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Legal and Constitutional Affairs Legislation Committee
23/05/2012
Estimates
ATTORNEY-GENERAL PORTFOLIO
Office of the Australian Information Commissioner

Office of the Australian Information Commissioner

[17:52]

CHAIR: Welcome. You indicated that you do not have an opening statement, so we will go straight to questions.

Senator BRANDIS: Professor McMillan, on 27 March you are quoted as saying that the government's:

… commitment to open government is being undermined by its refusal to adequately fund the oversight of Freedom of Information and privacy laws.

You drew attention to the fact that the Office of the Information Commissioner had only three-quarters of the staff that government had foreshadowed, when it was established in late 2010. The government is now enforcing additional budgetary cuts.

In a letter to the Department of Finance and Administration you wrote about the 2.5 per cent additional efficiency dividend and why it should be applied to such a small agency as yours, with a budget of only $11.943 million. You said to Mr Tune from DOFA:

If we are forced to reduce further Office of the Australian Information Commissioner staff numbers I hold a genuine concern that we will not be able to discharge our functions effectively.

Shortly thereafter, it was reported in the Fairfax newspapers that the Labor government was spending 13 times more money on high-performance shredding machines than on training public servants to handle freedom of information requests. Would you like to take the opportunity to elaborate on your remarks and to apprise the Senate of the challenges your agency is facing?

Prof. McMillan : The only comment I have made that is on the public record is the letter that I wrote to the Secretary of the Department of Finance and Deregulation and in similar terms to the Secretary of the Attorney-General's Department. That letter was tabled at a meeting of the Senate estimates committee in February this year. I have not made any other public statement. But the comments I made in that letter, one of which you quoted—that I hold a genuine concern that we cannot discharge our functions effectively—have been on the public record.

I essentially made two points in that letter. The first was that the staffing levels for the office were lower than were projected at the time the office was being established. It was projected at the time that to combine the various functions in relation to privacy, freedom of information and information policy the office would have a staff of 100. The average staffing level for the past year has been about 80, but it has dropped at times to 75, which explains the comment of 'three-quarters'. The occasion for writing the letter was concern at the impact that the extra efficiency dividend of 2.5 per cent would have on the capacity of the office to discharge its functions. As I said in the letter, I held a genuine concern. The office has many functions. There is a high expectation within government and in the public that those functions will be discharged properly. It has been handling a large and growing caseload, particularly in relation to privacy complaints and freedom of information complaints.

Senator BRANDIS: A large and growing caseload with a small and diminishing budget.

Prof. McMillan : Yes, and there are new challenges on the horizon—changes to the privacy legislation, a review of the FOI Act later this year and a review of the FOI changes earlier this year. There are some exciting opportunities we would like to address—for example, playing a major role in the public debate about a national government information policy. As I said, that is the only statement I have made that has gone on the public record. Otherwise, we are doing our best at the moment to address each of those challenges. We are trialling different opportunities to achieve as best we can in each of those areas with the staffing that is available.

Senator BRANDIS: I am just looking at the portfolio budget statements. Page 406 deals with your agency. It tells us that the appropriation available to you in the last financial year was $17,275,000. The appropriation available to you in this budget is $14,871,000. That is a cut of about $2.5 million. If you look at table 1.2, you will see that there are cuts between $250,000 and $300,000 in each of the four years across the forward estimates. You have said you have a large and growing case load. Your budget has been reduced by a very substantial proportion relative to the total budget this year, and you are going to have further reductions across all of the forward estimates. How are you going to manage?

Prof. McMillan : The figures that you quoted include a number of items. For example, there was an allocation for capital. Probably the more realistic figure, from which we have been working, is the item that is at page 412, in item 3.23 of the budget statements, and it is a line called 'Revenue from government'. The estimated revenue in 2011-12 is just over $11 million and the estimate for 2012-13 is $10.8 million. The impact of the efficiency dividend, a couple of pages back, is estimated to be $278,000 in the next financial year and similar amounts in the out years. That is really the figure we have to grapple with. There are other amounts. As I say, there is a capital amount; there are amounts we obtain under memoranda with agencies to play a role in particular areas and there is a defined task there. The real challenge is in relation to that reduction in the next year of close to $300,000. As I say, we have projects underway. Obviously we focus firstly on the essential statutory functions, work which involves handling privacy and freedom of information complaints and inquiries and reviews. We have a number of strategies that we are currently working through. One of the most publicised issues about the office has been the backlog in relation to Information Commissioner reviews, a backlog currently over 300. The latest figure, as at 16 May, was a backlog of 356.

Senator BRANDIS: How far does that backlog stretch? What is the longest outstanding case?

Prof. McMillan : The longest outstanding case is 15 months. The strategy we have underway at the moment is to dedicate quite a substantial proportion of the resources to addressing that backlog. For example, we have got on secondment, under our budget, a senior officer from the Attorney-General's Department for six months to lead both a review and a strike force. This is a common problem the tribunal face in the early years. It is not uncommon that they get a large case load and they have to find their way in how best to grapple with it. We are going through that. Whether that will be a successful strategy and whether we can discharge all our functions effectively and professionally within the reduced budget that we have is clearly an issue that is discussed anxiously within the office, but we will have a better view probably at the better end of this year.

Senator BRANDIS: Have you received a response to your report of February 2012 in relation to charges under the FOI Act?

Prof. McMillan : No. That was a report to government, and in discussion with the Attorney-General it was agreed that I would release the report without any government announcement. There are a number of far-reaching recommendations, including a couple that have been controversial. I understand the government's view was that, after the release of the report, there would be some further debate. I have announced that I am prepared to receive further submissions. I have received some comments and submissions, and I will probably make a further public report on the issue, and then I expect government will announce its views.

Senator BRANDIS: I must say, when the government is spending 13 times as much money buying high-powered shredding machines to destroy documents than it is investing in training public servants in theme information compliance, it does not seem as though it is very serious.

Prof. McMillan : I have not investigated that claim or those figures, so I have no comment to make on the priority.

Senator WATERS: I am aware that currently some departments publish online documents that have been released under FOI. I think Treasury and PMC do and SEWPaC certainly, amongst other examples, does not. I understand that there is a requirement under 11C of the FOI Act to publish a disclosure log. Is that the extent of the statutory obligations or is there anything else that requires broader public disclosure of those released documents?

Prof. McMillan : One theme of the reformed Freedom of Information Act that commenced in November 2010 was a new philosophy of proactive publication of government information. There are essentially three mechanisms in the FOI Act for that. One is the disclosure log, and I will come back to that. The second is through the information publication scheme, which defines information that must be published by agencies about their structure and functions. The third is an exhortation to agencies on a discretionary basis to publish additional information in the information publication scheme.

As to the disclosure log, section 11C requires an agency to publish on the disclosure log details of information that has been released under the Freedom of Information Act, subject to a couple of exceptions for personal and business privacy. The agency must publish those details within 10 days of releasing the information to an applicant. The agency has the option of either publishing the actual documents online—and, as you say, some agencies do that—or publishing a description of the information and how it can be obtained, usually by letter or email to the agency. In the guidelines that I have published under the act, to which agencies must have regard, I have stated my preference for publishing the documents online. I recognise that there can be reasons for not doing so. One reason is that the documents may be quite extensive and the agency may feel that they would clutter their site and that there will not be a great deal of public interest. Another is a concern that some agencies have about whether publication would be consistent with web content accessibility guidelines, which essentially require publication in multiple forms. It is certainly easy for agencies to publish documents in PDF form, particularly if they are in the form of hard copy documents—receipts and vouchers—but there are issues for agencies about whether that complies with web content accessibility guidelines. I urge agencies where I can to publish the actual documents online so that they can be downloaded free of charge. We have received some complaints where agencies have failed to do so. We have investigated those but have said that the act gives the agency discretion. It is something we will monitor over the coming months.

Senator WATERS: Thank you, that was a very comprehensive answer. You touched on many of my remaining questions, but I will check them off to make sure there is not some more useful information that you can share. What is the spirit of the FOI Act on the issue of proactive disclosure of the full documents? You have already mentioned some of the drawbacks with full disclosure—thank you, a lot of those made sense. Is there any move in the reforms that you say commenced in 2010 to update the act to require that publication online rather than just urge it through your guidelines?

Prof. McMillan : The act requires that a review of the act be commenced by the second anniversary—1 November this year—and the review has to be completed within six months. Undoubtedly this will be an issue—

Senator WATERS: A subject for the review.

Prof. McMillan : because, as I say, we have received some complaints from people who said: 'I have a strong interest in these documents. I contacted the agency and they said I had to pay copying and postal charges, and that will run into hundreds of dollars.' On the other hand, we have contacted the agency and they have said, 'We have these genuine concerns about cluttering the web with all of these.' They are difficult issues to work through, and so I think it will be a strong theme.

But one other role that my office has is to monitor compliance by all agencies with the Information Publication Scheme. We have announced a program of review. The first stage in that program is a survey of all agencies as to what they are publishing on the web, how they are highlighting the Information Publication Scheme and the disclosure log, the governance arrangements they have in place for identifying information and their responsibilities, and whether they have what are called information asset registers. The survey will look at whether their processes have been realigned with this new philosophy of proactive publication. I am delighted to say that I think close to 70 per cent of agencies have completed the survey and nearly all the major agencies. I will be doing a public report on that later this year. Another stage is that we will undertake a desktop review of close to 250 agencies, so we will independently monitor their publication activities.

Senator WATERS: That all sounds great. Will the results of those surveys be available prior to your report being delivered later in the year?

Prof. McMillan : We will certainly make the results of the survey available as early as we can.

Senator WATERS: Great. I have one last question. Again, you have already touched on this, very helpfully. You said that you had requested and urged departments to publish full documents online. Can you talk to me about what the results of those requests were. Did you have any push-back from any particular departments, as opposed to others, and did they proffer any reasons why?

Prof. McMillan : My general response is that I have been very pleased with the response of Australian government agencies to the reformed FOI Act. For example, one of the recommendations we made is that all agencies should publish an icon prominently on the home page of their website identifying this new Information Publication Scheme and this new disclosure log. Quite a number of agencies, including many of the large agencies, have the icon that we recommended on the front page of the website. Most others, from our anecdotal survey so far, have a visible link to freedom of information. So that is certainly a departure from previous practice.

I made an offer early on to address agencies about these new requirements. Most of the large departments took up the invitation. I addressed the senior executive and had frank discussions about how the world is changing as a result of these—the impact of technology, the government 2.0 agenda—and we have active discussions with agencies. For example, one of the consultative devices we have established is what we call the Information Contact Officers Network. We hold four meetings a year. We get an attendance of about 150 officers from Australian government agencies. So there is a level of involvement in the new openness and transparency agenda unlike what we have seen for the last 30 years of FOI, really.

Senator WATERS: I am pleased to hear that. I will finish by urging you to prevail upon SEWPaC to lift their game up to the better standard of some of the other departments. Thanks very much for your evidence.

Prof. McMillan : We have taken note of that. We will look at it in our reviews.

Senator WATERS: Don't tell them I told you to say it!

Senator RHIANNON: I understand that you have the power to investigate systemic problems with agencies. I was interested to ascertain how many of these you have conducted. Also, if you had additional resources, would you conduct more?

Prof. McMillan : This is in relation to freedom of information? We have similar powers in relation to privacy. In the freedom of information space we have only initiated one own-motion investigation, and that was an investigation into an aspect of freedom of information processing by the Department of Immigration. The Department of Immigration receives the largest number of requests of any agency, over 11,000 requests in the last reporting year. Over 80 per cent of those requests are handled within the statutory deadlines but there was a particular problem in the larger and more complex requests that are handled by the department in Canberra, so we have initiated an own-motion investigation on that aspect of departmental operation. We have not initiated any other own-motion investigations at this stage. We do have active discussion involvement with agencies where there is regular consultation between our office and agencies about individual problems and systemic issues, but no other formal investigations have been commenced at this stage.

Senator RHIANNON: If you had additional resources, would you conduct more?

Prof. McMillan : There is no other topic that is prominent at the moment. We have an integrated office and, for example, in the last year we conducted I think nine own-motion investigations in the privacy area. Our resources are spread across a range of different functions. There is no other freedom of information topic that we have identified at this stage for an own-motion investigation.

