. TOR does not have permanent encryption keys.

M r s Smith : No, that is right.

Senator LUDLAM: And temporary keys are not available to assist admins anyway.

M r s Smith : Yes.

Senator LUDLAM: You are basically acknowledging that it simply would not apply—data retention would not apply in the case of somebody using that service?

M r s Smith : That is correct, unless the industry participant was able to have that information in the clear and they retained it for their business purposes—and it is very unlikely—

Senator LUDLAM: We have agreed that that is very unlikely that they would do so.

M r s Smith : Correct.

Senator LUDLAM: How would you respond to the argument, then, that even freely available encryption and anonymisation tools like TOR, let alone the commercial ones, would utterly defeat the purposes of data retention? If somebody wanted to avoid their material being held it is trivially easy for them to do so?

M r s Smith : My understanding from working with the agencies is that is the reason they want to see major reform to the legislation is to give them better tools to deal with these new technologies. I cannot give you the answer as to what that response would be.

Senator LUDLAM: Presumably those tools would need to include breaking those sorts of encryption services so they could not be used—

M r s Smith : Possibly.

Senator LUDLAM: Is that where this is heading? I think I will leave it there. That has been extremely instructive. Thank you.

CHAIR: That concludes all the questions we have for group 3.

[20:37]

CHAIR: We will now move to group 2. Could those officers come forward, please. Mr Wilkins, are you group 2 all by yourself?

Mr Wilkins : Yes. I have the minister.

CHAIR: That is hugely impressive.

Senator LUDLAM: He's got an answer for everything!

CHAIR: Is this a new strategy now, is it? They have all devolved their responsibility to you—I like it!

Senator Ludwig: It will be quicker.

Mr Wilkins : It will depend on what area.

CHAIR: Are they not here?

Mr Wilkins : No, we are happy to continue. We can start.

CHAIR: They are just going to shout from the back, are they?

Mr Wilkins : We can start.

Senator RHIANNON: Thank you, Mr Wilkins. Could you provide us with an update on the Hawke review?

Mr Wilkins : Once we find out what area you are interested in. I think the review is reporting imminently.

Senator RHIANNON: Could you explain what 'imminent' means to you, considering I understood that it was supposed to be tabled 14 days after 30 April?

Mr Wilkins : 'Imminent' means very soon.

Senator RHIANNON: Yes, and life is relative. That is why I would ask you for a clearer definition, please, because it has been dragging on.

Mr Wilkins : I am not sure I can be much clearer than that because it is really a matter for Mr Hawke.

Mr Minogue : Senator, what Mr Wilkins says is right. Mr Hawke has completed his review, the Attorney has asked him to write a formal report as permitted under the FOI Act, and once that is done the Attorney will table it within the statutory time period.

Senator RHIANNON: Wasn't the statutory time period 14 days after 30 April?

Mr Wilkins : Yes, it was.

Senator RHIANNON: So we are outside the statutory period now.

Mr Minogue : No, it was sitting days.

Senator RHIANNON: When does that expire?

Mr Minogue : It would be before parliament rises, we expect.

Senator RHIANNON: So, sometime in June.

Mr Minogue : Yes.

Senator RHIANNON: Could you actually say what the process is after it is tabled, please?

Mr Minogue : Once the report is tabled, government will consider the recommendations in the report and findings and the basis on which those recommendations were made, and government will respond to that report.

Senator RHIANNON: Will there be further consultation on the recommendations of this review in the context of the Open Government Partnership plan development process?

Mr Wilkins : What is that, Senator?

Senator RHIANNON: That is a wonderful international agreement that 58 countries are part of, and Australia just joined up after a long period.

Mr Wilkins : Probably not, but it will be put into the parliament and into the public domain for discussion.

Senator RHIANNON: When you say 'put into the parliament and into the public domain' for discussion, what does that mean?

Mr Wilkins : That means that it will be made public.

Senator RHIANNON: Right, and then the discussion part of your sentence? Is there a formal process where people can engage or is that just the flourish.

Mr Wilkins : I am speculating, but I expect people will write in about this and that the department will take note of that, and ministers, cabinet and the Attorney-General will take note of that. I suspect it will probably be talked about in fora like this as well.

Senator RHIANNON: Thank you. Because the Open Government Partnership is so significant is that giving some greater context to how the report will be handled?

Mr Wilkins : No.

Senator RHIANNON: It is significant that we are now part of it.

Mr Wilkins : It is significant.

Senator RHIANNON: But it is not going to change how we handle this.

Mr Wilkins : No.

Senator RHIANNON: Thank you.

Senator BOYCE: Most of my questions come under 1.3, I hope, so let's see where we get to. At the last estimates, Mr Wilkins, you told me that the National Plan to Reduce Violence Against Women and their Children would be progressed through the Standing Council on Law and Justice and was on the agenda for April 2013. Could you outline what has happened?

Mr Wilkins : I can to some extent, and if my experts come to the table they can probably tell you even more. It has been considered now by attorneys, by ministers for law and justice. There has been a response, which has been approved by all ministers.

Ms Glanville : With the report on family violence the national response is now up on the website of the Standing Council of Law and Justice. The Commonwealth response is still being worked on, and the remainder of the recommendations are with the states and territories for them to respond.

Senator BOYCE: How many recommendations have we got through?

Ms Glanville : The ALRC 114 report, Family violence—a national legal response, there were 186 recommendations in that report and 97 of those were identified as recommendations that needed to be responded to by states and territories only, 22 were identified as being recommendations that needed to be responded to by the Commonwealth only. That is the one that we are currently working on. Twenty-four have been jointly responded to by the Commonwealth and states and territories by the Standing Council on Law and Justice, and that went on their website on 4 April.

Senator BOYCE: Twenty-four have been jointly responded to.

Ms Glanville : Twenty-four, yes. There are nine which are being looked at by the National Justice CEOs Group, which is the heads of justice departments in AGD around the country—

Senator BOYCE: Which nine are they? Is that publicly available?

Ms Glanville : They may only relate to the intersection between the family law system and the child protection systems around the country. So it is a collaboration task, and there has been quite a bit of work done in relation to that. Then there is the balance: 34 recommendations that have been identified as relevant to all, but which are being responded to by each jurisdiction separately. So it is quite a complicated array, but we have tried to target the recommendations as carefully as we can to get the most action in the shortest time possible.

Senator BOYCE: As to the nine that are being looked at, when would you expect responses to be happening on those?

Mr Wilkins : I will have to take that on notice. I think that is being dealt with by the National Justice CEOs Group, of which I am a member. We are meeting this Friday, so maybe I can have a talk to them about that—sorry; Friday week I think it is.

Senator BOYCE: I am just trying to get a sense of this. So we are halfway through? Could you put some context around that perhaps.

Ms Rainsford : Certainly. In a sense, I would say that the Commonwealth is about halfway through, in that we had a responsibility to contribute to the national response, which was the component Ms Glanville referred to that was progressed through the Standing Council on Law and Justice. The other part for which we are responsible is the Commonwealth response; that relates to those recommendations which are specific to us or which jurisdictions have agreed each will take responsibility for. A draft of the Commonwealth response is well progressed and we would hope that that will be finalised and progress through to finalisation by the government reasonably soon.

Ms Glanville : If I could just continue on from Ms Rainsford's response, a significant number of the Commonwealth response recommendations have already been progressed and are in the public domain—things like the changes to the Family Law Act in relation to family violence and definitions of family violence; that is one of the recommendations, as is a greater focus on training packages around family violence. So a little while ago we released the AVERT Family Violence training package which tries to assist professionals in the area in particular to understand more about family violence and be more attuned to the sorts of issues that arise in situations of family violence. We have also prepared the DOORS package, which is attributable to another recommendation and is now public; it is a sort of assessment and risk package to help lawyers particularly. It is the first time really we have seen an instrument or a tool that lawyers can use, in what might be a very short interaction with a client, to distil whether there are issues of family violence present. So, even though the Commonwealth response is not public as yet, when it is public the good news will be that many of the things in it we have already been progressing over time.

Senator BOYCE: This is a more general question towards the federal government: Victoria's plan on violence against women and children makes the point that a quarter of all perpetrators of violence against women and children are repeat offenders. Could someone perhaps talk in terms of the standing council as to whether this statistic would be a generally national one, and whether this is something that is being considered within a broader context than what each state is going to do about it.

Ms Glanville : I would find it hard to comment on that. It would not surprise me if that was in fact replicated in places other than Victoria. That would certainly not—

Senator BOYCE: It would not surprise me either, but do we know?

Ms Glanville : No. We would have to take that on notice. Perhaps it might be that the Australian Institute of Criminology has looked at some of this research and trending in the way that you are suggesting. It is certainly something that we could take on notice and have a further look at.

Senator BOYCE: My other questions are in relation to Indigenous incarceration. I do not know, Chair, if other people have questions here or not?

CHAIR: If you keep going, you can get your questions done with, basically.

Senator BOYCE: The proposal has recently been put that the rate of Indigenous incarceration should be included in Closing the Gap targets, and I was wondering whether this has been raised within Attorney-General's and how you are able to respond to this.

Mr Wilkins : It is an important issue. The idea of a target—whether this is the correct target to choose or not we might come to in a moment—is something that has been advanced by this department and by successive Attorneys at the Commonwealth level for some time, going back to Attorney-General McClelland, at least in my experience, and maybe even before that, for all I know. It has been somewhat disappointing that the targets that were adopted by the COAG did not include one for public safety or one that had to deal with criminal issues as a key target in terms of Closing the Gap, because our contention has all along been that doing something about public safety in particular, people feeling safe in their communities, is a precondition for doing other things like rolling out decent education systems and health systems et cetera. So we have advocated that for some time.

In fairness, I think the attorneys general of the states and territories are largely positive about the need for something like a target too, although there is variation amongst them about how that target should be defined and how, I suppose, set in cement it should be. I remember the Western Australian Attorney General at the time making the point that, if you really got law and order and public safety working properly in communities, the first thing you would notice is more people being convicted or arrested, because there are lots of horrible things happening in those communities where women feel unsafe and kids feel unsafe. So the first thing that would happen is actually that the rate of at least arrest and maybe conviction would go up rather than down. What you would be looking for are long-term trends in terms of people feeling more safe and people integrating better back into their communities.

So what measure do you use? There has been a lot of discussion around that. One of the concepts is in fact to look at the concept of public safety rather than the rate of incarceration. The rate of incarceration is a big problem—there is no doubt about that—but whether it is the key indicator in terms of Closing the Gap is a different question. Is the more important measure the safety of communities, and in that case would you do victim surveys, for example, of Aboriginal communities and see whether people felt less threatened?

Senator BOYCE: It often comes down to what you can measure, doesn't it, Mr Wilkins?

Mr Wilkins : Yes. We can do victim surveys. We do them now, and the Institute of Criminology and the New South Wales criminology people do it on a regular basis, so we could do that, and that could be a measure of how communities feel. In any event, the question about whether or not there will be a measure of this sort as a target within the Closing the Gap agenda and the question about whether this will be part of the national partnership agreements around Closing the Gap are matters that are being, I think, discussed through the COAG. The COAG had asked, I think, Minister Macklin to take this up, because she has overall responsibility for this issue. We are still hopeful that something will emerge from those discussions. I think it is probably fair to say of my colleagues in the states and territories that they and the attorneys-general are also quite keen to see movement on this front, although, as I say, there are variations between states and territories and they have different views about how it should be progressed. I hope that gives you some insight. That is where we are sort of up to.

