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Legal and Constitutional Affairs Legislation Committee


In Attendance

Senator Brandis QC, Attorney-General, Minister for the Arts

Attorney-General's Department


Mr Chris Moraitis PSM, Secretary

Mr Tony Sheehan, Deputy Secretary, Strategic Policy and Coordination Group

Mr David Fredericks, Deputy Secretary, Civil Justice and Legal Services Group

Ms Katherine Jones, Deputy Secretary, National Security and Criminal Justice Group

Outcome 1— A just and secure society through the maintenance and improvement of Australia's law and justice framework and its national security and emergency management system

Access to Justice Division

Mr Greg Manning, First Assistant Secretary

Dr Albin Smrdel, Assistant Secretary, Courts Tribunal and Justice

Ms Elizabeth Quinn, Acting Assistant Secretary, Legal Assistance

Ms Kelly Williams, Assistant Secretary, Marriage and Intercountry Adoption

Ms Tamsyn Harvey, Assistant Secretary, Family Law

Civil Law Division

Mr Matt Minogue, First Assistant Secretary

Mr Chris Allen, Acting Assistant Secretary, Classification

Ms Emily Roper, Acting Assistant Secretary, Commercial and Administrative Law

Mr Paul Pfitzner, Acting Assistant Secretary, Legal Services Policy Coordination

Ms Petra Gartmann, Acting Assistant Secretary, Native Title Unit

Ms Toni Pirani, Assistant Secretary, Commonwealth Representation Royal Commission

Constitutional and Corporate Counsel

Mr James Faulkner SC, First Assistant Secretary

Constitutional Recognition of Indigenous Australians Taskforce

Mr Will Story, Executive Director

Corporate Division

Mr Stephen Lutze, Chief Financial Officer

Mr Justin Keefe, Assistant Secretary, Service Centre

Mr Trevor Kennedy, Assistant Secretary, Financial Management, Framework and Property

Criminal Justice Division

Mr Iain Anderson, First Assistant Secretary

Mr Anthony Coles, Assistant Secretary, Criminal Law and Law Enforcement

Ms Catherine Smith, Assistant Secretary, Crime Prevention and Federal Offenders

Mr Michael Pahlow, Assistant Secretary, AusCheck

Ms Rachel Antone, Director, Operation Sovereign Borders

Defence Abuse Response Taskforce

Mr Matt Hall, Executive Director

Emergency Management Australia

Mr Mark Crosweller AFSM, First Assistant Secretary

Ms Aaron Verlin, Acting Assistant Secretary, National Disaster Recovery Payments

Mr Chris Collett, Assistant Secretary, Crisis Coordination

Mr Mike Norris, Assistant Secretary, Dignitary and Major Events Security

Ms Raelene Thompson, Assistant Secretary, National Security Training and Development

Information Division

Ms Joann Corcoran, First Assistant Secretary

Mr Shaun McGuiggan, Assistant Secretary, Innovation Service and Delivery

International Law and Human Rights Division

Mr John Reid, First Assistant Secretary

Ms Anne Sheehan, Acting Assistant Secretary, International, Law and Trade

Ms Helen Daniels, Assistant Secretary, International Human Rights Law

Mr Stephen Bouwhuis, Assistant Secretary, Human Rights Policy

International Crime Cooperation Division

Ms Catherine Hawkins, Acting First Assistant Secretary

Ms Alex Matthews, Assistant Secretary, Transnational Crime and Corruption

Mr Ryan Perry, Acting Assistant Secretary, International Crime Cooperation Central Authorities

Ms Elizabeth Brayshaw, Acting Assistant Secretary, International Legal Assistance

National Security Resilience Policy Division

Dr Carolyn Patteson, Acting First Assistant Secretary

Mr David Campbell, Acting Assistant Secretary Cyber and Identity Security Policy Branch

Mr Michael Jerks, Assistant Secretary Critical Infrastructure and Protective Security Policy Branch

Ms Samantha Chard, Assistant Secretary Emergency Management Policy Branch

Mr Duncan Anderson, Director, Cyber and Identity Security Policy Branch

National Security Law and Policy Division

Ms Jamie Lowe, First Assistant Secretary

Ms Anna Harmer, Assistant Secretary, National Security Legal Policy

Ms Anna Sherburn, Director, Countering Violent Extremism Unit

Ms Christina Raymond, Senior Legal Officer, National Security Legal Advisor Group

Ms Natalie Pearse, Director, National Security Policy

People Strategy

Ms Rachael Jackson, Assistant Secretary

Royal Commission into Institutional Response to Child Sexual Abuse

Mr Philip Reed, Chief Executive Officer

Royal Commissi on into Trade Union Governance and Corruption

Ms Jane Fitzgerald, Chief Executive Officer

Strategy and Delivery Division

Ms Sarah Chidgey, First Assistant Secretary

Ms Kathleen Denley, Assistant Secretary, Strategy, Governance and Deregulation

Outcome 2— Participation in, and access to, Australia's arts and culture through developing and supporting cultural expression