Senator RHIANNON: So I take it that resources is not the determining factor.

Prof. McMillan : Resources are one factor but probably priorities are greater. For example, I mentioned earlier the monitoring we are doing of compliance by close to 250 agencies with the Information Publication Scheme. That is an own-motion activity in a sense and we think that is a higher priority project at this stage.

Senator RHIANNON: I understand 12 months after proactive disclosure obligations on agencies commenced you have just started work to assess how government agencies are complying with their Information Publication Scheme obligations under the act. Could you report on your observations to date of proactive disclosure and how it is going?

Prof. McMillan : That is the project I mentioned earlier that will be in three stages. The first is a self-assessment survey by agencies of their compliance with the Information Publication Scheme. There will be a second round of that survey and then there is a desktop review that is also commenced and over the course of the next three years will cover close to 250 agencies. That is the project. The only information we have at the moment is our own kind of anecdotal, episodic information we pick up from complaints. I suppose I can be summarise it by saying I am heartened by the positive steps taken by agencies but I am aware that there are tensions and issues and there are practical challenges faced by agencies, including resourcing issues for agencies.

Senator RHIANNON: Could you share with us some of those tensions and issues and which departments have those tensions and issues?

Prof. McMillan : I will not name any individual agencies because we have not done any investigations and the act does require that we follow a natural justice procedure before we publicly criticise any agency. Most of our successful work is undertaken by discussion and negotiation with agencies. Among the problems that have been raised with us are publication only of details of information and not the documents online. Secondly, there is the problem—not so much under the disclosure log but under the Information Publication Scheme—of information that was one published being taken down. We are investigating a couple of complaints about that at the moment to see whether it was just part of normal archival practices within the agency or whether there was something more sinister, as the complaint alleges. We have also had complaints, particularly from journalists, about same-day publication under the disclosure log—that is, documents published on the disclosure log on the same day that they are released to the journalists. The complaint is that they can lose the benefit of their request. And we have had agencies raise with us the practical challenges they face in converting hard-copy documents into a web-accessible online form, particularly the costs. So they are among the challenges that have been raised.

Senator RHIANNON: When will you be able to release the assessments you are making and match it up to specific agencies so we can have more details about how each department is performing?

Prof. McMillan : The self-assessment survey by agencies should be completed this month. We have hired a professional firm to help us analyse it. I would hope that we will get their report in the next month. I may be in a position then to publish the details as early as, say, July. Whether I will publish it in an anonymised form or whether there will be a scorecard element—the best-performing and least-performing agencies—is something I have an open mind about.

Senator RHIANNON: A new league table!

Prof. McMillan : Yes, a league table! Without seeing the results, I still have an open mind. As I said, given that this is a new program and that it is at an early stage, we are best succeeding by encouraging discussion between us and agencies about what is good practice. Certainly I expect that we will highlight best practice. It is very easy to identify agencies that are examples of best practice, and that has a profound educative effect, in my experience.

Senator RHIANNON: But you will disclose the problems as well?

Prof. McMillan : Certainly we disclose the problems. Whether we nominate the individual agencies is something that I have an open mind about at this stage.

Senator RHIANNON: Just before we leave that one, what can you do if agencies are failing to comply with this obligation?

Prof. McMillan : Firstly, we can make a report to the agency, which may or may not become public. Secondly, we can make a public statement about that. And I must say, we are not shy about making statements that identify individual agencies. Certainly that is well-established practice in the privacy area. In my former role as Commonwealth Ombudsman I regularly identified agencies that had defective administration. That is an option. Publicly criticising defective practice is a well-established practice for independent oversight agencies like our own.

Senator RHIANNON: Thank you. I would like to move on to the review of charges that you have undertaken. I understand that you have proposed that an agency or minister would have the discretion to refuse to process an FOI request for personal or non-personal information that is estimated to take more than 40 hours to process. I imagine you are aware that there has been some controversy around the 40 hours.

Prof. McMillan : Yes. I was well aware when I published the report that there were a couple of controversial recommendations. I knew that was one of them, and I knew it would attract quite a lot of the debate. Let me explain it, I suppose, in two ways. One is that it was an attempt to make workable a mechanism that is already in the act, called the practical refusal mechanism, whereby an agency can decline to handle a request that would have a substantial and unreasonable impact on the agency and divert it from other functions. It is a very elastic standard which is very difficult to apply across government. So nominating a figure of 40 hours was an attempt to make that reasonable. Secondly, a strong theme in the charges report, in this and in our other work is that the world is changing in relation to transparency practices by governments. The best results are had a by a product of publication by agencies of information on the web. That is where you get the greatest public benefit and access and it is an area where resources can be devoted. In terms of the limited budget in agencies for making information available, I think some priority should be given to that area. At the end of the day, the critical thing is to retain this individual right that people have to go to an agency, nominate the document they want to see and say, 'That is the document I want.' My own view is that allowing somebody to go to an agency and say, 'I want to see these documents,' and for the agency to take 40 hours, which is more than one week of a staff member's time, to handle that individual request, was a reasonable balance between the exercise of a democratic right and the other competing ways that agencies can make information available. But not all commentators agree with that value judgment I have just expressed.

Senator RHIANNON: It would be possible, wouldn't it, that some very important FOI applications may well require more than 40 hours?

Prof. McMillan : Yes, it is. There is nothing to prevent a person then making a subsequent request. The focus of my recommendation—that one and many others—is to develop an FOI process that will focus on the documents a person needs, bearing in mind that quite a lot of information in agencies is no longer held in documentary form. But the focus is to try and narrow that process. Then it is open to a person to come back with another request. But it seems to me from my previous experience that some of the requests I see from individuals that take more than 40 hours to progress are really using FOI as the battleground for another dispute between the person and the agency. That dispute is probably better handled by the Ombudsman or in some other way rather than using an unlimited FOI request as the battleground.

Senator RHIANNON: I want to explore how it could go in the other direction. Some agencies may use this provision to frustrate access to important government information.

Prof. McMillan : That is one of the fears that people have raised, that it is for the agency to initially estimate the 40 hours. That is not a new problem in FOI, that agencies always make the estimate of the charges. But one of our distinct roles is to review the agency estimate of the time it will take to handle a request. We have all the powers we need to require further information from the agency and to go in and inspect its records system if necessary. So I believe that we can perform a genuine oversight role in ensuring that this estimate of 40 hours is a realistic one and not a device for subverting the FOI Act.

Senator RHIANNON: That probably takes us to the issue of changing the culture of how FOI works. I would imagine, just reading your material, that that must be a big challenge that you and the government face.

Prof. McMillan : Yes.

Senator RHIANNON: Would you summarise that your broad endeavour is to get more government information publicly available and have fewer complaints about FOI to investigate?

Prof. McMillan : Yes. The quotation that I most commonly use is one by the minister when he was the sponsoring minister introducing these reforms in the parliament. He said—he may want to join the discussion—that the objective was to move the culture of the Public Service from one of information control to information sharing. That is what we have defined as the cultural objective. I think there have been substantial moves across government. If one looks, for example, at the disclosure logs and at the type of information that is now published; if you look at the changes in agency practice—for example, the Defence practice of now proactively releasing its Hot Issues Briefs; if you look at the staffing levels in agencies, in terms of both the number of staff and the seniority of staff now devoted to FOI and publication; if you look at the level of engagement of senior agency officers now in FOI and publication issues, I think there has been a large cultural change. But, wherever one draws the line between openness and secrecy, you can always move it just a little further towards greater openness, and that is our perpetual challenge.

Senator RHIANNON: If we are trying to obtain that cultural shift, wouldn't it be better to oversight how agencies are dealing with FOI actions? Wouldn't that be critical to achieving that cultural shift?

Prof. McMillan : Yes. And that is why, for example, in the Information Commissioner review matters I mentioned earlier, we have a large backlog. The most effective strategy for reducing that backlog and resolving cases is by discussion between our office and the agencies. More often than not, that consultation results in disclosure to a point that satisfies the applicant—and, after all, that is the objective. I mentioned earlier, for example, that we have an Information Contact Officer Network that is attended by roughly 150 FOI and privacy contact officers every three months when we hold it. These are big changes and very useful forums for productive discussion.

Senator RHIANNON: Yes. At the end of the day, you do wonder if agencies will put information out there that is politically damaging to the government, and to break that down is huge. But we will move on to costs—and obviously, if you have any comments on that, I am interested. What scope do you believe there is for reducing costs and also time to process through more proactive disclosure, culture change within departments—to go back to that—and better use of technology such as agency websites and reduced review costs by agencies being less defensive in making applications?

Prof. McMillan : Can I just go back to your point about whether an agency will ever release information that is embarrassing or critical of the government. I should put on the record that one of the important elements of the reformed FOI Act is that it now declares that embarrassment, confusion or uncertainty following release is an irrelevant consideration. An agency cannot consider that. People say—I hear the comment—that agencies will not do that, but the act declares that to be an irrelevant consideration, so it cannot enter into the reasoning, and we scrutinise the reasoning closely to make sure that it is never there.

Beyond that, I agree with you that the future lies in better digital management of information. We have been in close discussion, for example, with the National Archives office, which recently commenced a digital transition plan, which is an exciting opportunity to move Australia substantially forward in this area.

Senator RHIANNON: I look forward to continuing after the break.

Proceedings suspended from 18:33 to 20:00

CHAIR: Let us reconvene this public hearing of the Senate's Legal and Constitutional Affairs Legislation Committee. This is our consideration of the budget estimates for 2012-13 for the Attorney-General's portfolio. I welcome back the representatives from the Office of the Australian Information Commissioner.

Senator RHIANNON: To pick up on some of the themes we were talking about before the break, I was interested in hearing your views on whether the FOI legislation is inadequate. I sometimes hear suggestions that the government's commitment to open government may in fact be frustrated because there are missed opportunities and gaps identified in the new FOI legislation that may need to be fixed. What do you see as the biggest problems that need to be addressed and how do they impact on your work, if you judge the legislation is inadequate?

Prof. McMillan : Let me note firstly that the act does require a review to be commenced by the end of the year. Most of the problems that we have identified are technical problems to do with the processing of requests. For example, what position is an agency in once the time for deciding a request is beyond the statutory time frame? To what extent should it continue work or have discussions with my agency? There are also technical problems when there are multiple parties involved. To this point we have not identified any major structural problems in the balance of the act between giving a right of access and requiring agencies to publish—nor in the exemption provisions, nor in review. Later in the year we will be proposing some amendments to give us a more flexible range of powers for disposing of applications.

I will ask the Freedom of Information Commissioner, James Popple, if he has comments, but I will make a final comment and it is something that we often have to remind applicants about. If you go down the path of framing a freedom of information act request, it will not necessarily be as straightforward or as easy as you want. The act necessarily requires you to identify the document that you are seeking and you are probably unaware of the exact title of the document. It is commonplace and not surprising that many requests are framed too broadly or in terms that are difficult for agencies to comprehend. Consequently, there often is a need for discussion between applicants and agencies to clarify exactly what it is they are after or what documents record that information. That explains why one of the chief themes in the report I did on charges is that freedom of information will work better if it is formally supplemented by schemes of administrative access that will be used firstly by an applicant before they decide it is necessary to exercise their formal legal rights under the FOI act. I will just see if James Popple has any other lists of particular problems with the act.

Dr Popple : The only thing I would add to Professor McMillan's answer is around the issue of charges. As he says, those have been dealt with in the recently released charges review, but there is also the systemic issue about the exercise of the discretion that agencies and ministers have to reduce or waive charges. That is an important thing. It is important that it is in the act. But the way it works is that frequently we need to do an IC review, as it is called in the act, which is a merits review of decisions that are really preparatory decisions about whether or not someone should pay or how much, even before you get to the substantive question of whether or not the documents can be released or whether they can only be released after having been edited. So a disproportionate amount of our time is spent dealing with issues that are important but still do not go to the substantive question about whether or not the documents should be released. That is something I think we will be taking up in the context of the review later this year that Professor McMillan referred to.