Senator BOYCE: Yes, that is helpful. In previous estimates, I think it was you, Mr Wilkins, who said that there had been a working group, with FaHCSIA taking the lead, established to look at the issue of Indigenous prisoners with cognitive impairment, and that the attorneys-general were to have someone on that working group. I was wondering if you could give me some more—

Mr Wilkins : I think we will have to take that on notice, actually. I have just had a quick word to Mr Manning; I do not think there is anything I can update you on at this point.

Senator BOYCE: Has that working group met?

Mr Manning : I understand from FaHCSIA that it has met by teleconference on a couple of occasions. They are still settling their terms of reference and deciding on the projects that will be the focus of their immediate work. But I do not have any details about those options.

Senator BOYCE: Are you currently the person who would represent A-G's on that?

Mr Manning : No, no. A-G's is not on it; FaHCSIA represent the federal government on it.

Senator BOYCE: Okay. Sorry; I understood that FaHCSIA were taking the lead and you were also involved. Thank you.

CHAIR: Senator Xenophon.

Senator XENOPHON: I want to go to the Defence Abuse Response Taskforce. Mr Wilkins, by accepting the reparation payment through the data process, can you confirm that it will not affect current entitlements to service pensions, government disability payments and superannuation benefits?

Mr Wilkins : Yes, we can answer that.

Senator XENOPHON: Thank you. Previously, the defence minister and senior government representatives have indicated that reparation amounts paid to claimants under the scheme are not to be classified as compensation, and that survivors of sexual abuse will still have open to them both their common-law and statutory entitlements. That is correct?

Mr Wilkins : That is true.

Senator XENOPHON: Right. Can you confirm that, where a claimant chooses to pursue their common-law entitlements, the government will not rely on any statutory defence in relation to time limits?

Mr Wilkins : I cannot confirm that. That is a matter we have not really thought about. If somebody brings an action outside of this entire process—is that what you are talking about?

Senator XENOPHON: No, no. If someone brings a common-law action outside this process—

Mr Wilkins : Yes, that is what I mean.

Senator XENOPHON: and, invariably, in these sorts of matters you need to get an extension of time—will that be a point that is taken in terms of the limitation of actions?

Mr Wilkins : I cannot answer that question. If they sue Defence, it will be a matter for the Department of Defence and for their counsel at the time. So I cannot answer that question.

Senator XENOPHON: Your department is responsible for administering—

Mr Wilkins : It is responsible for administering this, but it is not responsible if somebody wants to bring an action outside of this—

Senator XENOPHON: I did not actually get my question out, sorry. I was saying your department is responsible for administering—sorry, your department is responsible—

Mr Wilkins : We're certainly responsible! I agree with you on that one!

Senator XENOPHON: Finally, after how many estimates, we agree on something! Thanks, Mr Wilkins! Your department is also responsible for the Royal Commission into Institutional Responses to Child Sexual Abuse—correct?

Mr Wilkins : Yes. I explained the limits of my responsibilities in my opening statement. I do not run it.

Senator XENOPHON: You do not run it but you can at least—

Mr Wilkins : I've got the budget.

Senator XENOPHON: You don't run it but you have the budget. Holding the purse strings is very important. I just want to give the contrast here: the government has recognised the need for survivors to retain their own independent counsel and need for legal assistance with the royal commission—is that the case?

Mr Wilkins : I do not know. That is an operational matter, actually.

Senator XENOPHON: Can you take that on notice?

Mr Wilkins : Let me take it on notice whether I can.

Senator XENOPHON: Hang on, you are taking on notice as to whether you can take it on notice?

Mr Wilkins : Yes. I made a statement this morning explaining that the royal commissioners are quite careful about their independence. If you were a person involved in this royal commission and you had the Secretary of the Attorney-General's Department explaining how this was going to operate you might think this was not an independent royal commission.

Senator XENOPHON: I am acutely aware of the importance of the independence of the royal commissioners.

Mr Wilkins : I will try and get an answer for you.

Senator XENOPHON: I think you are very cleverly deflecting me on this, Mr Wilkins—maybe intentionally or not. What I want to know is: has the government set aside funds in relation to the Royal Commission into Institutional Responses to Child Sexual Abuse for victims or those who have a complaint to obtain legal representation?

Mr Wilkins : There is a scheme for legal representation, yes.

Senator XENOPHON: That does not impact on the independence of the royal commissioners.

Mr Wilkins : No, and it is being run by the department; that is true.

Senator XENOPHON: So let us get back on track—that is the case. Why isn't the department providing similar independent support for those who have made allegations of abuse within Defence? There is a parallel. We are talking about similar things, allegations of abuse—not child sex abuse but allegations of sexual abuse in the context of an institution's response.

Mr Wilkins : The modus operandi is somewhat different. What is happening with the Defence task force has to do with triaging cases and seeing whether they should be matters for investigation or compensation. We are not actually investigating. It may not involve the level of investigation of the royal commission. I do not think they are similar sorts of operations, actually.

Senator XENOPHON: The DART process is in part about the way that Defence responded to allegations of abuse within an institution—namely, Defence—correct?

Mr Wilkins : But then that will be sent through Defence disciplinary proceedings, and at that point the question of legal representation may arise. At that point the question of whether a person should have a lawyer, whether they are actually a victim or an alleged perpetrator, would come up. Or it may be sent to the police for further investigation and perhaps prosecution. At that point the question of legal representation may come up or not. Do you see what I mean? This is a step removed from that.

Senator XENOPHON: I guess that those who are involved in the DART process—the Defence abuse process—feel that there is an appreciable difference in the way that they can access the cost of legal representation.

Mr Wilkins : You see, it is an inquisitorial type of process. I am not quite sure that the idea that somebody needs to be represented is necessarily of the essence in the same way that it may be in cases where somebody is actually being investigated, in the same way that police would investigate, in relation to the royal commission. Let me just say that the scheme does not include that.

Senator XENOPHON: Perhaps you could take on notice what the actual policy of the government is in relation to defending claims where there is a limitation of time—point taken—in relation to the Defence Abuse Response Taskforce.

Mr Wilkins : Yes.

Senator XENOPHON: Can I just go on to the issue—again, a contrast between the royal commission and the Defence Abuse Response Task Force.

Mr Wilkins : Yes.

Senator XENOPHON: I understand that the lead royal commissioner has served notice on the Catholic Church and its insurer, as well as the Salvation Army and the DPP, seeking production of documents. Of course, that is a matter for the royal commissioner. It has also called on organisations to waive confidentiality agreements in relation to out-of-court settlements. If the chair of DART, who has his own independence, were to request a similar disclosure of documents, would the department comply?

Mr Wilkins : They would only be asking for the defence department to do that—

Senator XENOPHON: Yes.

Mr Wilkins : And the defence department, of course, would comply, because they would be required to comply.

Senator XENOPHON: So there is no issue of those matters—

Mr Wilkins : I do not think that is a real issue, no. Because they are under the governance of the government, so to speak—they report to the Minister for Defence, the Secretary of Defence and the Chief of the Defence Force—I do not anticipate that there is a problem in terms of authority.

Senator XENOPHON: Chair, you will be pleased to know that I have a number of questions that I think would be best put on notice that relate to the amount of legal fees paid in relation to defence matters, defence abuse matters and a number of related matters. I think it is best to put those on notice. You can get rid of me quite easily.

CHAIR: If I had known it was that simple. We will now go to Senator Wright. Thank you, Senator Xenophon.

Senator WRIGHT: My first question relates to part 7 of the Crimes Act relating to disclosing Commonwealth pardons, quashed convictions and spent convictions. Do I have the right people here for that?

Mr Wilkins : Possibly. I do not think I have had any questions on that.

Senator WRIGHT: Let's go for it, then. Let's see. In 2010 the government amended the Crimes Act with the effect that information about Commonwealth pardoned, quashed or spent convictions can be disclosed to and considered by prescribed bodies to assess whether a person is suitable to work with children.

Mr Wilkins : Yes.

Senator WRIGHT: It did so by inserting in subdivision A and the new provisions included a requirement for two reviews—one during 2011 and another to commence by 30 June 2013. My understanding is that the first review concluded that, because the amendments came into effect the previous year, there was limited information available about their operation. It noted that in 2013 the review would yield a more detailed picture. So I am interested in asking some questions about the 2013 review.

Mr Wilkins : Unfortunately, that was group 3, and group 3 has now left. But if you give me the questions I will take them on notice.

Senator WRIGHT: That is a shame. I was advised that was group 2, unfortunately. All right, I will give those questions to you on notice. There is no point going through those at the moment. They will revolve around what that review will look at and to what extent it will take into account the findings of the previous 2011 review.

Mr Wilkins : And would probably take into account, I would imagine, any findings that came out of the royal commission. A lot of these provisions came out of the Wood royal commission in the first place.

Senator WRIGHT: I will put those on notice. The next lot of questions I have are in relation to the Optional Protocol to the Convention against Torture—OPCAT. Is this the right group for that one?

Mr Fredericks : It is.

Senator WRIGHT: The department advises that Australia is currently working towards ratifying the Optional Protocol to the Convention against Torture—OPCAT. I understand that there are two aspects to ratification: the model legislation allowing for visits by relevant United Nations subcommittees to places of detention in the states and territories, and the development of a national preventive mechanism. Can you first of all address the national preventive mechanism and give an update on the progress of that and how it relates to the model legislation?

Mr Manning : I can. The model legislation that has been developed in consultation with the states and territories deals with issues by the SPM—the international body. It does not deal with the national preventive mechanism. That would have to be the subject of further consultations with states and territories and consideration by government following passage of the model legislation. The plan is to have the model legislation passed in each of the jurisdictions.

Then Australia would, consistent with longstanding practice, be in a position to ratify if it decided to do so at that point in time. I think I might have said at last estimates, and certainly the government's response to the Joint Standing Committee on Treaties inquiry into this treaty was, that it would delay ratification by three years in accordance with the provision that permits that in the treaty—it is not mandatory, obviously—and that during that period of time it would finalise arrangements for the national preventive mechanism.

Senator WRIGHT: So what is the projected time then, the three-year delay? That was not something that I understood was the case, so some more detail about that would be helpful, thanks.

Mr Manning : No, the treaty permits parties to take up to three years to finalise its implementation, and the government had indicated that it was going to take advantage of that in order to finalise arrangements for implementation. I think I might have said last time that the reason for that is just purely the complexity of organising and implementing this regime in a federal system such as Australia.

Senator WRIGHT: So is it fair, then, for me to understand that, at the moment, the development of the national preventive mechanism would not really be occurring until the model legislation has been finalised and then passed by all the states? Is that right?

Mr Manning : Further work—that is fair. Certainly, work and thought have gone into it already, but it is envisaged that the steps necessary to make final decisions and establish it would not occur until Australia is closer to or indeed had ratified the treaty.