Ministry for the Arts

Ms Sally Basser, First Assistant Secretary

Mr Grant Lovelock, Assistant Secretary, Access and Participation

Ms Lyn Allan, Assistant Secretary, Creative Industries

Ms Rebecca Rush, Acting Assistant Secretary, Collections and Cultural Heritage

Ms Jacqui Ulhmann, Acting Assistant Secretary, Arts Development and Investment

Australian Commission for Law Enforcement Integrity

Mr Robert Cornall AO, Acting Integrity Commissioner

Mr Nicholas Sellars, Acting Executive Director Secretariat

Ms Sarah Marshall, Acting Executive Director Operations

Australia Council

Mr Tony Grybowski, Chief Executive Officer

Mr Tim Blackwell, Executive Director, Corporate Resources

Australian Crime Commission

Mr Chris Dawson APM, Chief Executive Officer

Ms Judy Lind, Executive Director Strategy and Specialist Capabilities

Mr Warren Gray, Acting Executive Director Operations

Mr Paul Williams, Executive Director Corporate Services

Australian Federal Police

Mr Andrew Colvin, Commissioner

Mr Andrew Wood, Chief Operating Officer

Mr Kevin Zuccato, Acting Deputy Commissioner Close Operations Support

Ms Leanne Close, Acting Deputy Commissioner National Security

Mr Ramzi Jabbour, Deputy Commissioner Operations

Australian Financial Security Authority

Ms Veronique Ingram, Chief Executive and Inspector General Bankruptcy

Mr Andrew Sellars, General Counsel

Mr Gavin McCosker, Chief Operating Officer

Mr Robert Hanlon, Chief Financial Officer

Australian Human Rights Commission

Professor Gillian Triggs, President

Mr David Richards, Chief Financial Officer

Ms Elizabeth Broderick, Sex Discrimination Commissioner

Ms Padma Raman, Executive Director

The Hon Susan Ryan AO, Age and Disability Discrimination Commissioner

Mr Tim Wilson, Human Rights Commissioner

Australian Law Reform Commission

Ms Sabina Wynn, Executive Director

Australian Security Intelligence Organisation

Ms Kerry Hartland, Deputy Director-General

Family Court of Australia and Federal Circuit Court of Australia

Mr Richard Foster PSM, Chief Executive Officer

Mr Adrian Brocklehurst FCPA, Executive Director Corporate and Chief Financial Officer

Ms Angela Filippello, Principal Registrar

Mr Steve Agnew, Executive Director Operations

Federal Court of Australia

Mr Warwick Soden, Registrar and Chief Executive Officer

Mr Andrew Luttrell, National Registrar, National Native Title Tribunal

Mr Mario Torresan, Director Corporate Services

Mr Peter Bowen, Chief Financial Officer

National Film and Sound Archive of Australia

Mr Michael Loebenstein, Chief Executive Director

Ms Denise Cardew-Hall, Acting General Manager Corporate and Business Affairs

Mr Matthew Davies, Acting General Manager Collections

Office of the Australian Information Commissioner

Professor John McMillan, Australian Information Commissioner

Ms Alison Leonard, Assistant Commissioner Corporate Support and Communication

Dr James Popple, Freedom of Information Commissioner

Mr Timothy Pilgrim, Privacy Commissioner

Office of Parliamentary Counsel

Mr Peter Quiggin PSM, First Parliamentary Counsel

Screen Australia

Mr Graeme Mason, Chief Executive Officer

Ms Fiona Cameron, Chief Operating Officer

Mr Richard Nankivell, Chief Financial Officer

Committee met at 09:02

CHAIR ( Senator Ian Macdonald ): I declare this hearing of the Legal and Constitutional Affairs Legislation Committee open. I note the Attorney-General is not here but I understand he is close by. I know he has heard all this before as all of you have, but I am obliged to read some of it to you. I will start on that while we await the Attorney.

The Senate has referred to the committee the particulars of proposed expenditure for 2014-15 of the portfolios of A-G, and Immigration and Border Protection and certain other documents. The committee may also examine the annual reports of departments and the agencies appearing before it.

The committee has fixed the close of business on Friday, 6 February as the date for return of answers to questions taken on notice. The committee has also decided that written questions on notice should be provided to the secretariat by the close of business on Friday, 19 December.

The committee's proceedings today will examine the Attorney-General's portfolio. Under standing order 26, the committee must take all evidence in public session, this includes answers to questions on notice. I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege.

Any questions going to the operation of financial positions of departments and agencies which are seeking funds in the estimates are relevant questions for the purposes of estimates.

I remind officers that the Senate has resolved that there are no areas in connection with the expenditure of public funds where any person has the discretion to withhold details or explanations from the parliament or its committees unless the parliament has expressly provided otherwise. The Senate has resolved also that an officer of a department of the Commonwealth should not be asked to give an opinion on matters of policy and should be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted.