Senator RHIANNON: You said that most of the problems are of a technical nature and not structural. Should I conclude from that that you do not think the legislation itself has to change but more the management of some aspects? Is that a fair summary?

Prof. McMillan : Certainly I do see the need for legislative amendment of some provisions. I have made recommendations to that effect in the charges report. For example, one recommendation is that the provision that deals with waiver of fees on public interest grounds could be better framed. But the essential structure of the act is good—that a person can make a request and an agency has a legal obligation to assist the person, to decide within a certain time and can only withhold if the document falls within one of a number of exemptions, and there are rights of appeal internally to my office and then the Administrative Appeals Tribunal and there are also disclosure obligations. I think it is a good act and that it embeds the legal right of access quite well.

Senator RHIANNON: It looks like at this stage the only amendment would possibly be around charges, but that could change.

Prof. McMillan : That would be my recommendation. But the review of the act later in the year will be public. There are other limitations in the act that I am sure will be taken up. For example, the act does not apply to the security intelligence agencies. I know that there are some who feel it should. That will be a live issue. The US FOI Act does apply to the CIA. That is a major issue, obviously. I am sure it will come up.

Senator RHIANNON: Have you got a view on that one?

Prof. McMillan : No, I do not have a view on that at this stage, except that to the extent that I have contact with the security intelligence agencies I would say, 'It is best that you develop practices that model FOI procedures.'

Senator RHIANNON: That will be interesting to explore. I just want to finish up on the KPIs. It has been raised with us that they have been quite modest. 'Unambitious' was one word given to me. I understand that 80 per cent of the reviews are to be completed in six months and 80 per cent of FOI and privacy complaints are to be finalised within 12 months. Would you describe them as unambitious?

Prof. McMillan : In terms of the present performance of the office, those are ambitious targets. For example, in relation to IC reviews, we have at the moment around 200 that are beyond the 150-day mark for reasons that I addressed earlier. So a target of doing 80 per cent within six months is ambitious and will give us great satisfaction if we do that. In the following year, it may be appropriate then to have a much tighter target. But, again, everybody wants these processes to go quicker, but the reality is that they almost inevitably take longer than everybody involved in the process would like. You get an application from a person, who takes a few days or a week to clarify it, and then you send it to an agency and get their comments and before you know it two or three months can have passed. If there is a disagreement, two or three months can zip before your eyes. I think they are realistic targets at the moment, and the real challenge for us is to meet them by the next budget round.

Senator RHIANNON: So the challenge is to meet them within the budget—is that what you said?

Prof. McMillan : These KPIs are defined in the budget papers, so I am putting it in the terms that the challenge for us is to meet those targets by the time the next round of budget papers is prepared. But yes, you are right: budget is relevant in another sense; we have to meet them within a tight budget as well.

Senator RHIANNON: That is what I wanted to understand. Did you mean by that that if there were more resources those percentages could be different?

Prof. McMillan : We are realistic, looking at all the government announcements and the firm commitment to efficiency dividends and to reducing the deficit, that there will be no extra money in this budget. But, as I foreshadowed, we have a number of projects underway in-house to try to tackle the backlog and to develop different ways of doing our work. If those projects do not achieve these targets then certainly we will have something to say to this committee, or elsewhere, about our budget level.

CHAIR: Thank you, Professor McMillan. The committee has no more questions for you. Dr Popple and your team, good to see you, and thanks for your time this afternoon and this evening.

Prof. McMillan : Thank you very much.

Dr Popple : Thank you.

[20:11]

CHAIR: We will now go back to the Attorney-General's Department, outcome 1, group 1.

Senator HUMPHRIES: Mr Wilkins, you will be shocked and surprised that I am going to ask you about efficiency dividends and job losses in the department. You provided, I think, some answers on notice after last estimates with respect to the effect of increasing the efficiency dividend to four per cent on your staffing establishment. Can you expand on where those plans stand at the moment with respect to possible job losses in the department?

Mr Wilkins : I might get Elizabeth Kelly to take you through the 2.5 per cent strategy. That might be the easiest way to do it, I think.

Senator HUMPHRIES: Sure. And there may be further decisions in the budget with respect to reshaping the department or other things that have an impact on job numbers. If it is possible to separate—

Mr Wilkins : I think it is fairly discrete. It is really about the dividend and its impact. I will get Elizabeth to take you through it.

Ms E Kelly : The department is currently commencing a business planning process, with the budget now being settled. It will be the task of that process to generate how we will structure our work and deliver our work for the next year. How we will structure our workforce is part of that process. Approaching the issue of the efficiency dividend and of living within our budget over the next year, we started by looking at our supplier expenses. We are making significant reductions in a number of areas of our supplier expenses, particularly training, meetings and venue hire costs, the use of consultants, some reductions in domestic and overseas travel, office expenses, reductions in contractor use, printing and publication costs, and also some reductions in our legal expenses. Almost half of the additional efficiency dividend will be achieved by reductions in supplier expenditure. The remainder will be achieved by a reduction in staff numbers which is largely to be achieved through a combination of natural attrition, the discontinuance of non-ongoing contracts and a voluntary redundancy program which is currently underway.

Senator HUMPHRIES: What is your savings target brought about by the efficiency dividend?

Ms E Kelly : Approximately five million.

Senator HUMPHRIES: Is that just the extra 2½ per cent or is that the total of the four per cent?

Ms E Kelly : That is the additional 2½ per cent.

Senator HUMPHRIES: Okay, five million. You have given me answers on notice as to what the out year effects of that are, so I do not need to go back through that. You say that half can be achieved through operational changes and half through a reduction in the size of the workforce. Of those savings in the way that the department does business, you mentioned legal expenses—does the department obtain legal advice externally?

Ms E Kelly : The department obtains a significant amount of external legal advice, primarily from the Australian Government Solicitor but also from the other firm with whom we have arrangements, namely, Blake Dawson, which is now called Ashurst. The total expenditure on legal expenses is over $10 million and up towards $11 million. We can get you the exact figure.

Senator HUMPHRIES: Are some of the legal services that the department requires provided by in-house lawyers to a greater extent than might be the case where the department does not consist largely of lawyers?

Ms E Kelly : Yes, a significant number of the department's staff are legally qualified and so do provide advice. We also have recently established an office of corporate counsel to provide advice, in the same way that other agencies have an internal, general counsel capability specific to them. We have established that recently and so advice is provided there. Of course, we have other specialist areas of advice within the department: the constitutional policy unit provides constitutional law advice, and the Office of International Law provides international law advice.

Senator HUMPHRIES: What are the sorts of reasons that you would go out to the Australian Government Solicitor or to one of the lawyers on your panel?

Ms E Kelly : If we do not feel we have the capability to deliver the advice in the time frames or with the necessary degree of expertise; also, some areas of advice are tied work under the Legal Services Directions and so we are required to go to the Australian Government Solicitor for those services.

Senator HUMPHRIES: You mentioned there would be cuts to training. What sort of training programs will be cut?

Ms E Kelly : We do not anticipate cutting the number of programs; we are really looking at the way in which programs are delivered. Currently we have a heavy emphasis on face-to-face delivery of programs. We are looking towards e-learning solutions and leveraging off existing e-learning packages that have been developed across government. That is the focus. So we do not anticipate a reduction in program numbers, in fact we would hope that program numbers would increase, but we are looking at changing the way we deliver the programs.

Senator HUMPHRIES: You mentioned that the other half, approximately, of this saving would be made by reducing numbers of people employed. Is that about $2½ million?

Ms E Kelly : That is correct.

Senator HUMPHRIES: What does that equate to in terms of bodies?

Ms E Kelly : It depends very much upon the constitution of and the particular levels of staff involved. There is not an exact figure, because it depends on the number, type and salary level of staff involved.

Senator HUMPHRIES: You are confident that the turnover of staff will be sufficiently great to allow you to only shed staff by voluntary redundancies or by not continuing with contracts, not through involuntary redundancies?

Ms E Kelly : We are certainly very comfortable with that and confident that we will achieve that target by those measures. It will be a combination of non-ongoing contracts, the voluntary redundancy campaign and natural attrition.

Senator HUMPHRIES: Has the size of the SES establishment in the department changed in the last 12 months?

Ms E Kelly : I can get you the exact figures. I do not think it has in a significant way. Certainly, as all other Australian government agencies, we operate under the SES cap and we continue to be under the SES cap, so we certainly have not extended beyond that.

Senator HUMPHRIES: Just to be clear on what you said earlier, Mr Wilkins: the main savings force at work on the department at the moment comes about through the efficiency dividend; there are not other decisions made in the budget that effectively depress the size of the department's budget?

Mr Wilkins : No, there are not. There are other budget savings in the offsets where money is being moved from one program to another existing program or to a new one or something like that. The main budget impact in terms of impact on staffing would be in that area. There are other things. For example, under the Skehill recommendations, one of the things that is happening is that the office of legal drafting is being transferred to the Office of Parliamentary Counsel, so those synergies can operate more efficiently. So there will be a large number of people leaving the department and going into the Office of Parliamentary Counsel, but that is a zero-sum game.

Senator HUMPHRIES: I think I will put my other questions on notice.

Ms E Kelly : Just to complete Mr Wilkins's answer, there are also a number of NPPs terminating which are not in the budget paper because they were not a decision in this budget, but we can provide those to you. They are programs that terminate, so the work has come to an end, so there are staff associated with those. They will be managed in the same way as the other reductions.

Senator HUMPHRIES: You will give me a list of those, will you?

Ms E Kelly : Yes.

Senator HUMPHRIES: Thank you.

CHAIR: Are there any other group 1 questions?

Senator BRANDIS: I think my questions are group 1. I want to ask some questions about legal aid funding.

CHAIR: That is group 2. Thanks, group 1; we have finished with you.

Senator BRANDIS: I am sorry; I am not excusing group 1.

CHAIR: Sorry, you have more? Legal aid is group 2; that is all.

Senator BRANDIS: I have legal aid funding questions but I have other questions as well. I am not excusing anyone from the department, in other words, for the time being.

CHAIR: We are not particularly coming back to group 1 tonight; that is all. We are moving on to group 2 and then, if we have time, we are going on to Emergency Management Australia.

Senator BRANDIS: Before we excuse group 1, let me just clarify. I want to ask some questions about discussions between the Australian government and the Indonesian government for the repatriation to Indonesia of certain crew members of illegal entry vessels, which was reported in the media this morning. I want to ask, as I have said, some questions about legal aid funding. I want to ask some questions about the national contract law.

CHAIR: Mr Wilkins, you might be able to direct us as to which outcome they are.

Mr Wilkins : National contract law is in group 2. The Indonesian matter is in group 3. What was the other matter?

CHAIR: Legal aid.

Mr Wilkins : Legal aid is in group 2.

Senator BRANDIS: Of the topics I identified, I am not going to be met with a response, 'You should have asked that of group 1'?

Mr Wilkins : Provided that is what the questions are about.

Senator BRANDIS: We have been doing this for a long time, Mr Wilkins.

Mr Wilkins : I am sure we will manage.

Senator BRANDIS: I will excuse group 1 on the understanding that they will be available tomorrow, if needed.

CHAIR: Senator Brandis, you are saying that you do not need group 1.

Senator BRANDIS: Not tonight and unless otherwise indicated tomorrow.

CHAIR: I am the chair, and this estimates consideration has finished with group 1—

Senator BRANDIS: Not necessarily.

CHAIR: That is what the committee has decided. If you want to have a committee meeting I am happy to do that.

Senator BRANDIS: If you want to keep the whole of the department before the estimates committee until tomorrow evening.

CHAIR: I am not intending to do that either. This committee deliberates for many days and a couple of weeks in setting this program. It is on the understanding that when we finish each agency or each group—once everyone has had their fair time asking questions—that group can then leave and any further questions are put on notice. We have too much to do. Tomorrow, we have groups 2 and 3 to do and all of the agencies.

Senator BRANDIS: As your senior Labor Party colleague Senator John Faulkner always says, 'The estimates are an opposition forum.'

CHAIR: That is right. And I am not stopping you from putting any further questions for group 1 on notice. But, as chair of this committee, and on behalf of the committee, we have now finished with group 1.

Senator BRANDIS: I have not told you that I am finished with group 1.