Senator WRIGHT: The reason I am asking these questions is that there is concern that there is real drift occurring in this, and there is a lot of interest in members of the community to see this happen. I understand that the national interest analysis recommended OPCAT's ratification in February 2012, and the Joint Standing Committee on Treaties tabled its report in June 2012, recommending the ratification, so there is considerable support for the idea. I am really interested in knowing what progress is being made, so can you give an update on the progress within the states now? Also I am interested in knowing whether it is envisaged that the model legislation would be introduced by the states and territories only, or is there going to be complementary Commonwealth legislation as well?

Mr Manning : Certainly, Senator. The Commonwealth has received notification from all states and territories—although I understand it is at officials level only from the Northern Territory at this stage—in relation to the model bill, with no state or territory indicating that it will not progress the model bill. So we are now in the situation of each state and territory going through the process of finalising and introducing for passage its legislation, and indeed I understand that the ACT has already introduced a bill, so there is on the public record an example of the model legislation, although there will be stylistic differences across jurisdictions as they do it. So at the moment we are in the situation of waiting for the passage of the legislation in each of the states and territories.

In relation to the Commonwealth, the Commonwealth is finalising its policy approval in relation to the model bill. There are just a couple of minor issues in terms of working out how it will work, particularly in some of the more prescriptive regimes that apply in relation to situations of detention by the Commonwealth. I will give you one example with Defence. Their practice is to have continuous CCTV footage as a safeguard in places of detention, but of course the treaty calls for confidential visits by the SPT, the international body. So there are just details that have to be resolved in terms of how that happens before final Commonwealth policy approval. And there will need to be Commonwealth legislation as well.

Senator WRIGHT: There will be?

Mr Manning : Yes.

Senator WRIGHT: Presumably that consideration can be happening right now. It does not actually rely on these states to—

Mr Manning : No, that is happening.

Senator WRIGHT: So there will not necessarily be delay once all the states have done their bit?

Mr Manning : No, it is not a situation where, once the final state or territory has passed legislation, then the Commonwealth thinks about it; the Commonwealth is an equal party in terms of progressing its own legislation.

Senator WRIGHT: Are there any major substantive issues that any of the other jurisdictions have cited as impediments to supporting the model legislation? You have said that they have indicated that they are all progressing—

Mr Manning : There are no major impediments that have been identified. I think one or two jurisdictions, or perhaps three, had asked for some further detail in the form of what is called ministerial arrangements. But this is work on the logistics of how things would happen in practice—really nuts and bolts things. For example, if we were notified by the international body that they were coming, who would the Commonwealth contact? If, for example, there happened to be a disturbance in a place on the day, who would need to be contacted about it? So those logistics are being worked through, as distinct from any major issues. As I said, no-one has identified any major issue, and in fact our working understanding is that everyone is progressing their legislation.

Senator WRIGHT: What kind of regular discussion is there about this? Is this a standing item on the SCOLJ—a nice acronym; the Standing Council on Law and Justice—agenda? Is it discussed each time there is a SCOLJ meeting?

Mr Wilkins : The practice has been for successive attorneys to discuss it; update; see if there are problems. I would not say it is a standing item, but in effect it has been, yes.

Mr Manning : At a level lower than heads of jurisdiction there is also an interjurisdictional working group taking the work forward, and indeed there has been a group working through the drafting of the model bill as well which reports up to the group the secretary described.

Senator WRIGHT: So when does the three years run until, or when does it run from?

Mr Manning : It is from ratification. The treaty permits implementation over a three-year period if required, and, in its response to that Joint Standing Committee on Treaties report you mentioned earlier, the government indicated that it foresaw it would need to take advantage of that—although, obviously, if things can happen quicker at the time, then things can happen quickly.

Senator WRIGHT: So do we have a hopeful date that you would like to suggest we should be considering now?

Mr Manning : We do not, only because in each state or territory passing its model legislation they obviously have to put it through cabinet and get it through their parliament, which makes it difficult for me as a Commonwealth official to sit here and predict with any certainty when it could happen.

Senator WRIGHT: I appreciate that.

Mr Wilkins : Senator, you have said you are worried about the speed at which this is moving. Can I say: if you compare it with other treaty processes and with other treaty processes in other countries, this is moving at lightning speed.

Senator WRIGHT: It is not just me who is worried, Mr Wilkins; it is actually quite a substantial number of stakeholders.

Mr Wilkins : But I am just saying: if you put it in context, it is moving quite quickly, actually.

Senator WRIGHT: It sounds, from what you have said, that you would not envisage that this would be necessary, but I understand that the department has advised that it has legal advice from the Australian Government Solicitor about the constitutionality of implementing it via Commonwealth legislation only—because things can change. In the event that there was no agreement or that the states and territories were moving at an inordinately glacial pace to pass their legislation, what alternative method of implementing the international obligation would the department have at its disposal?

Mr Wilkins : I do not think we would advocate that, mainly because the administrative arrangements that you would really need to put in place, to deal with prisons and aged-care facilities and all sorts of facilities, would be ridiculously expensive. Even if you had the legal power you would not have the administrative capacity to implement this. From discussions with my counterparts in countries like Germany, it would be impossible for the federal government to do, effectively. So we need to think very carefully, and that is why we have made such a point of seeking to do this in a cooperative fashion with the states and territories. There is always, presumably, some sort of capacity to use the external affairs power, but I think we would be reluctant to do that and it does not appear to be necessary, actually.

Senator WRIGHT: Mr Manning, you mentioned that there have been some considerations the Commonwealth has had to work out in terms of the logistics of how this could be implemented on the ground, such as the Defence CCTV continuous footage. Are there any particular matters that need to be considered in terms of implementing the UN visits to detention centres—particularly offshore detention centres?

Mr Manning : Not that I am aware of. Mr Abraham, do you know of any?

Mr Abraham : No.

Mr Manning : No, there are none that I am aware of, although my understanding is that the treaty applies to all places of detention within Australia's jurisdiction and control, so I think there is a factual issue that would have to be decided in relation—

Senator WRIGHT: What is the factual issue there, Mr Manning?

Mr Manning : Whether or not a particular place of detention—whether that occurred in an immigration context or, for example, a defence context—is actually within Australia's jurisdiction and control.

Senator WRIGHT: So would Manus Island detention centre be covered by this OPCAT treaty?

Mr Manning : You are asking whether Manus is within Australia's jurisdiction and control?

Senator WRIGHT: Whether it would be, yes.

Mr Manning : I do not know the answer to that. That would require an assessment of the arrangements that were in place at the time, should Australia become a party to it—although, for example in Manus and Nauru, my understanding of them is that they operate pursuant to the laws of those countries.

Senator WRIGHT: But there is a question, isn't there, about whether they are within Australia's effective control and whether they are within Australia's jurisdiction?

Mr Wilkins : I am not sure that PNG would see it that way, or Nauru.

Senator WRIGHT: No, but I am interested in how the Attorney-General's Department sees it.

Mr Wilkins : Well, no, I think we would say that. I think we would say it is a matter for PNG, actually. And, if they are the signatories to OPCAT, then it is a matter for them.

Senator WRIGHT: So if there were concern raised about the necessity to investigate or have visits at Nauru, or where Australia is sending asylum seekers, you are saying right now that you would take the view that that would not be within if Papua New Guinea had not signed up or—

Mr Wilkins : I think PNG would also take that view. They are signatories to the OPCAT—

Mr Manning : No, I am told Nauru is; I do not know about Papua New Guinea.

Mr Wilkins : Nauru, okay. But in any event—

Senator WRIGHT: That is an important matter to be pretty clear about, though, isn't it—

Mr Wilkins : Yes and no.

Senator WRIGHT: given that there may well be concerns raised, and the whole idea of ratifying this convention is to ensure that there is a level of accountability and scrutiny?

Mr Manning : One issue that also needs to be borne in mind is that whatever the position of Australia is in relation to these centres—and the secretary said, I think, that the position would be that they are not areas over which Australia is exercising jurisdiction and control—of course the members of the committee could not enter without the consent of the host country in any event, which is a good indicator about who is actually exercising jurisdiction over the place.

Senator WRIGHT: Thank you for that. I am going to turn to some brief questions around Australia's international obligations with respect to detaining young people, and what they would be. Can you just give me some guidance about that?

Mr Wilkins : Well, it depends. Ask the questions.

Senator WRIGHT: The question is: what international obligations does Australia have with respect to detaining young people?

Mr Manning : I have copies of human rights treaties in my bag if—

Mr Wilkins : I think that is a large question, actually.

Senator WRIGHT: It is, yes. So what—

Mr Wilkins : Are you seriously wanting—

Senator WRIGHT: Yes.

Mr Wilkins : Okay. I do not know the way to deal with that, but that is almost a treatise. What are Australia's international obligations to detainees?

Senator WRIGHT: I mean, I suppose, what are the relevant international law—

Mr Manning : I can speak generally.

Senator Ludwig: We might have to bring it down into a digestible point.

Mr Wilkins : I can get Mr Manning to give a very general response, if that is helpful.

Senator WRIGHT: Perhaps that would be enough, or maybe it would be helpful to then take it on notice to give a bit more detail about that.

Mr Manning : There is—

Senator WRIGHT: There is increasing concern in Australia about the detention of young people and the nature of the detention that they are undertaking, and I am interested in knowing what our international obligations would be about that.

Mr Manning : There are obligations of a general nature in relation to anyone who is detained—in, for example, the International Covenant on Civil and Political Rights—for example, obligations in relation to humane treatment. There are obligations in relation to not detaining people arbitrarily which apply to adults and children equally. Then there are also obligations in relation to the Convention on the Rights of the Child about using detention as a matter of last resort—however, Australia has reservations in relation to those obligations, mainly borne as a result of the geographic situation in Australia.

Senator WRIGHT: What do you mean by that?

Mr Manning : In the sense that, at the time, Australia did not think it could necessarily guarantee that, because its size meant that there were benefits in detaining children close to their families which could not be guaranteed in all circumstances—which meant that guarantees about not detaining children with adults, for example, could not be guaranteed.

Senator WRIGHT: If it is helpful, perhaps you could take that on notice and give a bit more specificity about the obligations in relation to children as opposed to the general obligations about detention.

Mr Wilkins : We might be able to refer you to some articles that deal with this.

Mr Manning : Certainly we can take it on notice and cite relevant articles on the Convention on the Rights of the Child, for example, and give some more details about Australia's reservations and declarations.

Senator WRIGHT: Thank you, I would appreciate that. Perhaps you can also look at this when you are answering that question: I am interested in whether any of these obligations specifically address the issue of detaining people under the age of 18 in adult facilities.

Mr Manning : Certainly. I presume that is directed towards the issue I was speaking of earlier about children and adults being detained separately—the issue about which Australia has a reservation.

Senator WRIGHT: What research is the department aware of that examines the impact of detaining youths in adult facilities? Does any of that research focus on Indigenous Australian youth? Again, it is a broad question that you may want to take on notice.

Mr Wilkins : I think we will need to take that on notice. Other areas of the department that look at Indigenous programs may well have some information about that, but we will take that on notice.

Senator WRIGHT: I would also like to know if the department has guidelines on best practice for detaining juveniles in Australia?

Mr Manning : No, we do not.