Officers and senators are familiar with these rules of the Senate governing estimates hearings. If you need assistance, the secretariat has a copy of the rules. In particular, I draw the attention of witnesses to the order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised, and which I now incorporate in Hansard.

The extract read as follows—

Public interest immunity claims

That the Senate—

(a) notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate;

(b) reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate;

(c) orders that the following operate as an order of continuing effect:

(1) If:

(a) a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and

(b) an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee, the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.

(2) If, after receiving the officer’s statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.

(3) If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.

(4) A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.

(5) If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.

(6) A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.

(7) A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (1) or (4).

(8) If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3).

(d) requires the Procedure Committee to review the operation of this order and report to the Senate by 20 August 2009.

CHAIR: Attorney, we started with the formalities, knowing that you were not far away. So, welcome. I will invite you to make an opening statement. But, before I do, I will perhaps offer some congratulations. I heard in the media last night that there were some awards for human rights matters that seemed to be very positive. Perhaps you might start with that and tell us what that was all about.

Senator Brandis: Thank you very much, Mr Chairman. Yes; last night I was the keynote speaker at the Australian Human Rights Awards. Yesterday was International Human Rights Day. For some years now the Australian Human Rights Commission has celebrated International Human Rights Day on 10 December by announcing awards in various categories to citizens or organisations that have contributed to the cause of human rights in Australia in the previous year. In speaking last night I made a point, of course, of congratulating the recipients of the awards and indeed all the people who had been nominated for awards. I also made the point that our country has taken significant strides in the human rights field in 2014. I pointed out that more children have been released from immigration detention in 2014 than in any previous year. I pointed out that at the time the 2013 election was called the most recent statistics available—that is, for the month of July 2013—revealed, shamefully, that there were 1,992 children in immigration detention, and at the end of November this year that case load had been processed so that the number was down to about 700, from 1,992 at its peak.

I was able to advise those present, as Mr Morrison has already announced, that all the children in immigration detention at the moment on Christmas Island would be released from Christmas Island before Christmas—in other words, within the next fortnight—and would be released into the community as soon as possible. I was also able to announce that 2014 is the first year since 2008 when we can say that no children—and indeed no men or women—drowned at sea as a result of falling into the hands of people smugglers. I thought those in particular were very considerable human rights achievements that Australia has marked in the year 2014.

I also, by the way, mentioned the work towards the constitutional recognition of Indigenous people and the manner in which that has progressed this year, including through the work of the joint parliamentary committee and the work of others, including RECOGNISE, as well as the constructive contribution to the debate about national security legislation, in which the Australian Human Rights Commission has been involved. That has enabled the architecture of our national security legislation following the reforms that have been made in recent months to contain even stronger human rights protections. So, I was able, among other things, to acquaint the Human Rights Awards night with those happy developments. I was able to tell them that the government has decided to recommend to His Excellency the Governor-General the reappointment of Mr Mick Gooda as the Aboriginal and Torres Strait Islander Social Justice Commissioner. That was very well received. And the government looks forward to working with Mr Gooda to promote the constitutional recognition initiative.

I was able to announce that next year, which is the 800th anniversary of Magna Carta—which, of course, Senator, you would know—that that important anniversary will be marked by an education program led by the Human Rights Commissioner, Mr Tim Wilson, which would particularly acquaint schoolchildren of the importance of Magna Carta. More importantly, it will make the broader point that the source of those human rights we enjoy in Australia are not international instruments; the source of the human rights we enjoy, which are acknowledged and declared by international instruments, are in fact our own domestic legal traditions and constitutional traditions. Ultimately, the traditions we inherited at the time of settlement of Australia in 1788 we inherited from the British constitutional tradition and the liberal and parliamentary institutions of Britain.

I was also able to announce, following discussions with Mr Andrews, the Minister for Social Services, and Senator Fifield, the Assistant Minister for Social Services, that in 2015 I would be asking the Human Rights Commission to conduct a major inquiry into employment discrimination against older Australians and Australians with a disability. That announcement was received particularly warmly, I might say, by Ms Susan Ryan, the Age and Disability Discrimination Commissioner.

CHAIR: And by me, Senator Brandis.

Senator Brandis: Those are some of the things that I was able to acquaint the Human Rights Awards ceremony with of Australia's achievements in the past year in the human rights field and the government's agenda for next year involving the commission in various human rights related matters.

CHAIR: Thank you very much for that, Attorney, and there may be some questions later in the program that we can ask you about some of those things. I should have indicated that my colleague Senator O'Sullivan is on the telephone. If you have any questions, Senator O'Sullivan, give us a yell somewhere along the line and we will make sure that you are accommodated.

Senator O'SULLIVAN: Thank you.

CHAIR: Thank you for that opening statement, Attorney. We do have a program in front of us. The first one we have is the Office of the Australian Information Commissioner. I am hopeful that we will get through the program today. It is reasonably concise.