Senator Pratt interjecting

CHAIR: Senator Pratt, that is not helpful. Senator Brandis, if you have questions for group 1 let us have them now, before the officers go.

Senator BRANDIS: I have asked Mr Wilkins to give me a reassurance that none of the topics I have identified to you will come under group 1.

Mr Wilkins : I am sure we can handle the topics you have identified.

Senator BRANDIS: Then, I do not have any questions at the moment for group 1. Are you sure that national contract law is not a group 1 issue?

Mr Wilkins : I am sure it is a group 2 issue.

CHAIR: Thank you for your evidence, group 1. I welcome officers from group 2.

Senator WRIGHT: I am going to start by asking questions about the consolidation of anti-discrimination laws proposal. During additional estimates, in February this year, I asked a number of questions relating to the advancement of the consolidation of federal anti-discrimination laws. I would like to revisit those questions to gauge the progress of this important law reform process. Can you outline all consultation processes that have been undertaken to date with respect to developing an exposure draft of the new consolidated anti-discrimination legislation?

Mr Wilkins : I will ask Greg Manning or Matt Hall to answer these questions.

Mr Manning : Could I just clarify: are you asking for consultations since the last estimates or for the period before the last estimates, as well?

Senator WRIGHT: All consultation.

Mr Manning : We have had one-on-one meetings with a range of business organisations, religious bodies, human rights advocates, academics, legal practitioners and education bodies, as well as the Human Rights Commission, about the issues raised in the consultation paper. I do not have a list of all of those bodies here, but we could provide them.

Senator WRIGHT: I would appreciate that.

Mr Manning : We also ran a number of forums in Sydney, Canberra and, I think, in Melbourne, for which there was an open invitation for interested bodies to attend. From memory, 30 or so organisations were represented at the Canberra and Sydney ones. The organisations were from across the spectrum I mentioned in the earlier part of my answer: business groups through to human rights bodies, education groups and religious bodies. They were very useful in terms of having a dialog between the different views of those organisations.

I think that covers the full range of it. Although, we have met with a number of those bodies on a couple of occasions, as they have asked for meetings, for example. We have obviously made great use of the Human Rights Commission in terms of both getting their views about the operation of the current system and also views about how the law could usefully be reformed, in their opinion. Mr Hall may wish to add something.

Mr Hall : I can confirm everything that Mr Manning has said. I would also point out that the discussion paper released in September last year closed for submissions on 1 February. The department received something in the order of around 270 submissions, many of which were very substantive ones and many being from a number of organisations contributing to the one submission. So that was a significant body of input. That has fed significantly into the consultation process. So, having considered all of those submissions, we are in the phase at the moment of developing detailed proposals for an exposure draft for the bill for the consolidated law.

Senator WRIGHT: Mr Manning, you mentioned that you had a number of forums, in Sydney, Canberra and, you thought, in Melbourne. Could you clarify that on notice.

Mr Manning : Definitely in Melbourne. Mr Hall hosted that one.

Mr Hall : That is right. The Canberra forum was held on 10 November 2011, the Sydney forum was held on 18 November 2011 and the Melbourne forum was held on 24 November 2011.

Senator WRIGHT: Is it possible to know who attended those forums?

Mr Hall : We can provide a list of the attendees.

Senator WRIGHT: That would be good. You pre-empted my question on how many submissions were received to the discussion paper by saying that it was in the order of 270. Could you clarify the number.

Mr Hall : I will.

Senator WRIGHT: Previously it has been indicated that the legislation was intended to be introduced into parliament this year. Could you tell me when the exposure draft of the new consolidated anti-discrimination legislation will be released for consultation? What is the current expectation with that?

Mr Hall : The expectation is still that the exposure draft legislation will be released this year. At this stage my estimation is that it will be the middle of the second half of the year, but that does not take into account the significant amount of government consideration that will need to happen before it can be released. So that is just a rough estimate.

Senator WRIGHT: On my calculation that is about September.

Mr Hall : That is right, provided that the government approves the release of the exposure draft bill.

Senator WRIGHT: What is the timetable, following release of the exposure draft, to ensure that the legislation is introduced by the end of 2012? Is that still on track to happen?

Mr Hall : It is still on track to happen, providing all the usual aspects of that process can be completed in that time.

Senator WRIGHT: So what would be the timetable after the release of the exposure draft?

Mr Hall : It is difficult to predict that precisely at this point. Assuming that an exposure draft can be settled during the second half of the year, there would obviously need to be a period of consultation on that. That period has not been decided yet. Following that, you go into the state of having it introduced into the parliament. But I cannot really be more precise than that, I am afraid.

Senator WRIGHT: Given that there were estimates, or proposals, that the legislation would be introduced this year, has there been anything unexpected that has actually pushed those timelines out?

Mr Hall : The timelines have been pushed out—not by a significant amount, I would say. The one aspect that has contributed to that, to the extent that it has happened, has really been the large number of submissions and the large amount of interest in the project. I think it is fair to say that, in particular the number of submissions and the substantive nature of those—the number of organisations, for example, that have participated in the consultations, has been very significant. The government were certainly keen to give sufficient time for all the organisations that wanted to participate to be able to make their views known. It has been quite a process of making sure all of those have been gone through.

Senator WRIGHT: Thank you. And you did foreshadow that there would be further consultation once the exposure draft is released.

Mr Hall : That is correct.

Senator WRIGHT: What are the plans for that consultation at this stage?

Mr Hall : That has not been decided yet.

Senator WRIGHT: All right, thank you for that.

Mr Manning : Senator, just before we go on, can I add a little to my earlier answer about consultation? I do not think I mentioned the fact that we have also given state and territory governments the opportunity to comment and that the matter was discussed by ministers at the Standing Council on Law and Justice at their meeting in April 2012.

Senator WRIGHT: Good, thank you for that. My next questions are around the review of the National Partnership Agreement on Legal Assistance Services and Legal Aid, or CLC funding generally. Under the National Partnership Agreement on Legal Assistance Services a review must be completed by 30 June 2013, and the Allen Consulting Group has recently been appointed to conduct this review. As part of the review process, what engagement and consultation with stakeholders will take place?

Ms Todd : The review is very much dependent on a great deal of consultation with stakeholders, in particular providers of legal assistance services. There will be about three rounds of consultations across Australia. But the review also has a governance structure which provides for an advisory committee made up of legal assistance providers, a representative from the Law Council of Australia, a representative from Family Relationships centres and a representative from pro bono.

Senator WRIGHT: Thank you. Is there a planned timeframe for the consultations under this review? And will the Allen Consulting Group provide its report to government before 30 June 2013?

Ms Todd : There is a consultation timetable. It has not all been settled, because Allen only started on 1 May, so we are expecting that to be sorted out probably by the end of May. But we do know that there is a first round of consultations which will take place across Australia, in all capital cities and Alice Springs, starting about 4 June, where they will speak to major service providers and key stakeholders across Australia.

Senator WRIGHT: And will the Allen Consulting Group provide its report to government before 30 June 2013?

Ms Todd : The report is due on 30 June 2013.

Senator WRIGHT: How are the states and territories contributing to the review process?

Ms Todd : The states and territories are contributing about $167,000 in funding. They are also on the steering committee, which is one of the three governance structures around the review. There are state reps on that steering committee, so it is really a Commonwealth-state review.

Senator WRIGHT: What are the terms of reference of the review? And, given the underfunding of community legal centres, is the review focused on decreasing funding, or is it looking at how to better support and resource Legal Aid commissions and community legal centres?

Ms Todd : The terms of reference of the review cover two parts. Part A is a review of Legal Aid commissions only, because Legal Aid commissions are the only bodies funded under the National Partnership Agreement on Legal Assistance Services. So they will be assessed against the performance indicators and benchmarks in the NPA. Part B of the agreement is a broader evaluation, and it is an evaluation of the efficiency, effectiveness and quality of Commonwealth legal assistance services generally. They are community legal centres, Legal Aid commissions, Aboriginal and Torres Strait Islander legal services and the family violence prevention legal services. It is an evaluation of their efficiency, effectiveness and quality of service delivery and whether it is being delivered collaboratively—which is a requirement of the NPA—in association with other service providers.

The impetus for the review was not any sort of funding issue as such. It is a review that was required to be undertaken by the NPA. There is a provision in the NPA that says there must be a review and that it must be completed independently of the state, territory and Commonwealth governments by 30 June. It is very much about looking at efficiency and effectiveness of the current service delivery. We are anticipating that the findings of the review will be just as helpful to government policy decision makers as they will be to CLCs, ATSILS and Legal Aid commissions, in that they will highlight ways of them providing services more efficiently.

Senator WRIGHT: Thank you. With respect to the terms 'efficiency', 'effectiveness' and 'quality'—I am pretty clear on what efficiency and quality might mean; 'effectiveness', I am not so sure of. To what extent do the terms of reference refer to assessing the degree of unmet need that is actually out there that community legal services and other legal assistance providers are not able to meet at this stage?

Ms Todd : The review will look at one of the objectives of the NPA—to make sure that legal assistance services are targeted at the most disadvantaged. So that will be one of the things that will be looked at: the extent to which those services are going where they are supposed to be going in terms of the funding. As to unmet need, we are relying on a report that has been in the pipeline for a while, commissioned by National Legal Aid, on unmet need in Australia. That report is due to be released—it is being done by the Law and Justice Foundation of New South Wales—around July or August. So we specifically excised from the terms of the review any consideration of unmet need as such, because we will get that information, we are hoping, from the Law and Justice Foundation report.

Senator WRIGHT: I see. So, essentially, if I am understanding correctly, the terms of reference are really about a status quo in terms of the funding that is available and the degree to which then the legal service providers are working within that regime with efficiency, effectiveness and quality?

Ms Todd : Yes. I do not know what government will do by way of funding in future years, but it is very much about looking at how the money is being spent now, if there are duplications and overlaps, and making sure that very precious dollar is going to the most needy and it is going into quality services.

Senator WRIGHT: Yes, I understand that. I suppose the question that then raises for me is: if the status quo, the constraints within which the assessment is being done, requires that the services go to the most disadvantaged, and perhaps shuffle down, there is still potentially going to be quite a band of disadvantaged people who are not the most disadvantaged who might then not be receiving the legal services that they previously were. So to what extent may the review be able to assess that, do you think, within the terms of reference?

Mr Wilkins : Senator, if I could intervene there. It is not really meant to be a funding review in that sense. With the last NPA we tried to take Legal Aid in a different direction in terms of early intervention and a greater emphasis on people getting quality legal advice at an earlier point in time to try and avoid a situation where people end up in the courts. This is really trying to take that to the next level. There was a degree of uptake and enthusiasm by the state Legal Aid authorities, and by my counterparts in the states and territories also, to look at this and see how much further we could take it. So it is really saying that we are all stretched in terms of the money available; how can we make that work more? How can we get more leverage out of that funding, and probably better outcomes for the people who are getting Legal Aid assistance as well. So that is really a lot of what we are expecting to get out of this inquiry. It is not meant to be looking at funding per se, but I guess in terms of unmet need we would like to see to what extent within the current envelope that need could be better accommodated or better met, maybe through institutional redesign or the way in which the funding is allocated to the types of services that are provided and the timeliness with which they are provided and stuff like that. But it is not a vehicle for a budget bid; let us put it that way.

Senator WRIGHT: The next question is sort of around that question as well: will the review consider alternative and complementary funding options to improve the ability of the legal system to meet the needs of a wide range of participants? I will give you some examples. For example, in South Australia we have a litigation assistance fund, which began in 1992, and that fund assists companies and individuals with the prosecution of civil cases where clients are unable to pay legal expenses. The Australia Institute has also suggested that a legal expenses contribution scheme, based on an income-contingent interest-free loan scheme, could be introduced as a complementary funding model. Is the review going to be considering these types of alternative and complementary funding options that facilitate improved access to justice in the absence of adequate funding otherwise?

Ms Todd : Not really. The review will be looking at the current funding agreements and arrangements and funding formulas, especially under the NPA itself, and looking at whether there are some suggestions that can be made around those. It will be looking at market failure—the extent to which legal assistance services are able to meet the market failure caused by private practice not being able to deliver all of these legal assistance services. Part of that may well be looking at whether there are some parts of legal assistance that should or could be provided by a different service provider. But it is not going to, I do not think, come up with any recommendations as such for alternative means of funding.