Senator WRIGHT: My last lot of questions should not take too long. They concern the National Partnership Agreement on Legal Assistance Services and the review of that. Clause 40 of the National Partnership Agreement on Legal Assistance Services states that it must be reviewed by 30 June this year with regard to the parties' progress in achieving the agreed outcomes, objectives and outputs. When will the review be completed?

Mr Wilkins : I might get Mr Fredericks to begin to answer your questions, Senator, and then we may need to get more detailed responses.

Senator WRIGHT: The question is: when will the review be completed? My understanding is that it is to be reviewed by 30 June 2013.

Mr Fredericks : The review is well on track. I think it is fair to say that the prospect of meeting that particular timeline may not be necessarily be fulfilled. Our best estimation is that the report will likely be finalised sometime in August. The reason for that, Senator, is essentially that there was a considerable complexity around data collection which was required as the basis for the review—in particular in collecting data from the large number of CLCs as well as from the state Legal Aid Commissions. That data collection exercise took—Ms Todd will correct me if I am wrong—somewhere between one and two months longer than had been originally planned. Will it be completed by that date you raised? It is unlikely, but we are still working towards that. It is more likely to be a month thereafter.

Senator WRIGHT: Will there be a report summarising the review?

Mr Fredericks : There will be ultimately. The product will be a detailed report. One decision which government is still to make is: whether there will be a draft report issued and consultations to be done in reference to that draft report or alternatively whether some consultation will be done before the release of a final report.

That decision is still to be made by government.

Senator WRIGHT: What steps should occur between the report's completion and its public release?

Mr Fredericks : That is what I have alluded to. That is the decision that is still to be made. One possibility is completion of a draft report, making that draft report public, conducting public consultations on the basis of it or some targeted consultations before finalising the report. Alternatively, government may choose to do those consultations before publication of the final report.

Senator WRIGHT: I guess it is pretty well impossible to say when the final report would ultimately be published?

Mr Fredericks : As I say, Senator, it is unlikely that the final report be published before the timeline that you highlighted.

Senator WRIGHT: It certainly sounds unlikely that it will be before 30 June.

Mr Fredericks : Correct—unlikely. But what we are working towards is finalisation of that report within a month or so thereafter.

Senator WRIGHT: Just to make sure I am right: it sounds as though the review will be complete around August and then there would be some time before the report itself would be released either as a draft for consultation or as a final report.

Mr Fredericks : I think I can be more definitive than that. Our aim is to have the final report completed essentially within August.

Senator WRIGHT: Within August.

Mr Fredericks : Correct.

Senator WRIGHT: If there were to be consultation it would be fairly quick.

Mr Fredericks : Exactly correct, Senator.

Senator WRIGHT: Will the election and caretaker period affect any of that work?

Mr Fredericks : We are planning on the basis of the work—the consultation—that we need to do. If the report is completed and made public in August, then those issues will not come into play.

Senator WRIGHT: Can you say how the review will influence the next iteration of the national partnership agreement?

Mr Fredericks : I do not think I can say anything more than it will be an extraordinarily important input to that next NPA. In fact that is essentially why the review was built into the NPA in the first instance. Obviously, there will be other material and other considerations, but it will be a crucial input into the next iteration of the NPA agreement.

Senator FAULKNER: I have questions in two areas. I do not believe they will take a long time. I certainly hope not. One area is in relation to the National Anti-Corruption Plan; the second is in relation to the Open Government Partnership. What I am keen to do, Mr Wilkins, is to have a brief status report on where your agency is up to in relation to the first area.

Mr Wilkins : We completed work at a departmental level on this plan. It is something that the Attorney is wanting to discuss with his colleagues and then get agreement. I would describe it as being something which is probably going to be considered by the government, probably in the guise of Cabinet, shortly. That is my understanding.

Senator FAULKNER: It is good to hear that the department has completed its work on the plan. So that we get a feel for the timeframe, is it correct to say that the work has been completed relatively recently?

Mr Wilkins : Working with the other agencies and getting all the input and doing discussions and getting compromises have been completed recently. Yes, at an officials' level, we think we have done mostly what we needed to do.

Senator FAULKNER: I suppose there is a difference between having completed it and having done mostly what we want to do. Just for clarity's sake—

Mr Wilkins : We are happy with it.

Senator FAULKNER: I am not going to ask you about the details of it but has the matter been effectively progressed to the ministerial level by departmental brief?

Mr Wilkins : Yes.

Senator FAULKNER: Thank you for that; that is helpful. When you talk about working with other agencies, could someone quickly outline how that process works so we get an understanding of it? I realise that other agencies are involved in this.

Mr Wilkins : It is the normal sort of thing you would be aware of. When you have something like an anticorruption plan which impacts on so many different agencies, there are lots of people effected so we try and sort those issues out before it goes to a minister so we have discussed it with lots of different agencies. We think we have understood people's problems, and they have all been sorted out in the plan itself.

Senator FAULKNER: But how formal was that process? Did you go to the extent of having an IDC, for example, or is it perhaps a less formal process?

Mr Wilkins : I think we had an IDC of a narrow sort then we went more broadly for consultation. I think it was reasonable consultation.

Senator FAULKNER: I see. So this has gone to the Attorney in a departmental ministerial brief. You may or may not know this but, just so we get a feel for the timing of it, would you be able to say to us what the timing of the brief is going forward? I accept that it is recent, but you may not know that.

Mr Wilkins : In the last couple of weeks.

Senator FAULKNER: You might be able to take that on notice and give me a precise time. I am just trying to understand the broad parameters. I accept what you say about it now being a matter for ministers. Are you able to say whether you expect that this will be subject to a cabinet process? I am only asking this because of course, if it is, it may in fact take longer to come out the other end of the sausage machine.

Mr Wilkins : I do not know but I am not anticipating that it should take a lot of time. As you know, it was initiated some time ago and various ministers have been involved in it already so it is not a surprise. I would anticipate that it would be dealt with relatively quickly.

Senator FAULKNER: This may not be possible for you but are you able to be a little more precise about your expectations in terms of when this matter would be—I appreciate this is not directly a matter for you as an official now that it is in the hands of minister and I accept the spirit with which the advice you have provided in relation to the fact that it is moving along at a good pace, but are you able to be more specific in terms of what that expectation would be? If you are not, fair enough; but if you are, I would appreciate hearing it.

Mr Wilkins : I really do not think I can go much further than that, Senator.

Senator FAULKNER: Fair enough. Are you able to say without divulging the nature and content of your advice to the Attorney what the broad areas in relation to content of the plan are, or is that something that the department at this stage would prefer to consider as strictly falling within perhaps a definition of advice to ministers? There is a pretty wide understanding of the broad areas which the anticorruption plan is expected to cover, and I am interested to know whether you are able to provide those broad areas specifically.

Mr Wilkins : I can indicate that it is a fairly broad plan. It deals with questions about prevention; questions about education and institutional arrangements; actual prosecutions and investigations; and types of reporting arrangements that might be required. It deals with all of that, but I am not sure that that takes us very far. It is a bit anodyne to say, but it is actually quite a wide-ranging piece of work in that sense. I do not feel that I can go any further into the detail.

Senator FAULKNER: I appreciate the difficulty we have when the department, as you say, has finished its work and the matter is now with the minister. Is there an understanding or expectation or any knowledge you can share with the committee in relation to whether there is going to be any further public involvement or engagement or consultation process, appreciating what has gone on previously? Is there any expectation that any more consultative process is likely to occur? I am not talking about within government; I am talking about beyond government, if you like.

Mr Wilkins : I cannot really recall, to tell you the truth, the various actions involved. In some cases there will be a need to do that. For example—and this is probably no secret—it picks up things like protective security, and that impacts on the private sector as well. It picks up things which will inevitably need to draw the private sector or the public more generally in. I cannot really recall. I do not think we have suggested that, because there have been so many iterations and discussions, the whole thing go out for further comment and stuff before it is signed off as a plan to be implemented by government. The plan is so wide-ranging in a sense that there will be components of it that will require further consultation with members of the public and the private sector.

Senator FAULKNER: Are there any critical time events for the remainder of calendar year 2013, or beyond, for that matter, I suppose—but obviously in the comparatively near future—that the department has in the back of its mind that perhaps need to be met?

Mr Wilkins : The UNCAC review has been completed. That is the one I was thinking about. There are no other particular timing issues. Obviously there is an election coming up soon, but apart from that—

Senator FAULKNER: You mention the election. Obviously, once the caretaker period starts, with a matter that you have informed us is now before the Attorney, if decisions have not been made by that period, a decision would not be expected until the conclusion of the caretaker period. I appreciate that. I am aware of when that starts. My question really went to other than the caretaker period, because I do appreciate that.

Mr Wilkins : I do not think there are any particular constraints. Obviously it would be better to settle this and roll it out as soon as possible, in my view, but other people may have different views. It is equally important that people within the public sector and maybe in the community more generally feel that this is fine, that they have property in this and that it is actually going in the right direction. You do not want to be silly about racing it out there too quickly.

Senator FAULKNER: Thank you for that. Minister, is it the case that the national anticorruption plan remains a priority for government, taking into account the factors that we have heard from officials, in terms of timing and information of where this now sits?

Senator Ludwig: We could simply say: yes, it remains a priority for government.

Senator FAULKNER: I am pleased to hear that, Minister. Speaking about other things that I think are important priorities, I was very pleased to see the Attorney's announcement in relation to the open government partnership, which is something that I had canvassed at a previous estimates committee. I will make a mildly critical statement, Mr Wilkins, and point out that I learnt more about the IDC chaired by the Attorney-General's Department when I canvassed this issue at the estimates for the Department of Foreign Affairs and Trade than I did at the Attorney-General's Department. I made a brief contribution in the parliament on this matter, which I commend to you. I do not want to—

Mr Wilkins : I am not sure whether that is a good thing or a bad thing!

Senator FAULKNER: I do not think it could be defined as a good thing. Whether one is to find it a bad thing is, I suppose, in the eye of the beholder. I found it perplexing, I would have to say, that I learnt a lot more about your IDC at the foreign affairs department than I learnt from your own department at the table. However, that is a mild criticism, and I commend my comments on this to you.

Mr Wilkins : I will read them closely, Minister.

Senator FAULKNER: 'Minister', did you say? I thought you had promoted me there for a moment. I was pleased to hear that! I do not want to get bogged down in that, because, as I said, I was pleased to hear the announcement. I say as background to you, Mr Wilkins, that I briefly canvassed this issue at the estimates for the Department of the Prime Minister and Cabinet just to establish who the lead agency was and who the lead minister was. The Prime Minister, it was reported, had written to the Attorney to indicate the Attorney is the lead minister and AGD is the lead agency. Having established that, could you or one of your officials give us a brief report, given the announcement that has been made by the government, on next steps and departmental resources? I would appreciate that, if you could.

Mr Fredericks : I will start. We are conscious that the action plan is due to be presented to the OGP secretariat by the end of March 2014. That is the timeline that we are working to. You will appreciate that the formal decisions made by the PM have only come recently, as you very kindly pointed out. Our intention will be to set up a—

Senator FAULKNER: I was not actually sure of the date. I did not progress that, but I gathered it was a comparatively recent thing.

Mr Fredericks : That is right—very recently.