Mr Duggan : By way of example, perhaps, we will be particularly keen to ensure that, in our rural and remote areas, services are operating in a complementary sense, so you do not necessarily send three or four lawyers to a remote court; there would be a sharing arrangement between them. That happens in many cases now, but that could well be improved. We are not talking about collapsing services—there is no hidden agenda from the government here that there should be services merged with others—but we are looking at making sure that, to the maximum extent possible, services are complementary. That already happens in some places. We think there is possible room for it to happen elsewhere and we are hoping the review will help us with that.

Senator WRIGHT: I have a few more questions about community legal centres and their ability to meet legal obligations under the recent equal pay decision. How does the government intend to support community legal centres to respond to and meet their legal obligations to pay salary increases following the equal pay decision? There is some concern that this will actually put great pressure on community legal centres in terms of their salary costs.

Mr Duggan : The Prime Minister has announced that the Commonwealth will meet its obligations in relation to the SACS award. The Commonwealth has set aside $2 billion overall, of which we are a very small part in that regard. The Commonwealth has made a very strong commitment that we will meet our obligations in relation to that. Indeed, the Prime Minister welcomed that decision. We are aware we are part of a broader government initiative to ensure that that funding will be available, and that is the commitment the Prime Minister has given us.

Senator WRIGHT: Will extra funding be provided to community legal centres to ensure that they can meet their legal obligations to employees without affecting the delivery of legal assistance services? Is there an assurance that there will be sufficient top-up for them to be able to meet that without decreasing the services they currently offer?

Mr Duggan : This money will be additional. That is right.

Senator WRIGHT: Another aspect of funding issues for CLCs is with the proposed NDIS and the impact of that, people with disabilities will ultimately need access to advice and advocacy support to ensure that they get their proper entitlements under the NDIS. As part of the government funding of that, will this be reflected in funding for community legal centres and legal aid commissions to be able to meet the advice requirements which will potentially increase?

Mr Duggan : No final decision has been made on that issue. We will obviously be part of the broader government consideration of development of the NDIS. I can assure you we regularly raise with our colleagues the need to consider legal aid requirements whenever major policy decisions of this sort are being made but there has been no decision by government in that regard.

Senator WRIGHT: I have a final set of questions in relation to the court fee increases that were announced in the budget. According to the budget, an increase in court fees will result in additional revenue of approximately $77 million over the next four years. The government has said that court fees will be reformed to better reflect the capacity of different types of litigants to pay. Exactly which litigants will incur an increase in court fees?

Mr Fredericks : You are quite right, Senator. The Attorney-General has stated on a number of occasions that the work that we do in finalising the structure of the fee package will focus in particular on capacity to pay as one of the defining characteristics of the fee increase. In particular in that regard the government has in mind fees that are currently paid by corporations and conceivably larger corporations. I should say, however, that that work is in progress at the moment. It involves quite extensive consultations with the courts and so some of those issues will need to be worked through over time.

Senator WRIGHT: It seems to me from what you have said there that it is still being thought through and the basis on which litigants will have to pay increased court fees has not been determined yet. Is that what you are saying?

Mr Fredericks : What I am saying is that the nature of the fee changes has not been finally determined, is still under consideration in government, is still a matter for consultation with the courts, but a guiding principle will be that capacity to pay will be a relevant consideration and in particular the example of the capacity of corporations to pay has already been publicly indicated by the Attorney-General.

Senator WRIGHT: I hear you say capacity to pay will be an important consideration. Can you say what protections will be in place to ensure that litigants experiencing socio-economic disadvantage will not be the subject of increased court fees? Is that the just the assurance that capacity to pay is going to be a determining factor and presumably then it will not affect people who do not have a capacity to pay because they are socio-economically disadvantaged?

Mr Fredericks : I apologise. I do not think I can add to what I have said. I have said what is publicly on the record from the Attorney-General and further work needs to be done.

Mr Wilkins : The only thing I would add to that that might be helpful is that we have done some fee increases in the past with the courts as well and the general philosophy, I guess, around these fee increases is to move towards a cost recovery system. But the underlying concept of that is that it is probably better to subsidise litigants—in other words, to your point, people who do not have the capacity to pay—than to subsidise institutions as such. There is obviously a degree of public good in terms of having courts and obviously they should be subsidised, but there are also people who use the courts and make considerable private profit as a result of successful litigation or whatever. Under those circumstances, you would think that they should make a significant contribution to the costs of using that institution. The general philosophy, as Mr Fredericks said, is capacity to pay, but it also looks at funding people rather than institutions, if I can put it that way.

Senator WRIGHT: A question comes to mind. The current situation is that the fees will be determined upfront. There is no suggestion that they will be contingent on successful use of the courts?

Mr Wilkins : I do not think that is under consideration, unless you can give me some angle. That is an interesting one.

Senator WRIGHT: I just wanted to clarify that; I do not necessarily want to put ideas into your heads. Has there been an evaluation of court fees leading up to this decision or consultation with registrars, judges, lawyers, barristers and so on?

Mr Smrdel : The process we are undertaking is a very full discussion with the courts. We are very interested in the view of the courts on the sorts of fee increases that might be available. We are undertaking a very comprehensive discussion with the courts and also getting a good assessment of the sorts of data they have so that we can attach a valuation to the court activities that give rise to court fees.

Senator WRIGHT: Thank you very much for your time. I do not have any other questions.

Senator BRANDIS: I wanted to start asking about the arrangements for the release of Schapelle Corby by the Indonesian authorities. Can you tell me in the first place whether the Attorney-General's Department or its officers have had any dealings of any kind with the Indonesian authorities in relation to Schapelle Corby's petition for clemency?

Mr Wilkins : I do not believe so. I am just trying to think back. I do not believe so, but I will double-check. I have been there a few times and spoken to my counterparts. I have not raised this issue directly, but I would imagine that is being done through the DFAT officers, if it is being done.

Senator BRANDIS: Yes. I would have expected in the first instance that obviously it would have been through our embassy in Jakarta.

Mr Wilkins : I have had some general discussions about prisoner transfer agreements.

Senator BRANDIS: That is the area I want to explore. Mr Sheehan, do you know anything about this?

Mr Sheehan : I have no knowledge of or involvement in any clemency requests from the department.

Senator BRANDIS: Let me put the question as narrowly as I can. Has any officer of the department been in discussions with any official of the Indonesian government in relation to the clemency petition?

Mr Wilkins : I do not believe so.

Senator BRANDIS: But you said you will check that for me?

Mr Wilkins : I will double-check, but I am almost 100 per cent sure.

Senator BRANDIS: Have officers of the department been in discussion with officials of the Indonesian government in relation to the release by Australian authorities to Indonesia of Indonesian nationals held in Australian prisons who are minors?

Mr Wilkins : The answer to that is yes.

Senator BRANDIS: I would like an account of those discussions. Which officers have been involved in those discussions with the Indonesian authorities, please?

Mr Wilkins : The officers concerned are not here. They answered these questions earlier. We will have to get the person back, I think. I cannot give you the details off the top of my head.

Senator BRANDIS: I do not mind if the person concerned returns at nine o'clock tomorrow morning, if that is more convenient to them.

Mr Wilkins : That would be more convenient, under the circumstances.

Senator BRANDIS: As long as there is not going to be any monkeying around with the program.

Mr Wilkins : Maybe you could foreshadow what you want to ask.

Senator BRANDIS: Yes, I will. I want to explore the reports in the Australian media this morning which have suggested a linkage between the release by Australian authorities of Indonesian minors and the success of Schapelle Corby's clemency petition. I heard Senator Bob Carr's press conference this morning, in which he denied that there was any such link. My attention has also been drawn to a statement by the relevant Indonesian minister which seems to me to contradict what Senator Carr said today. So that is the issue that I want to explore here.

Mr Wilkins : I think the Attorney-General also denied the linkage.

Senator BRANDIS: Perhaps she did, but I have not seen her press conference. Nevertheless, there have been statements, which on their face are contradictory, coming from the Indonesian government and the Australian government, and that is the area I want to explore.

Mr Wilkins : I could tell you now that I do not think there is any such linkage, and there is no evidence that I know of in this department that would suggest any such linkage.

Senator BRANDIS: I think it is probably best for me to explore that issue directly with the officer who has knowledge of the discussions concerning the release of Indonesian minors.

CHAIR: Mr Wilkins, perhaps you could just clarify this for us. Surely as the secretary of the department you would be aware of what is going on in terms of discussions with Indonesia.

Mr Wilkins : I am certainly aware at that level. I have had discussions myself with the Indonesian authorities. I have carried out the discussions in terms of prisoner transfer. So there have been generic discussions around prisoner transfer that have, I think, been going on for a decade or more. In fact, an agreement was almost signed under the previous government, and then for some reason or other it did not get signed. It then came unravelled a bit, and there has been to-ing and fro-ing. That is a generic arrangement that has been around for quite some time, not related to minors in particular. Latterly we have had, mainly as a result of some of the issues arising from people-smuggling and the crew issues, pressure from their representatives, the Australian Human Rights Commission inquiries and various contentions about whether these are minors. Also, the authorities from Indonesia made representations. We instituted a review of people who were allegedly minors in detention, and the department has been presiding over that.

Senator BRANDIS: That is useful context, but I think it is more useful for my purposes—

Mr Wilkins : All I was going to say is that the officer who is not here is the officer who is doing this inquiry into the minors, which the Attorney announced.

Senator BRANDIS: Is he also the officer who had dealings with the Indonesian authorities?

Mr Wilkins : No. I am the person who has had dealings with the Indonesian authorities. I am just saying that it is only on that generic issue.

Mr Sheehan : There has been contact in respect of the review of those where age was raised at some point in the prosecution, but that contact relates only to—

Senator BRANDIS: Sorry—what prosecution?

Mr Sheehan : In relation to the review that is occurring of the 28 cases—the one requested by the Attorney-General—there has been contact with the Indonesian embassy on that matter in that they have provided details of some individuals. There has been no contact in any respect in respect of Ms Corby, and there is nothing in respect of what is occurring in that review that has any relevance to Ms Corby. It is purely about those people who are being reviewed who have been prosecuted for people-smuggling offences.

Senator BRANDIS: I am not particularly concerned about the review. I am concerned only about dealings with the Indonesian government. Mr Sheehan, you spoke about contact with the embassy. By that you mean the Indonesian embassy here in Canberra, I assume.

Mr Sheehan : Yes.

Senator BRANDIS: Has there also to your knowledge, Mr Wilkins or Mr Sheehan, been contact in Indonesia between the Australian embassy in Jakarta and the Indonesian government?

Mr Wilkins : On what topic?

Senator BRANDIS: On the topic of prisoner exchange and the release of in particular Indonesian minors held in Australian prisons.

Mr Wilkins : There have been discussions in the same way as I had discussions on the more general prisoner transfer agreement that has been floating around for a decade or more. I do not know of anything other than that. They were with me when I had discussions over there.

Senator BRANDIS: All right. What I would like to know in relation both to the discussions in Jakarta and the discussions in Canberra is who were the Australian officials who conducted the discussions, to the extent to which you are able to say, to the extent to which they involved officers of your department.

Mr Wilkins : Myself—

Senator BRANDIS: Who else?

Mr Wilkins : Probably the head of the international crime cooperation division.

Senator BRANDIS: Who is that?

Mr Wilkins : At the time it was—who would it have been on the last occasion?

Mr Sheehan : Senator Brandis, is the question in relation to recent—

Senator BRANDIS: I do not want to cut you off—

CHAIR: Senator Brandis, let Mr Sheehan clarify—

Senator BRANDIS: Just fall silent, Madam Chair.

CHAIR: No, I will not be silent.

Senator BRANDIS: I do not want to cut you off—

CHAIR: Order! That is what it appears you are doing. Mr Sheehan was in the middle of trying to clarify an answer in his train of thought for you. Let him do that and then you can have your rebuttal—

Senator BRANDIS: You may rely on me to direct my questions—

CHAIR: If you can stop interrupting people that would be quite useful and good manners. Mr Sheehan, have you finished what you were saying then?

Senator BRANDIS: What question of mine are you answering?

CHAIR: Mr Sheehan is answering my question because I am the chair and my questions will take precedence.

Mr Sheehan : My question was intended to ascertain whether Senator Brandis was asking about recent contact in respect of those crew who have been returned or earlier contact on more general matters to do with the points that Mr Wilkins was making.

Senator BRANDIS: What I want to know, not in general but by reference to specific meetings or specific communications between the two governments either in Australia or in Indonesia, is the details of each such meeting or communication—probably most usefully, I think, Mr Sheehan, in reverse chronological order, so the most recent first—at which the topic of the release of Indonesian minors in Australian prisons was discussed with the Indonesian government. When I say specific details, I mean the identity of the people who participated in the meetings so far as that is within the knowledge of officers of the Attorney-General's Department, the date and place of the meetings, whether the meetings were minuted or otherwise recorded and, in the event that they were, the production, with appropriate redaction, of the minutes of those meetings. To the extent to which the communications were by way of email, letter, some form of written exchange, copies of that correspondence, again with appropriate redactions, and a brief summary by an officer in a position to tell the committee of what was discussed at each such meeting or covered in each such exchange of correspondence.

Senator Ludwig: We will take that on notice. It is a significant number of questions you have asked. Some of it may include government-to-government, which may be excluded. So we will take the question on notice and see what we can provide to the committee in due course.

Senator BRANDIS: I can understand why you might want to put this off, Senator Ludwig, but—

Senator Ludwig: No, I am not putting it off. You asked for a range of information. In fairness to the Attorney-General's Department, the hour is now 10 past nine. Many questions of such detail are usually taken notice, particularly given the length and breadth of the details that you have requested. It is not unusual. You know that too.

Senator BRANDIS: Please do not confuse specificity with detail. The questions I have asked are in fact very narrow questions. They could be answered by an officer with knowledge of those matters immediately.

Mr Wilkins : I think that—

Senator BRANDIS: If I may finish, please, Mr Wilkins. So all we have to do is make sure that the relevant officers are available to the committee. I am not insisting that be done now; it can be done tomorrow morning.

Mr Wilkins : Do you want us to get all that information together? If you want the information, Senator Ludwig is quite right. It will take time. People will have to work probably from now through until midday tomorrow to get it done.

Senator BRANDIS: Perhaps so.

Mr Wilkins : I think they should be allowed to go to bed, actually.

CHAIR: Maybe some notice of it might have been useful, Senator Brandis.

Senator Ludwig: As I said, there is a range of information that has been requested.

Mr Wilkins : I can get people to come back here.

Senator Ludwig: The Attorney-General's Department can have a look at what they can usefully provide tomorrow—

Senator BRANDIS: Good.

Senator Ludwig: but the broad issues that have been asked for can and should be put on notice.

Senator BRANDIS: You see, Senator Ludwig, this is the point. I am not asking for broad issues.

CHAIR: Senator Brandis, perhaps the suggestion Mr Wilkins made—

Senator BRANDIS: I have, at the request of the chair, in fact—

Senator Ludwig: It was very broad. But we can disagree.

Senator BRANDIS: asked a very specific question so as to narrow rather than broaden the range of the inquiry. That should make it easier.

CHAIR: Can I make a suggestion here?

Senator Ludwig: It was more than one question. There was a range of information that was requested. I think it is unreasonable at this hour—

Senator BRANDIS: I just want details of the meetings.

Senator Ludwig: It is certainly reasonable for the department to take it on notice.

CHAIR: I am going to make a suggestion as the chair here. I hear what you are saying, Mr Wilkins, about the body of work that needs to be done, and the people are obviously not here tonight and might not even be aware we are having this discussion. So can I suggest that we set aside a time, perhaps tomorrow after the morning tea break, for that officer to be available.

Mr Wilkins : Absolutely.

Senator BRANDIS: That is fine.

Mr Wilkins : In fact, he is going to be here in five minutes. I called him back.

Senator BRANDIS: That is good of you, but I would rather—

Mr Wilkins : Well—

Senator BRANDIS: I am happy to proceed now, but—

CHAIR: We will move on and wait until the officer comes.

Senator BRANDIS: Are you no longer taking the question on notice, Senator Ludwig?

Senator Ludwig: I am happy to allow the officer to arrive.

Senator BRANDIS: If the person who can tell us the answer to the questions is going to be here in five minutes—

Senator Ludwig: Then I am happy to forgo that.

CHAIR: Let's move on with other questions until that person arrives.

Senator BRANDIS: I will move on to a different topic. Mr Wilkins, you may or may not be aware that it was disclosed in this committee yesterday, I think, that there are currently, in relation to irregular boat arrivals, 587 applications for judicial review before the courts—527 pending in the Federal Magistrates Court, 59 in the Federal Court and one matter in the High Court. Does the department provide legal assistance to those applicants? In the 2011-12 year, what was the aggregate cost to the department of providing legal assistance to those applicants?

Mr Duggan : Sorry, would you remind repeating the question?

Senator BRANDIS: I was just saying that, yesterday in this committee, there was evidence that there are currently 587 applications for judicial review before the courts—527 before the Federal Magistrates Court, 59 before the Federal Court and one in the High Court—by irregular boat arrivals, or asylum seekers, to use the generic phrase. I am interested to know what legal assistance by way of legal aid or other support is provided to those applicants by the Attorney-General's Department and what the aggregate cost was of such legal assistance to those applicants in the 2011-12 year.

Ms Todd : Legal assistance for people seeking judicial review is one of the matters that is covered by the funding under the National Partnership Agreement on Legal Assistance Services. Under that agreement, there is a set of Commonwealth priorities that legal aid commissions look at in determining who they give funding to. With people who are asylum seekers seeking judicial review, those decisions come within those Commonwealth priorities. It is up to the legal aid commissions to determine who, of all the people who are applying to them, get assistance and who do not. The answer to your question is: that is part of the existing national partnership agreement funding.

Senator BRANDIS: That is very interesting, but that is not really a response to what I asked you.

Ms Todd : Sorry, Senator.

Mr Duggan : Statistics are not kept on that.

Senator BRANDIS: So the judicial review applications are funded at least in part by the Commonwealth through your department, but, because the money is spent by the legal aid commissions, the department does not know how much of the money that goes to the legal aid commissions is spent on these particular applicants?

Ms Todd : That is right. The reporting under the national partnership agreement does not go down to that level of detail as to which classes of Commonwealth priorities are funded.

Senator BRANDIS: Does that that mean that there is nobody within the Commonwealth government who is in a position to answer my question?

Mr Wilkins : That is right. That is the way those agreements have operated for several decades, as you know. They have been sort of block funding to the state legal aid commissions.

Senator BRANDIS: Yes. So the answer is: there is nobody in the Commonwealth who knows how this Commonwealth money is being spent?

Mr Wilkins : Of course we know how it is being spent. In fact, we are looking at some of the outcomes in terms of global outcomes. That is what the inquiry is all about that we were just talking about a little earlier. We know in those terms. We cannot tell you the specific class of cases that you are seeking, no.

Senator BRANDIS: Mr Wilkins, on 9 May, pursuant to the order of the Senate of 24 June 2008 requiring the recording of all grants and payments made by each department, the Attorney-General provided a schedule of payments. You are familiar with what I am talking about, I assume.

Mr Wilkins : No, I am not.

Senator BRANDIS: You are not familiar with the order of the Senate of 24 June 2008 requiring a list of all grant funding by each department to be lodged with the Senate prior to each estimates round?

Mr Wilkins : No. I probably should be, but I am not.

Senator BRANDIS: I assumed you would be. You can have a look at my copy. There is a covering letter from the Attorney-General and a schedule.

Senator Ludwig: It concerned me for a moment that it might not have been completed and put in.

Senator BRANDIS: It was. It was received by the Table Office on 9 May.

Mr Wilkins : Yes, okay; I've got the copy.

Senator BRANDIS: Between pages 2 and 7 of the schedule—and I have not counted them, but there seem to be about 40 items per page on the table—there is a series of payments, each of which, against the item 'identity of payee', bears the words 'name and address withheld for privacy reasons'.

Mr Wilkins : Yes, I can see that.

Senator BRANDIS: Against the item, 'purpose of the payment' there is assistance towards legal costs and expenses, or words to that effect. I would like an officer who is familiar with that schedule to respond to these questions, please. Is that you, Mr Duggan?

Mr Duggan : We will deal with them together, if that is all right—myself and Ms Todd.

Senator BRANDIS: That is fine.

Mr Duggan : The reason it is done like that is to avoid identifying individual litigants.

Senator BRANDIS: Well, that is what it says. I am not sure why it is that if an individual litigant is the beneficiary of taxpayers' money through your department their name should be a secret, frankly. But we will not have that argument now. Nevertheless, each of those items—and there seem to be about 300 or so of them—are payments in respect of a particular litigant in a particular legal proceeding. Is that correct?

Mr Duggan : That is correct.

Senator BRANDIS: Presumably—and I am not going to ask you to produce it—you could identify the particular litigant and the particular case by reference to the dollar amount or some other coding that no doubt you maintain.

Mr Duggan : In terms of this list it would be the dollar amount.

Senator BRANDIS: That is fine. All I am wanting from you is an indication as to whether any—and, if so, how many—of those payments are in respect of the legal costs of applicants for judicial review who are asylum seekers, or in respect of individuals who have been charged and are being prosecuted before the Australian courts in relation to people-smuggling offences.

Mr Duggan : The answer is none. The reason for that is that these are amounts paid under one of 26 schemes that we currently administer in relation to financial assistance. Money for the sorts of things you have talked about is effectively dealt with through our legal aid commissions and the discussions we had previously.

Senator BRANDIS: That is fine. Thank you; that is a very unequivocal answer. Is it therefore the case that, other than for payments made through legal aid commissions, there were no moneys paid through any other funding window or mechanism by the Attorney-General's Department to applicants for judicial review in asylum seeker cases or in defence of people-smuggling prosecutions?

Mr Duggan : That is certainly my understanding, yes.

Ms Todd : There might have been something in terms of community legal centres, just to be very clear and particular about that. There might have been some community legal centres that provided some assistance.

Senator BRANDIS: Because you fund community legal centres under a different funding window.

Ms Todd : That is right.

Senator BRANDIS: But you can absolutely exclude the possibility that any other money was paid to asylum seekers making applications for judicial review or to peoples charged with people-smuggling offences, other than funding through either legal aid commissions or community legal centres?

Mr Duggan : Yes, that is right.

Senator BRANDIS: Could I have the document back. Was any fee relief given to applicants for judicial review in relation to court filing fees?

Mr Fredericks : I do not think we can answer that; it is a question for the courts.

Senator BRANDIS: Do you know the answer?

Mr Fredericks : I do not know the answer.

Senator BRANDIS: I cannot imagine that the courts themselves would grant fee relief. There is no policy of the department to provide fee relief?

Mr Duggan : No, not that I am aware of. That would be a matter for individual courts, based on the particular tests they have.

Senator BRANDIS: Is the gentleman who would be in a position to respond to my other questions here yet?

Mr Wilkins : Yes.

Senator BRANDIS: Does it suit you to go back to that other topic?

Mr Wilkins : Sure. I do not think this is going to be an issue—this is the direction you are going in. If we get into some discussions that might get into prejudicing our international relations with Indonesia we might have to discuss that. But I do not think we are going to get into that sort of territory, from the indications you gave.

CHAIR: They might be matters that are best dealt with by the Department of Foreign Affairs and Trade.

Mr Wilkins : I gather that DFAT already has been dealing with this issue during the day.

Senator BRANDIS: As I said to you before, I accept that DFAT will be the principal.

Mr Wilkins : Yes.

CHAIR: They are next week.

Senator BRANDIS: Nevertheless, given that it does bear upon matters within your portfolio, and you have told us that there have been some discussions involving you and your officers, I want to explore that. Mr Anderson, what has been your involvement in discussions with the Indonesian government concerning the repatriation to Indonesia of Indonesian minors held in Australian prisons?