Senator FAULKNER: Are you able to say when, just to the record?

Mr Fredericks : The Attorney announced the decision on 22 May. I think the decision was made internally on 15 May. Senator, you will appreciate that that is only very recently. Our intention is to, as quickly as possible, arrange a meeting with relevant agencies to start preparation of the plan. That is the plan at this stage.

Senator FAULKNER: I would have to describe that as comparatively vague, Mr Fredericks. I am being as generous as I can be. I appreciate that it is early days. I ask specifically: Mr Wilkins or Mr Fredericks—it is a good announcement, I think, that the Attorney has made; it is an important initiative and I am personally very positive about it, and I am sure many others will be—are you able to say whether there has been any internal consideration yet about the sorts of resources, given you are the lead agency, that are going to be put behind this new responsibility that the AGD has?

Mr Wilkins : The short answer is no, I have not heard about that. I have just had this greatness thrust upon me and I have not had a chance to think about that really. In fact, I am getting various papers and briefing materials together to try to understand the scope and the possible scope of this. So it is actually too early for me to answer that question.

Senator FAULKNER: Have you been able to give consideration to what area of the department is going to have responsibility for the OGP?

Mr Wilkins : These guys here obviously think this is the civil law area and people who deal with open—

Senator FAULKNER: But you would always say it is not a matter of what they think; it is a matter of what you think.

Mr Wilkins : And that is exactly what I was going to say. They have come to the table; they obviously think they are going to be doing it, but I am not entirely sure that that is correct. I think some of the issues—which are also in Mr Minogue's area—around copyright and intellectual property are quite significant in relation to all of this as well in terms of public domain and property rights. So I am not sure that I want to race to a conclusion about where it should be located. It obviously has affinities with a number of different things we do in the department. I am not going to predict that at the moment, because if I say something now I am sort of locked in.

Senator FAULKNER: I appreciate that it is early days; it would be unreasonable not to accept that that is the case. If there has been no decision or consideration given yet to either resources or administrative arrangements, that may well be fair enough in these circumstances. I suppose for those who have got an interest in this—and I am certainly one of those—what I would want to hear is that it will be treated seriously and will be adequately resourced and given appropriate priority, given that this is something we need to move along. That is what I suppose I would like to hear from you, given what has been said about the fact that this is obviously a recent decision, which I accept.

Mr Wilkins : You do have my assurance, Senator, that I do accept all of those propositions that you put. I do think it is a significant thing. The government obviously thinks it is. I am a professional public servant making sure that the will of the government of the day will actually be enforced. But personally I think it is quite a significant piece of work that is required. It will be adequately resourced.

Senator FAULKNER: So can you say that the planning for determining issues like administrative arrangements within the department and appropriate resources and the like is now underway?

Mr Wilkins : Yes.

Senator FAULKNER: At the end of the day these will largely be matters that will fall to you as the agency head. Are you able to share with us what you would say the broad parameters or understandings might be when this is nailed down at an agency level?

Mr Wilkins : No, not at this point. Obviously we are doing post budget or budget considerations now, so we will be doing considerations in that context. I would imagine in the next couple of months we would need to come to a landing on a number of issues in terms of resourcing and the allocation of resources to functions.

Senator FAULKNER: So you do not have a feel at the moment for what sort of staff resources, for example, might be required?

Mr Wilkins : No, I do not, actually, Senator.

Senator FAULKNER: Do you or any of your other officials—

Mr Wilkins : They might have some ideas, but what matters—

Senator FAULKNER: I was going to half let you off the hook. I was going to ask whether you or any of your would-be responsible officials in this area are able to share with us what the significant time events might be which I asked you about in relation to the National Anti-Corruption Plan in relation to the OGP? In other words, what deadlines do we have to meet? Is someone able to share that with me?

Mr Fredericks : As I said earlier in my evidence, we are conscious that the due date for presentation is March 2014 and we will plan towards that. But I cannot give you any—

Senator FAULKNER: But are there any key dates before then in the department's mind?

Mr Fredericks : Not at this stage, no. I could not give you evidence to that effect, Senator.

Senator FAULKNER: Has it been determined yet who is—

Mr Wilkins : Senator, we only found out about this on 15 May.

Senator FAULKNER: Yes—

Mr Wilkins : Hold on. We only found out about this on 15 May. I am still—

Senator FAULKNER: Don't worry—I am holding on. I have been holding on about this for ages, I can assure you. I am so patient on this issue, you have no idea.

Mr Wilkins : Okay, but I found out on 15 May that I have responsibility for this. I will give it all my due regard, which it deserves, and I will resource it properly, but I am not going to answer questions now which are going to lock me into a position. I have to deal with my budget in the context of my overall responsibilities. This is very important. It will get all the attention it deserves, actually. So that is really the answer. I cannot take you any further than that at this point.

Senator FAULKNER: Sure. I actually accept that, Mr Wilkins. And I certainly accept the spirit with which you have given that commitment. I have got no problem about that. The issue I was going to raise with you was whether you might give some consideration to having at least some form of agency contact point with the OGP itself in these preliminary stages. In other words, having now been given the formal responsibility, if things are happening at an international level and if departmental processes are not necessarily linked in or locked in in some way, we might miss the boat in a couple of areas. I was going to ask you whether that is worthy of some consideration in this intermediate or preliminary stage, if you like.

Mr Wilkins : That makes some sense, Senator. We could take that on board.

Senator FAULKNER: Anyway, I thank you for your commitment, Mr Wilkins, and I do hope that, in relation to the gentleman at the table who was so keen to come forward and answer questions, you consider giving them the responsibility, because they are keen.

Mr Wilkins : They got here first; that is true.

Senator FAULKNER: They may not want it, of course.

CHAIR: We will go to Senator Brandis for questions.

Senator BRANDIS: I will start by asking about the matter of Baker and the Commonwealth, the Federal Court proceedings involving certain judges of the former Federal Magistrates Court, now the Federal Circuit Court. Who knows about that? Mr Fredericks, can you help me with that?

Mr Fredericks : Yes, I will be joined by a couple of officers.

Senator BRANDIS: Can you tell me, please, what is the quantum of the party-party costs that the Commonwealth has incurred so far in the course of this litigation?

Mr Fredericks : The difficulty we have in answering that question is that I think we need to seek some advice on whether the answer to that question is confidential to both parties.

Senator BRANDIS: I am only asking about the Commonwealth's costs. Surely the legal expenditure, or the expenditure by the Commonwealth on legal services, is not confidential, in fact it is something that is published. I am not going to ask about the adverse party's costs, the applicant's costs. I am only interested in the Commonwealth's costs.

Mr Fredericks : I appreciate the distinction you are making. I think the difficulty there is that, because of the nature of a cost order that has been made in those proceedings, the Commonwealth's costs, if you like, are of course inherently relevant to the costs that might ultimately be imposed on the other party. So, in a sense, that greater number is potentially confidential to the parties. That is the difficulty we are having here.

Senator BRANDIS: The Australian Government Solicitor is acting for the Commonwealth in this matter on your instructions, is it not?

Mr Fredericks : It is, Senator, correct.

Senator BRANDIS: Mr Nigel Oram from the Australian Government Solicitor, is that right?

Mr Fredericks : I am told that is correct.

Senator BRANDIS: He is handling the matter. Are you aware, Mr Fredericks, that recently the Australian Government Solicitor on behalf of you, the client, wrote to the solicitors acting for the remaining applicants in the proceedings and assessed the Commonwealth's costs to date in the litigation on a party-party basis at $1,114,000. Are you aware of that?

Mr Fredericks : Senator, as I say, the difficulty we are having here is that I am not sure that I can confirm that because that is inherently a matter which, as I understand it, is in, if you like, negotiation between the parties one of which is the Commonwealth but the other of which are litigants who have rights of their own.

Senator BRANDIS: That is true, Mr Fredericks, except that that is not what I am asking you. I have seen the letter. The Commonwealth is claiming that as of the date the letter was written earlier this month—

Mr Wilkins : Sorry, what letter is that?

Senator BRANDIS: A letter from the Australian Government Solicitor.

Mr Wilkins : I have not seen it, but these guys obviously have. Sorry, Senator.

Senator BRANDIS: assessing the Commonwealth's party-party costs in the matter as of that date at $1,114,000. You do not dispute that, do you Mr Fredericks?

Mr Fredericks : I do not dispute the fact that you have seen a letter that says that. The difficulty I am having is that, in a sense, for me to answer that question is confirming a matter of which I am unsure whether it is confidential between two parties to a costing dispute.

Senator BRANDIS: Well, it is not a cost dispute. At the moment, at least, it is not a cost dispute. There is litigation still on foot, which may or may not be resolved, and the costs may or may not be settled, but we are not at that point yet. We are merely at a point at which the Commonwealth has said to the applicants that its party-party costs are $1,114,000, and the Commonwealth would not have said that unless it wished to assert it to be true. That is why it was said. What I want to put to you, Mr Fredericks, is that for litigation of this character that is an extraordinary amount of money.

Mr Fredericks : I cannot comment on that opinion that you have expressed. That is an opinion that you have expressed but I as an official cannot express an opinion on that matter.

Senator BRANDIS: Perhaps I will direct some questions to the Australian Government Solicitor as well but I very much apprehend they will say they are bound by confidentiality to the client, namely you. You are not bound by any obligation of confidentiality that constrains you from responding to my question. I am not asking you to reveal the terms of confidential negotiations; I am not asking you to reveal confidential settlement terms—I am merely asking you to comment on an assessment of your own costs in this matter to date.

Mr Fredericks : My response is to say that I do not feel I am qualified to give the opinion that you are seeking of me about the quantum of those costs.

Senator BRANDIS: Do you know whether and by what means the Commonwealth's costs to date have been assessed?

Mr Fredericks : The usual way in which Commonwealth costs would be assessed in a matter like this would be for a professional costs consultant to be engaged.

Senator BRANDIS: Has there been a costs assessor engaged?

Mr Fredericks : Yes, there has.

Senator BRANDIS: Who is that?

Dr Smrdel : The cost consultant firm Legalcost provided the cost assessment.

Senator BRANDIS: Is that a Canberra-based firm?

Dr Smrdel : I would have to follow that up.

Senator BRANDIS: When was the most up-to-date assessment by that firm provided to you?

Mr Wilkins : We are in dispute on this legal costs thing. I am wondering where this is heading—

Senator BRANDIS: I am not sure you are in dispute on the quantum of the costs.

Mr Wilkins : There is potential litigation here—

Senator BRANDIS: There is actual litigation.

Mr Wilkins : All right, there is actual litigation, but there is certainly a potential dispute between the Commonwealth and other parties. I am happy to try and answer the questions but I am a little bit reluctant about where it is heading in terms of maybe compromising the Commonwealth's position.

Senator BRANDIS: I do not want to do that and I will not be asking any questions that in my judgement would do that, but I would like to be a little more fully informed about the costs the Commonwealth is incurring on behalf of the taxpayer in defending this claim. The figure I have seen, which I believe to be true, seems to me for litigation of this scale and scope to be an extraordinarily, preposterously, high number. I am therefore interested in pursuing the question of the extent of legal resources devoted to the defence of the claim.