Mr I Anderson : I have had no involvement in discussions with the Indonesian government concerning repatriation of crew.

Senator BRANDIS: I thought from the secretary that you were the man who would be in a position to better inform us about these matters.

Mr I Anderson : We have had no direct discussions with the Indonesian government or with representatives of the Indonesian government.

Senator BRANDIS: Who is the royal 'we'?

Mr I Anderson : The Attorney-General's Department. We have had a number of discussions over time with the Indonesian Consulate here in Australia about the issues—

Senator BRANDIS: That is part of the Indonesian government, isn't it?

Mr I Anderson : Sorry, you were talking about the repatriation?

Senator BRANDIS: Perhaps I have used the wrong term. I am talking about the release from Australian prisons and repatriation to Indonesia of Indonesian minors held in Australian prisons.

Mr I Anderson : I repeat, the Attorney-General's Department has had no discussions with the Indonesian government about the release from Australian prisons of crew. We have had a range of discussions with the consulate about other issues relating to crew. They have raised a range of concerns over a period of time about the treatment of their nationals. The release of crew is only a very recent development and the Attorney-General's Department has had no direct discussions with the Indonesian government about the release of those crew. There have been discussions involving the Department of Foreign Affairs and Trade and the Indonesian government.

Senator BRANDIS: You seem to be familiar with this, Mr Anderson, which is a good start. Can you tell us what you know about those discussions. When was the most recent, for example?

Mr I Anderson : The most recent discussion of which I am aware is that a charge d'affaires at the Australian Embassy in Jakarta formally advised a senior official from the Ministry of Law and Human Rights in Jakarta—on Thursday evening, I believe, but I am not sure if that is Australian time or Indonesian time—that three of their nationals would be released the following day from prison in Australia.

Senator BRANDIS: Well, you do know about this, even though you yourself are not one of the participants. How do you know? Is it because you have been advised by the Department of Foreign Affairs and Trade?

Mr I Anderson : My staff, at my direction, advised the Department of Foreign Affairs and Trade that those crew were being released the following day. We asked them to convey that information to the Indonesian government.

Senator BRANDIS: Describe to me how this works. The conversation with the Indonesian authorities is a conversation that occurs between a DFAT officer and his Indonesian opposite number. But you are made aware of that conversation and the conversation concerns matters within the jurisdiction of the Attorney-General's Department. Is that how it works?

Mr I Anderson : We asked DFAT to have that discussion to formally advise the Indonesian government simply of the release of three of their nationals, because they have the appropriate person in Jakarta to advise the appropriate counterpart.

Senator BRANDIS: What were your instructions to the charge d'affaires?

Mr I Anderson : I do not have that detail, but it was to the effect of—

Senator BRANDIS: Did you give the instructions?

Mr I Anderson : I gave the instruction to my staff to convey to foreign affairs.

Senator BRANDIS: What was the instruction?

Mr I Anderson : The instruction was to advise them of the release of three specified Indonesian nationals. I think there were also the details for their return to Indonesia, in terms of the date and time at which they would be returned to Indonesia. It was a very short communication.

Senator BRANDIS: And you received a report from the charge d'affaires about that conversation?

Mr I Anderson : We received advice from DFAT that the conversation had happened.

Senator BRANDIS: Was that documentary advice or a telephone call, or both?

Mr I Anderson : I believe we received an email confirming that.

Senator BRANDIS: Can you produce that for us.

Mr I Anderson : I will take that on notice. I do not have it here.

Senator BRANDIS: I would not expect you to have it here, but I would like to have the email produced. Regarding the conversation that you think was last Thursday evening, Australian time—

Mr I Anderson : Australian or Indonesian time; I am not sure which.

Senator BRANDIS: Well, last Thursday. That conversation followed upon what? Did it follow upon a request from the Indonesians for the release of these individuals or some other event, and if so—

Mr Wilkins : Are you aware that the review is occurring at the moment—

Senator BRANDIS: I am aware there is a review.

Mr Wilkins : There is a review that involves, I think—correct me if I am wrong, Mr Anderson—28 people in prison.

Mr I Anderson : Yes.

Mr Wilkins : And over a period of time Mr Anderson and his staff have been reviewing the contention these people have made that they are minors. In circumstances were we have come to the conclusion that they are minors, as was the case for these three, a submission was made to the Attorney-General and there is a release on licence, effectively. This is part of that process. These three people have been subject to that process. That is the context in which this is occurring.

Senator BRANDIS: I should have asked you, Mr Anderson—and you may need to take this on notice—the name of the Indonesian official with whom the charge d'affaires had the communication.

Mr I Anderson : I will take that on notice.

Senator BRANDIS: Mr Wilkins has provided the committee with the context in which these releases are taking place, but, dealing specifically with the most recent release, what was the event that resulted in the decision to release these three individuals.

Mr I Anderson : The review itself was occasioned by a request from the president of the Human Rights Commission to the Attorney-General asking for a review of a certain number of cases. The Indonesian Consulate also had raised a number of cases with the department. It suggested that they be looked into, as well, because of concerns the consulate had that these crew might be minors. The Attorney-General decided that the department would carry out a review. There were some further crew who were identified by the Commonwealth Director of Public Prosecutions as being crew who had been convicted and who had at some stage raised the issue of age in those proceedings, albeit only three of them in fact formally contested age in those proceedings. That is how the 28 was arrived at. We commenced a review with respect to these three—

Senator BRANDIS: No, just pause there. So there were three contributing causes to this review: the recommendation of the president of the Australian Human Rights Commission; a request from the Indonesian government; and an advice, or a recommendation perhaps, from the Commonwealth Director of Public Prosecution. Is that right?

Mr Wilkins : No, that is not right.

Senator BRANDIS: Those are the three you identified.

Mr Wilkins : No—well, Mr Anderson may have said that. The precipitating cause was that the Attorney-General decided to have a review. Why she decided to have a review is not something I know, and I am not sure that Mr Anderson is privy to that either. I think he was surmising that these were circumstances, but, in fact—

Senator BRANDIS: I think we will let Mr Anderson speak for himself.

Mr Wilkins : we do not know that what was just said is accurate.

Senator BRANDIS: Come on, Mr Wilkins.

Mr Wilkins : I am just telling you.

Senator BRANDIS: You are the one who suggested that this officer was the person most appropriate to come before the committee to respond to my questions on this topic. The officer has given what seems to me to be a perfectly responsive and detailed answer. You are now saying, in contradiction of your own officer, that you do not know that he would be in a position to know, when he has just told us what he knows.

Mr Wilkins : No, I am just saying that he was surmising that this may have been the reason for the review. I am just saying to you, Senator: the fact of the matter is that the Attorney-General decided to have the review and that is why we are doing it.

Senator BRANDIS: I do not think it controversial that the Attorney-General decided to have a review.

Mr Wilkins : What is controversial is that you are saying it is because the Indonesian government made representations. That is not the reason why; that is not even one of the reasons why.

Senator BRANDIS: Mr Wilkins, you say one thing; Mr Anderson says something different. Mr Anderson appears to have specific knowledge of this matter which you with respect do not. I am going to continue asking Mr Anderson my questions in the hope of shedding light on this matter. Mr Anderson, when you mentioned requests from the Indonesian government, what particular requests did you have in mind?

Mr I Anderson : Senator, I should also clarify that I said that those three sources—the present Human Rights Commissioner, the Indonesian consulate and the DPP—were the sources of the 28 names under review. I would not want to be misunderstood.

Senator BRANDIS: I am interested in one aspect of these series of transactions: that is the relationship between the Australian government and the Indonesian government, and what requests were made of Australia by Indonesia and what was said by Australia to Indonesia. Focusing your mind on the communication from the Indonesian government—it was through the consulate here in Canberra, was it?

Mr I Anderson : Through the consulate.

Senator BRANDIS: So far as you are aware, was that the only communication from the Indonesian government or was there also communication with the Australian embassy in Jakarta?

Mr I Anderson : As far as I am aware, that was the only communication in which the names of individual cases were raised.

Senator BRANDIS: When was that communication made?

Mr I Anderson : There have been a number of communications. There is a regular consular dialogue that involves a number of Australian government departments and several Indonesian government departments. That covers a range of issues of concern to both sides, and crew has been one of the topics that have been discussed on a number of occasions.

Senator BRANDIS: So there have been a range of communications as part of a dialogue. That makes perfect sense to me. When you speak of this range of communications, am I to understand you to be speaking only of communications consequent upon the review announced by the Attorney-General?

Mr I Anderson : No, there have been communications prior to that. As I said, the bilateral consular dialogue is something that happens relatively regularly. Of course, there have been concerns raised in the media, which the Indonesian consulate has followed, about cases involving crew since at least November 2010.

Senator BRANDIS: Once again, that makes perfect sense to me. Mr Wilkins, can you help us here? What was the date of the Attorney-General's decision to have this review?

Mr Wilkins : I am not sure.

Senator BRANDIS: Surely that could be identified in a reasonably swift way?

Mr Wilkins : Yes, I think so. We will have to take it on notice. We know the date it was announced, but the date on which it was decided—

Senator BRANDIS: The date on which it was announced will do me for the present purpose. What is the date it was announced?

Mr Wilkins : It was announced on 2 May, apparently.

Senator BRANDIS: On 2 May this year?

Mr Wilkins : Yes.

Senator BRANDIS: That will do me for the moment. I am going to surmise that the decision was made shortly before 2 May, though I will not confine you to a date. If you could ascertain the date for me overnight that would be useful.

Mr Wilkins : Sure.

Senator BRANDIS: Of the communications from the Indonesian authorities here in Canberra to which you have referred, how many have been since 2 May?

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

Senator BRANDIS: Roughly.

Mr I Anderson : I do not know.

Senator BRANDIS: Do you have a note of it?

Mr I Anderson : No, I do not.

Senator BRANDIS: Was a note made of each of these communications?

Mr I Anderson : I believe it would have been, yes.

Senator BRANDIS: So you can overnight, or perhaps by the time that morning tea time tomorrow comes around, consult the file to ascertain the dates of each of these communications?

Mr Wilkins : Can we take it on notice, Senator? I have already called him back once. You do not want him to work through the night, presumably.

Senator BRANDIS: No, I do not particularly want him to work through the night—

Mr Wilkins : So we take that on notice—

Senator BRANDIS: but I do want answers to my questions. If I get the answers at morning tea time tomorrow—

Mr Wilkins : We will do our best.

Senator BRANDIS: or lunchtime tomorrow—

Mr Wilkins : We will do our best.

Senator BRANDIS: or dinnertime tomorrow, that is fine by me, but I do not want to be put off beyond this estimates hearing. I would like to know when each of those communications was received from the Indonesian—you have said the consulate, but it is the embassy, isn't it?

Mr I Anderson : Yes, that is correct.

Senator BRANDIS: Were those communications made to you or to somebody in DFAT who reported to you, or to some other person in A-G's? Who was the recipient of that communication?

Mr I Anderson : I believe that those communications were to one of my staff.

Senator BRANDIS: To one of your staff.

Mr I Anderson : Yes.

Senator BRANDIS: So they will be on your file, not the DFAT file?

Mr I Anderson : That is my understanding.

Senator BRANDIS: Prior to 2 May, when the Attorney-General announced the review, I understood you to say that there had been other communications as well, of a similar character, from the Indonesian embassy.

Mr I Anderson : I am not saying that there have been any since 2 May. I have taken on notice that I will find out what communications there have been since 2 May.

Senator BRANDIS: We know there was one last Thursday, but that was a conversation in Jakarta in which there was a report by the Australian charge d'affaires to an official of the Indonesian government, letting him know that three teenagers were about to be released.

Mr I Anderson : We do not actually concede that they are teenagers.

Senator BRANDIS: Okay, three individuals were going to be released. We know that there were a series of communications from the Indonesian embassy in Canberra requesting the release of certain individual Indonesian nationals held in Australian prisons—

Mr I Anderson : I do not believe that they were actually requesting their release.

Mr Wilkins : That is not right.

Senator BRANDIS: Okay. You tell me in your words, Mr Anderson, how these communications from Indonesia are to be characterised.