Mr Wilkins : I do not think any of the people at this table are experts at gauging what reasonable costs are, particularly in litigation of this size. We have relied on the usual process of assessment. Is it helpful just to tell you that that is the process or do you want to go further?

Senator BRANDIS: Why do you not just follow my questions, Mr Wilkins. Dr Smrdel, I had asked you when the most recent assessment of the costs to date had been made. Have you found that yet?

Dr Smrdel : The report from the legal costs was dated 30 April this year.

Senator BRANDIS: All right. The Australian Government Solicitor is your solicitor and of course reports to you in your capacity as the client as to the progression of the litigation.

Dr Smrdel : That is correct.

Senator BRANDIS: In the course of reporting to you on the progression of the litigation, does it report to you on matters such as the extent of resources—in other words, effectively the number of lawyers who have been involved in dealing with education?

Dr Smrdel : Yes, that is correct.

Senator BRANDIS: How many lawyers either full-time or part-time have been involved in the defence of this litigation?

Mr Wilkins : We do not have that information. We will have to take it on notice.

Dr Smrdel : Are you able to tell me approximately how many?

Mr Wilkins : Approximately.

Senator BRANDIS: Just to give a bit of context to this, we learned last year that in a very quotidian claim between Ashby v Slipper there were 21 Commonwealth lawyers involved full-time or part-time. The case had an obvious political sensitivity. This case does not have the political sensitivity but it seems to me there is an extraordinary expenditure of legal resources for a case of this kind. I am interested to know how many lawyers the AGS on your behalf has used in the case.

Dr Smrdel : This was quite a lengthy case as well and it involved two separate areas of the Australian Government Solicitor. It involved the litigation area and also the Constitutional law unit. It has been a while since the matter was settled last August, but it would have been around two or three lawyers from each of those areas regularly involved from AGS in the matter.

Senator BRANDIS: At what rank of seniority? Senior solicitors? Principal solicitors?

Dr Smrdel : There would have been two from each area, a junior lawyer and one or two at the SES level.

Senator BRANDIS: At any given time throughout the course of the litigation?

Dr Smrdel : That is correct.

Senator BRANDIS: Counsel were of course retained. How many counsels were retained?

Dr Smrdel : There was a senior counsel, and a junior counsel retained as well.

Senator BRANDIS: Just one junior counsel and one senior counsel?

Dr Smrdel : One junior, one senior.

Senator BRANDIS: Thank you. Mr Wilkins, can I return to the question that I raised on the courts—that is, the issue of appointments. I foreshadowed to you the questions that interested me about the process which had been engaged in in relation to the advertisement and appointment of the three new Federal Court judges. Are you in a position now to give me the information?

Mr Wilkins : I might get Mr Fredericks. We have looked at this and we are ready to talk to you about it.

Mr Fredericks : I will take each registry in turn. In relation to the Melbourne registry, as you recall the evidence of Mr Soden, there was a known vacancy in the Melbourne registry caused by the potential resignation of Justice Gray. In relation to the Melbourne registry vacancies, the EOI was advertised on 18 January 2013.

Senator BRANDIS: If I could pause you there. I am really only interested in the new position that was announced in the budget.

Mr Fredericks : Yes, I can explain that. In this case there was an existing vacancy caused by Justice Gray, so a process had already commenced in relation to filling that vacancy, and that was the one for which the EOI was opened on 18 January. It closed on 11 February 2013. You asked further questions about when the internal process was done. Essentially that internal process, the panel process, if you like, was completed on 10 May. In relation to Melbourne, what the Attorney-General decided was, given that there was already a process in train getting close to finality for him to receive advice in relation to the Melbourne vacancy, that he should simply utilise that same process in order to fulfil the new Melbourne vacancy caused by the budget. The same logic applies in relation to the Sydney vacancy—

Senator BRANDIS: I am sorry but before we move off the Melbourne vacancy, Mr Fredricks: the panel process was completed on 10 May—that was a week before the budget.

Mr Fredericks : Four days before the budget.

Senator BRANDIS: So the Friday before the budget.

Mr Fredericks : Correct.

Senator BRANDIS: When you say the panel process was completed, does that mean that a shortlist had been identified for recommendation to the Attorney by 10 May?

Mr Fredericks : Correct. A shortlist of names to be put before the Attorney-General, including the panel's opinion about their suitability for the position.

Senator BRANDIS: How many names on that list?

Mr Fredericks : I do not have that information here.

Senator BRANDIS: Do you know, Mr Wilkins?

Mr Wilkins : I have not seen these processes actually.

Senator BRANDIS: What is the custom, Mr Fredricks, as to the number of names on a shortlist to be submitted to the Attorney?

Mr Fredericks : It is ultimately a judgement by the panel and, roughly speaking, my recollection of this Melbourne process was that there would have been probably somewhere between six to eight, maybe 10, names presented to the Attorney-General—

Senator BRANDIS: Between six and 10.

Mr Fredericks : I think that is right.

Senator BRANDIS: Those were names from how many applicants in total for the Melbourne vacancy?

Mr Fredericks : I really would have to take that one on notice.

Senator BRANDIS: You take that on notice, please. When you say the panel process was completed by Friday 10 May, does that mean that on that date the shortlist was sent to the Attorney-General?

Mr Fredericks : No, I think on that date the panel report was finalised so that would be, roughly, speaking, all panel members approving the final draft of the report and signing it.

Senator BRANDIS: So the report was signed off on or before 10 May.

Mr Fredericks : Or thereabouts, yes.

Senator BRANDIS: When was it forwarded to the Attorney?

Mr Fredericks : It would have been very shortly thereafter.

Senator BRANDIS: Was it on this particular occasion affected by the fact that the announcement in the budget occurred two business days later?

Mr Fredericks : Affected to this extent—and my recollection is that by the time the panel report was sent to the Attorney-General, it was well known that there was now going to be an additional vacancy caused by the creation of a new position in the Melbourne registry.

Senator BRANDIS: Although this announcement was formalised in the budget, was the fact that there was going to be a new Melbourne judge known to the panel in advance of signing off on the report?

Mr Fredericks : Yes.

Senator BRANDIS: By about when?

Mr Fredericks : I should say that with one cautionary note: of course until budget night is announced—until the announcement is made, there was always a chance that—

Senator BRANDIS: Of course.

Mr Fredericks : But generally it was known that that was a vacancy that was going through the process with a very strong likelihood that it would be announced.

Senator BRANDIS: From about when was that known? Was it known when the expressions of interest were advertised for?

Mr Fredericks : I do not think so, no. I can say it must have been at some point in time whilst the panel was still in a sense considering its report, so we know that it must have been before the 10th of May.

Senator BRANDIS: Was there only ever one report finalised with the one list of names on it?

Mr Fredericks : From Melbourne?

Senator BRANDIS: Yes.

Mr Fredericks : Yes.

Senator BRANDIS: Where is the process at now?

Mr Fredericks : The Attorney-General and ultimately the cabinet has the panel report and is considering its position.

Senator BRANDIS: Do we have an expectation as to when that decision will be made?

Mr Fredericks : I cannot answer that. That is ultimately a matter for government.

Senator BRANDIS: Did the new Attorney-General, Mr Dreyfus, have any involvement in the ultimate preparation of the list?

Mr Fredericks : Of the final list?

Senator BRANDIS: Yes. None at all?

Mr Fredericks : No.

Senator BRANDIS: Did he have any discussions with any members of the panel relevant to the settling of the final list?

Mr Fredericks : I cannot answer on behalf of the other panel members.

Senator BRANDIS: How many panel members were there?

Mr Fredericks : Three.

Senator BRANDIS: Who were they?

Mr Fredericks : Myself; former Justice of the Federal Court, Margaret Stone; and Catherine Gale.

Senator BRANDIS: Who is she?

Mr Fredericks : Catherine Gale is the former President of the Law Council.

Senator BRANDIS: The Law Council of Victoria?

Mr Fredericks : The Law Council of Australia.

Senator BRANDIS: So you can assure me that there was no intervention by Mr Dreyfus in the settling of the list?

Mr Fredericks : I can say on my own behalf, and I am sure Justice Stone would say the same thing, and I am sure Catherine Gale would say the same thing. The three panel members formed our own views and formed our own advice to the Attorney.

Senator BRANDIS: No, that is not responsive to the question I asked you. I want to know whether you can assure me that Mr Dreyfus had no involvement in discussing this list with any of the panel members.

Mr Fredericks : As I said, I cannot answer that question in relation to the other panel—

Senator BRANDIS: But you can in relation to yourself.

Mr Fredericks : In relation to myself. At the end of the day, I made my own judgments, with the other two panel members, about my advice and I signed on it.

Senator BRANDIS: Sure. I am not suggesting you did not, Mr Fredericks. You say that you could only speak for yourself, which is fair enough. Is it the case that Mr Dreyfus did not have any discussion with you about the names on the list?

Mr Fredericks : I certainly do not recall having any conversation with him about the advice that I gave.

Senator BRANDIS: Let's talk about the names on the list. I think that is a reasonably understandable phrase. Mr Dreyfus had no conversation with you about the names on the list?

Mr Fredericks : I think it would be fair to say that at some point in time I made sure that the Attorney-General's office knew the names that were on the long list and at some point in time knew the names that were on the short list and were to be interviewed.

Senator BRANDIS: Is that the usual practice, to advise the Attorney's office of both the long list and the short list?

Mr Fredericks : It is certainly a practice that the panel was very comfortable with.

Mr Wilkins : I think it has been since this new system has been introduced. It is not an invitation for people to interfere, but it is just keeping in the loop.

Senator BRANDIS: At that time you provided the long list and the short list to Mr Dreyfus's office, had the final report been signed off on?

Mr Fredericks : No, Senator.

Senator BRANDIS: Was there any difference between the names on the short list that you provided to Mr Dreyfus's office and the names in the report that was signed off on on 10 May?

Mr Fredericks : I think the answer is no, because essentially what we did as a panel is agree that we would advise the Attorney-General's office of the short list—that is, the list of names with whom we were going to have an interview or a discussion. We thought that was a correct courtesy to explain to the Attorney-General that this was the list of names we would be interviewing or having a discussion with, and after that of course the panel formed its own opinion about the suitability of those people.

Senator BRANDIS: But the same names that were on the short list were the names in the report?

Mr Fredericks : Absolutely correct—the difference being, of course, that by the time we had finalised the report, there was a judgment by the panel as to the suitability of each of those people for employment.

Senator BRANDIS: Mr Dreyfus or his office did not, after they received the short list, to your knowledge, express any view among the candidates on the short list?

Mr Fredericks : Not to my knowledge.

Senator BRANDIS: Had Mr Dreyfus or his office had a communication with Justice Stone or Ms Gale, would it have been your expectation that they would have reported that to the panel in the discussions you had?

Mr Fredericks : I just do not think it arose.

Senator BRANDIS: But, in any event, neither Justice Stone nor Ms Gale told the panel of any discussions they had had with Mr Dreyfus or any member of his staff?

Mr Fredericks : Not that I recall.

Senator BRANDIS: Isn't that the sort of thing you would recall? Would it not have been irregular, according to the system established by Mr McClelland, for there to have been an intervention by the Attorney-General at that stage?

Mr Fredericks : The panel certainly took the view that we were fully charged with the duty of advising the Attorney-General, and we jealously guarded that role.

Senator BRANDIS: So the Attorney was not consulted at any time?

Mr Fredericks : I think I have explained that the Attorney was certainly advised at various points in time of the names of—

Senator BRANDIS: But his views were not solicited?

Mr Fredericks : Not by the panel, no.

Senator BRANDIS: When you say 'not by the panel'—

Mr Fredericks : I always think in terms of 'the panel' because I was doing this job as a member of the panel, along with Justice Stone and Cathy Gale.

Senator BRANDIS: So, to the best of your knowledge, his views were not solicited by the panel?

Mr Fredericks : Correct.

Senator BRANDIS: And his views were not offered to the panel?

Mr Fredericks : Correct.

Senator BRANDIS: Nor to any member of that, so far as you are aware?

Mr Fredericks : Correct.

Senator BRANDIS: Either directly or through a member of his staff?

Mr Fredericks : Yes, I think that is correct.

Senator BRANDIS: When was the short list prepared? By when was the short list assembled?

Mr Fredericks : I think we had our first short list discussion in early April 2013.

Senator BRANDIS: When was the short list finalised?

Mr Fredericks : It would have been early April 2013.

Senator BRANDIS: When was it sent to the Attorney's office?

Mr Fredericks : The best I can advise on that is that I would have advised the office of the names that were to be interviewed pretty shortly after the panel had decided that.

Senator BRANDIS: Was there only ever one iteration of the short list?

Mr Fredericks : The panel made one decision about the names of the people who were going to be interviewed.

Senator BRANDIS: Because there are now, in view of the budget announcement, two positions to be filled in the Melbourne registry, is the expectation that both of those names will come from your short list?

Mr Fredericks : The panel's report.

Senator BRANDIS: But the panel's report and the short list—

Mr Fredericks : Are one and the same.

Senator BRANDIS: They are not one and the same because the report contains comments and presumably the short list is just a list.

Mr Fredericks : Correct, as I pointed out before.

Senator BRANDIS: But the names are one and the same?

Mr Fredericks : Correct.

Senator BRANDIS: Tell me about the process for Sydney, please.

Mr Fredericks : In Sydney also there was an existing vacancy or a vacancy that was known. That was Justice Emmett's. The expression of interest was advertised for that vacancy on 3 May this year. That advertisement closed on 20 May this year.

Senator BRANDIS: That was nine days ago. Has the panel been recruited or assembled yet?

Mr Fredericks : The panel has been recruited. It is the same panel.

Senator BRANDIS: The same three people?

Mr Fredericks : Correct. But it has not met or discussed this issue yet.

Senator BRANDIS: Given that in Melbourne the period that elapsed between the closure of the expression of interest on 11 February and the signing off on the report to the Attorney on 10 May was three months, might we expect that if the Sydney appointments are to proceed with regularity that approximately three months will elapse between the closure of the expression of interest on 20 May and the settlement of the report?

Mr Fredericks : No.

Senator BRANDIS: Why not?

Mr Fredericks : There are some extenuating circumstances.

Senator BRANDIS: What are they?

Mr Fredericks : The principal one was that the Attorney-General himself, Minister Dreyfus, was appointed on 4 February. He was appointed at a point in time when the EOI was still open. The other extenuating circumstance was that Justice Allsop was appointed to the Federal Court in early March.

Senator BRANDIS: The closure date for the expression of interest was advertised in the expression of interest, so why in the intervening period when we had the unusual event of a new Attorney-General being appointed would that have made any difference to the period of time for consideration of the short list?

Mr Fredericks : Because the Attorney wanted both in his own right but also in discussions with Justice Allsop to settle on whether he would agree for the existing process to continue.

Senator BRANDIS: Was that ever in dispute?

Mr Wilkins : Yes. We did discuss whether or not the procedure that Mr Fredericks has just taken you through was an appropriate one.

Senator BRANDIS: How long did that take?

Mr Wilkins : It took several weeks, actually, because it was also a question of allowing the Attorney to discuss the process with the chief of the Federal Court. We thought it was fair that he also be allowed to discuss it because Chief Justice Keane had had views on the process as well. I insisted that it should be put to the new Attorney-General and that he should discuss it with the new—

Senator BRANDIS: It could have been put to the new Attorney-General before the closure of the EOI because his appointment predated the closure of the EOI.

Mr Wilkins : I was not conscious of what EOIs there were. I was just concerned to make sure that the process was one that the new Attorney-General was happy with and that he had discussed with the new chief justice.

Senator BRANDIS: When is it expected that the panel will report in the Sydney case?

Mr Fredericks : The answer to that question is as soon as we reasonably can.

Senator BRANDIS: Why? What is the hurry? After all, as we heard in evidence from Mr Soden this afternoon, the additional position in Sydney was not a position that the court itself had asked to be created. So what is the hurry?

Mr Wilkins : I am not sure there is a hurry.

Senator BRANDIS: Mr Fredericks said it would be as soon as reasonably practicable.

Mr Wilkins : Yes, as soon as reasonably practical. These are professional public servants at work. They are just going to provide a report in due course to the Attorney-General. It is a matter for the Attorney-General. The issue of appointments is governed by protocols, customs, conventions and the law. We are not interfering in that. We will just do our job.

Senator BRANDIS: Mr Fredericks, applying your test of 'as soon as reasonably practicable', when would you expect a report to the Attorney to be signed off on?

Mr Fredericks : I am just having a look at the previous process in Melbourne where it essentially took a month between the short list discussion and finalisation of the panel report. That is probably a reasonable indicator of the amount of time that is required for that process.

Senator BRANDIS: When will the panel assemble for its first conversation about the Sydney vacancy?

Mr Fredericks : We would be looking at dates now for us to do that as soon as we can reasonably get together, given that the EOIs are now both closed.

Senator BRANDIS: When was the first meeting of the panel after the closure of the EOIs for the Melbourne vacancies?

Mr Fredericks : That is the one. It was two months. That is the issue that Mr Wilkins has just taken you through. The period of time between the shortlisting discussion or meeting and the production of the panel report was approximately a month. That is why I say that is a reasonable guide to our timings. It does depend a little bit on availability of the panel members. It depends a little bit on our capacity to organise a day where we can all be in the same place and can interview and have discussions with applicants.

Senator BRANDIS: How many expressions of interest have been received?

Mr Fredericks : I do not know that.

Senator BRANDIS: Approximately? Does anyone at the table know?

Mr Fredericks : At this stage, we do not know. I do not have that information here.

Senator BRANDIS: Have you had any discussions with the Attorney in relation to the filling of the Sydney vacancy?

Mr Fredericks : The one discussion I have had with the Attorney about the Sydney vacancy was on the decision by him for the department to proceed with a process in relation to the Emmett vacancy and then to extend that process to the new Sydney vacancy.

Senator BRANDIS: When was Chief Justice Allsop consulted in relation to that process being adopted?

Mr Wilkins : There have been a few conversations. I spoke to him about it when he was first appointed—it might even have been before he actually came on board but after his appointment had been announced—because there was some contention about the role of the Chief Justice in this process and I wanted to tease out with him what his thinking was about that. There were some discussions then with the Attorney-General. I had discussions with the Attorney-General and just explained what the different views had been about, particularly, the role of the Chief Justice in relation to both interviews and the appointment process. I suggested to the Attorney that it was important for him to discuss this matter with the Chief Justice and then to make a concluded view about whether he thought the procedure was appropriate or not or what the procedure should be.

Senator BRANDIS: And has the Attorney-General now, to your knowledge, reached a concluded view and conveyed it to you?

Mr Wilkins : Yes, he has.

Mr Fredericks : Yes.

Senator BRANDIS: Which was to go ahead with the process?

Mr Wilkins : Yes, that is correct.

Senator BRANDIS: When was that communicated to you?

Mr Wilkins : We could probably find an approximate date. It was on a submission, wasn't it?

Mr Fredericks : The general answer to that question is that we know it was some time after Chief Justice Allsop was appointed, and that was in early March. So these conversations that the secretary had would have been around that time. It would have been somewhere around that time in March that the Attorney would have concluded that he wanted this process to go ahead as we have been doing it.

Senator BRANDIS: Now let's deal with the Brisbane appointment. When was the EOI for that?

Mr Fredericks : That was advertised on 10 May 2013.

Senator BRANDIS: 10 May? But that is before the budget.

Mr Fredericks : Correct. It is four days before the budget.

Senator BRANDIS: But the new Brisbane position was not announced until the budget.

Mr Fredericks : Correct.

Senator BRANDIS: So why was the EOI called for before the position had been created?

Mr Fredericks : The short answer to that is that the Attorney's office requested that we proceed with that EOI on that particular weekend on 10 May, and we were advised that we had been given approval by the Treasurer to do that.

Senator BRANDIS: When you say 'the Attorney's office', who did that on behalf of the Attorney's office, or was it the Attorney himself?

Mr Fredericks : It was not a conversation with me. I do not know the answer to that question. Certainly there is no mystery here. The Attorney's office advised us that we—

Senator BRANDIS: But at the time it was advertised for this was a non-existent vacancy. It is still a non-existent vacancy until the parliament passes the budget, I might say. But, at the time it was advertised for, there was no vacancy—

Mr Wilkins : It is not a non-existent vacancy. As we heard, the question is about funding. If the Treasurer says that the funds will be made available—

Senator BRANDIS: The government will provide $10.8 million over four years to allow for the appointment of three additional judges and support staff to the Federal Court of Australia—that was announced on 14 May. On 10 May there was no vacancy in Brisbane, nor had the Federal Court—nor can I tell you from my conversations with individuals who are informed of these matters had the judges of the Federal Court in Brisbane—sought an additional judge. All of that is correct, isn't it, Mr Fredericks?

Mr Fredericks : I can only advise you what I have advised before which was the Attorney-General's office advised us that they had the permission of the Treasurer for us to proceed with the advertisement of this position.

Senator BRANDIS: So the Chief Justice of the Federal Court had not asked for this appointment to be made—correct?

Mr Fredericks : I cannot answer that question.

Mr Wilkins : I cannot answer that question either.

Senator BRANDIS: He had not. We have heard from Mr Soden that the court did not specifically seek the creation of a new federal judicial position in Brisbane.

Mr Wilkins : Yes, but we also—

Senator BRANDIS: The Chief Justice of the Federal Court did not ask for this to be created, did he?

Mr Wilkins : I do not know; I do not think so.

Senator BRANDIS: Nor did the judges of the Brisbane registry ask for an additional judge, did they?

Mr Wilkins : As Mr Soden says, the court has been asking for additional resources for some considerable time.

Senator BRANDIS: Courts, agencies, your department, no doubt, Mr Wilkins, are always asking in a general aspirational way for additional resources, but we are talking about the creation of a specific position at a specific registry which has had a specific establishment of judges for a period of time. The court did not ask for this position to be created. The Chief Justice did not ask for the position to be created. The Brisbane based judges were not seeking another position to be created in Brisbane, so why was it done?

Mr Wilkins : Because the government decided to do it.

Senator BRANDIS: And you were instructed by the Attorney to advertise for this position, because he told you that he had been advised by the Treasurer that it was going to be in the budget—is that what it amounts to?

Mr Fredericks : Essentially, the Treasurer had in a sense given his permission for a measure that was to be announced in the budget to be announced effectively before the budget. Of course that is a standard process.

Senator BRANDIS: It was advertised on 10 May—

Mr Wilkins : It is not normal practice but it is certainly not abnormal process to announce things in advance of the budget.

Senator BRANDIS: Mr Wilkins, you are the last person who needs to be reminded that appointments to the—

Senator Ludwig: It is a question; it is not a reminder. It is time to ask a question, Senator Brandis. I am not sure trying to give a lecture—

Senator BRANDIS: I am going to ask a question, Minister, if you would stop interjecting. Mr Wilkins, you are the last person who needs to be reminded that appointments to the federal judiciary must have the confidence of the public, and therefore would you not agree that any irregularity, anything unusual or hasty, about a judicial appointment puts that confidence at risk.

Mr Wilkins : I think it is a hypothetical question. I think it is going through a due process.

Senator BRANDIS: You have said yourself it is unusual to do it this way.

Mr Wilkins : But it is not unprecedented to do—

Senator BRANDIS: It wasn't unprecedented to appoint Lionel Murphy to the High Court. It does not mean it was not disgraceful. Mr Wilkins, why would you, given the values that you represent and your custodianship of those values as the secretary of the department, be satisfied that an unusual process will be not an unprecedented one, should have been suffered to occur?

Mr Wilkins : I am also a professional public servant. There is nothing illegal or irregular—

Senator BRANDIS: There is nothing illegal about it.

Mr Wilkins : Exactly, and I am a professional public servant, I do not comment on these matters. I will not be drawn into the type of political controversy that is involved in maybe trying to be excited in relation to this particular appointment. We are very careful to do things according to the book.

Senator BRANDIS: So am I, Mr Wilkins. In the 5½ years that I have been shadow Attorney-General, I have not criticised a single judicial appointment at any level by this government. Even though I have been privately sceptical of one or two, I have kept my scepticism to myself. I am bound to say that when on the eve of an election a process is foreshortened in a way that you yourself describe as unusual, then it does trouble me. Mr Fredericks, when did the expressions of interest close?

Senator Ludwig: Were you troubled when the former Attorney-General, Mr Ruddock, appointed a range of people prior to an election? Yes, you were not troubled by that.

Senator BRANDIS: Mr Fredericks, when did the expressions of interest close?

Senator Ludwig: How many were put in?

Senator BRANDIS: Mr Fredericks, do not worry about the political barracking by the minister at the table, just answer my questions. When did the expressions of interest close?

Senator Ludwig: Sounds like you are doing your own political barracking here.

Mr Fredericks : The expressions of interest for Brisbane closed on the 27th.

Senator BRANDIS: On 27 May. Is it the same panel?

Mr Fredericks : It will be the same panel, yes.

Senator BRANDIS: Has that panel met yet?

Mr Fredericks : No.

Senator BRANDIS: Is it scheduled to meet?

Mr Fredericks : I think the panel's aim will be to have one meeting where we are able to consider both Sydney and Brisbane simultaneously. It is just a matter of getting our diaries together.

Senator BRANDIS: By when would you expect the report of the panel to go to the Attorney-General?

Mr Fredericks : Senator, the best I can do is reiterate, as I said earlier, that when you look back at the Melbourne process the timeline between the meeting of the panel and the finalisation of the report was about a month, so that is probably a reasonable answer to your question.

Senator BRANDIS: How many expressions of interest were received?

Mr Fredericks : I do not know the answer to that; I will have to take that on notice.

Senator BRANDIS: You will be back here tomorrow evening, of course, so just make the inquiry and you can tell me tomorrow, because we may not meet again.

Mr Fredericks : Yes, happy to.

Senator BRANDIS: I want to ask you about some appointments to the Federal Circuit Court announced by the Attorney-General on 16 May. I particularly want to ask about the appointment of Ms Suzanne Jones, the wife of Mr Dave Oliver, the secretary of the ACTU. When were the expressions of interest for that appointment advertised?

Mr Fredericks : Senator, I will pass to Ms Glanville; she has responsibility for the appointment processes for the Federal Circuit Court.

Ms Glanville : Senator, I am just checking that, so if you can bear with me. The advertisements in relation to the Federal Circuit Court appointments were in the Financial Review on 14 September 2012, the Australian, the Melbourne Age, the Northern Territory News

Senator BRANDIS: I do not need to know all of the newspapers.

Ms Glanville : on 15 September 2012.

Senator BRANDIS: So, the middle of September 2012.

Ms Glanville : Yes, also in the National Indigenous Times on the 19th.

Senator BRANDIS: When did those expressions of interest close?

Ms Glanville : On 8 October 2012.

Senator BRANDIS: Can you tell me how many expressions of interest were received by 8 October?

Ms Glanville : Yes, I can. There were 78, but there is also a process where people can be nominated by, say, the Law Council or the Bar Council, so the actual number of candidates in total was 82.

Senator BRANDIS: Right, 82. Was Ms Suzanne Jones one of the 78 people who lodged an expression of interest by 8 October?

Ms Glanville : Yes.

Senator BRANDIS: When did the panel meet, please?

Ms Glanville : I cannot tell you when the panel actually met. I could get that for you. I could take that on notice.

Senator BRANDIS: Let me know tomorrow, would you?

Ms Glanville : Yes.

Senator BRANDIS: When was the short list finalised?

Ms Glanville : Once again, I would have to take that on notice and give you that date.

Senator BRANDIS: Was the process the same as Mr Fredericks has described for Federal Court appointments?

Ms Glanville : No, it is a different process. There is an interview process and the shortlisted candidates are invited for an interview. The interview process includes scenarios where the candidates have to give a judgment in a matter that is relevant to the Federal Circuit Court, as well as answer a series of questions.

Senator BRANDIS: How many iterations of the short list were there?

Ms Glanville : When you say 'iterations'—

Senator BRANDIS: We heard from Mr Fredericks that, in relation to the Sydney and Melbourne appointments, there was only ever one short list. In other words, the same names; one finite group of names that did not change. By 'iterations' I mean different versions of a short list with perhaps different names included or omitted.

Ms Glanville : Because there were four appointments to be made—two to Melbourne, one to Darwin and one to Sydney—there was an initial short list and then, depending on the outcomes of that, there was a subsequent short list.

Senator BRANDIS: So there were two?

Ms Glanville : Yes.

Senator BRANDIS: Was Ms Suzanne Jones on the initial short list?

Ms Glanville : She was on the second short list.

Senator BRANDIS: She was not on the first short list?

Ms Glanville : No.

Senator BRANDIS: How many names were on the first short list?

Ms Glanville : I would have to take that on notice.

Senator BRANDIS: Approximately?

Ms Glanville : I would have to take that on notice.

Senator BRANDIS: How many names were added to the short list when the second short list was prepared?

Ms Glanville : About five, but I would have to check that.

Senator BRANDIS: So Ms Suzanne Jones was one of about five people who did not make the short list but made the second short list?

Ms Glanville : The way in which the shortlisting occurs is that the panel considers the applicants that it feels are the applicants of primary interest. There may also be some applicants of secondary interest. If that is the case, it may well be that the applicants that are of secondary interest—depending on how the applicants of primary interest perform, if I can put it in that term—may be included in what the final list actually looks like.

Senator BRANDIS: We know Ms Jones did not make the first short list. Did her appointment have the support of the Chief Judge?

Ms Glanville : Yes.

Senator BRANDIS: Chief Judge Pascoe?

Ms Glanville : Yes.

Senator BRANDIS: Are you sure of that?

Ms Glanville : The panel is comprised of the chief, John Pascoe; a retired Family Court judge, Susan Morgan; and myself. That appointment had the complete support of the Chief Magistrate.

Senator BRANDIS: Can you explain to me, please, why in the case of this particular applicant, who did not make the short list when it was first prepared—Ms Jones; Mr Oliver's wife—she was chosen from the unsuccessful applicants to be on the second short list?

Ms Glanville : It is not that there are unsuccessful applicants; it is that the process—

Senator BRANDIS: There are people who are on the short list and there are people who are not on the short list.

Ms Glanville : There are people who have applied to be federal magistrates, as it was then, and, when there are a significant number of appointments to be made to a number of different jurisdictions, it is a matter of ensuring that there is the right mix of candidates for the needs of the particular jurisdictions.

Senator BRANDIS: That decision can be made at the time the initial short list is prepared. Indeed, you heard Mr Fredericks speaking about the Federal Court, that only one short list had to be prepared. The same principles of selection would presumably apply to another Federal Court, would they not?

Ms Glanville : The reality is that until you commence and conclude the process of what might be your primary candidates of interest you are not sure whether the mix is right and whether the applicants being interviewed have the requisite skills for the positions that are being sought.

Senator BRANDIS: Or connections with the Australian Labor Party?

Mr Wilkins : That is not relevant. It is also not a fair question.

Senator BRANDIS: Ms Glanville, you have not answered my last question. Why in particular was Ms Suzanne Jones selected from the candidates who were not on the initial short list to be included on the second short list? Why her rather than any of the other candidates who did not appear on the first short list?

Ms Glanville : Because she was part of the group that I referred to that were very close but did not make the first cut. She was discussed as part of that initial process and following the first round of interviews there were then some further candidates interviewed.

Senator BRANDIS: Did people go off the short list as well as go onto the short list between the first short list and the second short list?

Ms Glanville : No.

Senator BRANDIS: So the additional five people who were on the second short list but not the first short list were in supplementation of not in substitution for candidates on the first short list?

Ms Glanville : If you are asking were there some people who were initially interviewed who were found to be not suitable for appointment, that certainly occurred. I have not known of an Attorney who would necessarily appoint someone who was not suitable, so in that sense they do go off the list, if that is the question you are asking.

Senator BRANDIS: When was the first short list sent to the Attorney-General?

Ms Glanville : We do not send the short list to the Attorney-General.

Senator BRANDIS: So you do not follow the practice that Mr Fredericks follows for the Federal Court?

Ms Glanville : There might be the running through of who has applied—

Senator BRANDIS: And who is on the short list?

Ms Glanville : Yes but it is not sent to the Attorney-General as such.

Senator BRANDIS: Is the Attorney-General either directly or through his political staff—

Ms Glanville : It is a similar process to the one that Mr Fredericks described.

Senator BRANDIS: If it is similar to the process that Mr Fredericks described, then the Attorney-General's office would have been made aware of who was on the shortlist. Did that happen?

Ms Glanville : Yes.

Senator BRANDIS: Were they made aware of who was on the first short list?

Ms Glanville : Yes.

Senator BRANDIS: And presumably they were also made aware of who was on the second short list?

Ms Glanville : I will need to check that because in the intervening period there was a change of Attorney-General. To be clear on that I would need to look at what impact that would have had on the process.

Senator BRANDIS: This is a very serious matter—it is very serious that all these appointments be regular and there is nothing unusual about them. Rather than go to my next question, I will invite you overnight to check those facts and the various matters I have asked you to take on notice and we will resume tomorrow.

Ms Glanville : That is fine.

Committee adjourned at 22:59