Mr I Anderson : From time to time, the consulate has raised concerns about one or other individual Indonesian crew and has asked that their cases be looked into because, in the view of the consulate, they were likely to be minors.

Senator BRANDIS: Okay. I did not think what I put to you was very different from that. The common feature—

Mr Wilkins : I was conferring because I was just interested to know, Senator. It is not a case of the consuls here ringing up on a regular basis asking for people to be let out.

Senator BRANDIS: Mr Wilkins, I do not want to be rude, but let us just hear it from Mr Anderson, who does seem to know what—

Mr Wilkins : But you keep mischaracterising what he is saying, Senator—

Senator BRANDIS: I do not think I do, as a matter of fact, but be that as it may—

Mr Wilkins : He is my officer. I am trying to make sure—

Senator BRANDIS: Be that as it may, Mr Wilkins, if I ask Mr Anderson a question and he says something to you and then you say something to me, it seems to me a less effective way of eliciting this evidence than—

Mr Wilkins : I am happy to allow you to do this, Senator.

Senator BRANDIS: for Mr Anderson to answer my questions directly.

Senator Ludwig: If you wanted to, we could go all through these.

Mr Wilkins : But, Senator, I am just saying that you seem to mischaracterise his answers, and in that case—

Senator BRANDIS: I do not think I do, Mr Wilkins. Let me make sure that I do not fall into the error you suggest I am making. The communications—

Mr Wilkins : Maybe you could ask whether he could tell you what they are.

Senator BRANDIS: The communications were initiated by the Indonesians?

Mr I Anderson : That is correct.

Senator BRANDIS: They concerned crew—

Mr I Anderson : That is correct.

Senator BRANDIS: in each case. The nature of the communication was the expression of a view, if I can use a neutral term, by the Indonesian authorities that these individual crew ought not to be, for reasons of their age, I gather, incarcerated in Australian prisons. Is that the nature of the communication?

Mr I Anderson : Not necessarily that they should not be incarcerated in Australian prisons, just the question as to whether they should be in the situation in which they were—that is, if they were a minor then there were questions as to whether they should be in an adult correctional facility.

Senator BRANDIS: All right; that is fine.

Mr I Anderson : I have taken on notice the question as to how many communications had occurred since 2 May. In respect of the number of communications before that, I am not sure how frequently these have been occurring. It is against a backdrop where we have these relatively regular consular dialogues. The actual situation of individual crew is only one of the matters that get discussed. Other questions are simply what the processes are under the Australian criminal justice system so that the Indonesian consulate has the opportunity to understand that. We have had discussions Indonesian consulate about making a video that could be shown to Indonesian crew so that they would understand what the consulate can offer them and things like that. So only a very small part of it is about individual crew, to the extent that we have these occasional discussions.

Senator BRANDIS: That is fine, Mr Anderson, but that is the aspect of these transactions that I am interested in, which is why I am asking about that.

Mr I Anderson : Certainly. And the bilateral consulate dialogue is led by the department of foreign affairs. We are only one of the agencies involved.

Senator BRANDIS: Mr Anderson, I have quite a few more questions on this, but I think the most efficient way to deal with this is to—I do not want you to work through the night—I am not Kevin Rudd—

CHAIR: That is one good thing to be glad of.

Senator BRANDIS: I am happy for you to come back tomorrow at a civilised hour, after you have had time to consult your file in the department, so that you can provide a thorough and specific response to my questions. I think I have made it very clear to you the line of inquiry I am pursuing. I just want to know about each of these communications, what they were about, when they were. Chair, may we stand down this witness and suspend this area—

CHAIR: Senator Brandis, I hear what you are saying, but I am the chair here, so we need to take some direction from me. Mr Wilkins, did you want to say something?

Mr Wilkins : We would like to answer the questions now, Senator, or take them on notice. The idea of having to go away and do work overnight I think isn't—

CHAIR: Mr Wilkins, please let me say something here. Tomorrow morning we have local agencies and so we will be getting back to the department at 8.30 tomorrow night at this rate. So we have all of the local agencies to go through tomorrow, eight of them, and we are not due to get the department back until 8.30 tomorrow night.

Mr Wilkins : But, still, we would like to know what these questions are and if we can answer them now.

CHAIR: That is right. You cannot come back with answers if you do not know what you are specifically looking for.

Senator BRANDIS: I do not think I could have put the questions with more particularity than I did earlier when the minister, 'We'll have to take that on notice'. I want the details of each of the communications—

Mr Wilkins : That is why the division is here, to answer to your questions, Senator.

Senator BRANDIS: I want the details of each of the communications in the series to which you have referred. I want to know when they were—

Mr Wilkins : Let us do it now.

Senator BRANDIS: and I want to know the substance of them.

CHAIR: Mr Wilkins, at estimates it is more than reasonable for you to take those questions on notice. It is also reasonable that if you think you can get us a timely answer, do that. What I am saying to you is that there is no need for you to work through the night. We will not be getting back to the department until 8.30 tomorrow night. If you have an answer at 8.30 tomorrow night, we would be happy to receive it. Otherwise, it is very reasonable for you to take them on notice.

Mr Wilkins : Thank you.

Senator BRANDIS: Just so I can understand the magnitude of the task I am asking of you, Mr Anderson—

Mr Wilkins : You are asking of me, Senator.

Senator BRANDIS: Mr Anderson—roughly how many of these communications did you have in mind when you said there was a series?

Mr I Anderson : I do not know how many there have been.

Senator BRANDIS: We are not talking about hundreds, are we?

Mr I Anderson : I do not believe so, but I do not know.

Mr Wilkins : How far back are you going, Senator?

Senator BRANDIS: When did the series of communications of which you speak begin so far as you are aware?

Mr I Anderson : There were media reports concerning the prosecution of Indonesian crew from about November 2010 on, sporadically. I suspect that it was around that time that the attention of the consulate was drawn to these matters.

Senator BRANDIS: In order to define the task as narrowly as possible, let me limit it to communications of the kind you have described between November 2010 and now. That is a period of 18 months. I would simply like you to locate the notes on file or the record that has been made of the communications and bring them to the committee. As the chair has said, we are getting back to the department that 8.30 tomorrow night. There are other questions within this outcome now, but we are getting back to the department tomorrow by 8.30. If you can be here at 8:30 pm with that information, I would be obliged to you.

Mr Wilkins : I suppose that request is addressed to me, is it?

Senator BRANDIS: It was directed to Mr Anderson, but I suppose you are in a position to accept or refuse on his behalf.

Mr Wilkins : I thought it was normal to direct it to the secretary.

CHAIR: That is right. Questions are put on notice to the department. After we get through the agencies tomorrow we will be getting back to the department at 8.30. If you can provide us with answers at that time, we will accept that. Otherwise, if they need to be taken notice because they are detailed and extensive, you have a right to request they be taken on notice.

Senator BRANDIS: I do not want there to be any confusion about this. Limit yourself to communications that since November 2010 you have kept or noted on the file from the Indonesian embassy here in Canberra concerning people of the kind you described in your earlier answers.

Senator RHIANNON: Was the three-year pilot Bsafe program that was funded by an AT grant a highly successful program that greatly reduced the risk of domestic violence for victims in the regional community where it was trialled?

Mr Wilkins : We might have to take this on notice.

Senator RHIANNON: Seriously? That would be quite tragic. It is one of your programs. You funded it. It was trialled in Victoria. It is definitely the Attorney-General's. We have been negotiating with the Attorney-General's office on a motion before the upper house for months now.

Mr Wilkins : What is the program? What does it do?

Senator RHIANNON: It is a domestic violence program that has been seen as highly successful at reducing the risk of domestic violence for victims in regional areas.

Mr Duggan : Is it Indigenous based?

Senator RHIANNON: No, regional. Regional Victoria is where you have been trialling it.

CHAIR: What is the name of the program?

Senator RHIANNON: Bsafe.

CHAIR: It is not funded through FaHCSIA?

Senator RHIANNON: No; definitely through A-G's. We have got a motion in the Senate and we have been negotiating with the A-G's department about it. That is why we have come here.

Mr Wilkins : Is it a state government program?

Senator RHIANNON: No. It is definitely funded by you.

Mr Wilkins : If you can give me as many particulars as you can, I will try and determine if we have got something to do with it.

CHAIR: Senator Rhiannon, you do not know what specific funding it comes under?

Senator RHIANNON: I do know. I am just trying to find the best information. We contacted the A-G's office in February 2012, via Jason Clare's office. We have been having extensive negotiations about this.

Mr Wilkins : Maybe it is a proceeds of crime grant.

Senator RHIANNON: I do not know how it would be proceeds of crime. It has got to do with women and children. It is a highly successful program that you have discontinued funding. The funding was provided under the National Community Crime Prevention Program.

Mr Wilkins : National prevention of crime is actually under proceeds of crime, which is group 3 tomorrow.

Senator RHIANNON: I was told to come to group 2.

Mr Wilkins : It is done under proceeds of crime. It is a grant and it is something which would be dealt with in group 3. We can do it tomorrow. If you want to give us the detailed questions, we can at least get prepared.

Senator RHIANNON: Excellent. I will do that and we will do it tomorrow. Thank you for clearing that up.

CHAIR: That will be after dinner tomorrow. Do you have any other questions, Senator Rhiannon?

Senator RHIANNON: No. It is all about Bsafe.

CHAIR: We will go to you now, Senator Humphries.

Senator HUMPHRIES: These questions, I think, are in group 2. The first questions are in relation to civil justice and legal services.

CHAIR: The programs are listed in our listed in the annual report under the different groups or in the portfolio budget statements, aren't they?

Mr Fredericks : If it is civil justice and legal services, as Senator Humphries just intimated, it is group 2.

CHAIR: Okay, but can you just answer this fundamental question for me and everybody, so it is on Hansard: if the different funding programs are not specified in the portfolio budget statement, they will be in your annual report, unless that changes at budget time?

Mr Wilkins : They should be.

CHAIR: So, if you are wondering where the particular programs are funded, the first place you might look would be your annual report?

Mr Wilkins : That is right.

CHAIR: Thanks for clarifying that. That might help for other senators at other times.

Senator HUMPHRIES: This is program 1.1, and these questions relate to an FOI request in relation to the intercountry adoption program between Australia and Ethiopia. There were documents released under that FOI request that establish that a decision was made to terminate the contract with the only orphanage sending children to Australia—that is the Tesfa/Abdi Waq orphanage—on or before 1 November 2011, so as to terminate the contract with three months notice. I am told that, despite the decision to terminate the contract, the department update of December 2011 made no reference to the determination. Is there someone here who has knowledge of this matter?

Mr Arnaudo : Yes, you are correct. That agreement with the orphanage expired at the beginning of February 2012. That is why the December update did not refer to it—because in December it was current and it was working.

Senator HUMPHRIES: But notice had been given of its termination.

Mr Arnaudo : It was a 12-month agreement and it would have expired at the beginning of February 2012.

Senator HUMPHRIES: You would not expect the department update that I referred to of December 2011 to have made reference to the fact that the agreement with the orphanage had been terminated?

Mr Arnaudo : No, the agreement with the orphanage had not been terminated. The agreement came to an end because it was a 12-month agreement that came to an end in February 2012.

Senator HUMPHRIES: I have the documents here that were released under FOI. This is a document dated 11 May 2012. I have not read the document, but I am told that the document establishes that a decision was made to terminate the contract on or before 1 November 2011 and that the contract is one that could be terminated, presumably by either side, with three months notice. A decision was made to terminate the contract on or before 1 November. It was not an inevitability that it would come to an end; a decision was made to actively terminate the contract. Is that not your understanding of what happened?

Mr Arnaudo : I am not sure which document you are referring to, but I can say that the agreement came to an end and it was not renewed at the beginning of February 2012. It was a 12-month agreement with an orphanage in Ethiopia and it went for 12 months. There were termination clauses in there for either side, but to my knowledge they were not activated.

Senator HUMPHRIES: I understand that the document which was released under FOI made it clear that the department clearly and consciously decided not to tell prospective adoptive parents that the program was effectively on hold until new orphanage arrangements could be put in place, which in fact has not happened as of this point in time. It is also clear that the department briefed each state and territory department to not tell prospective adoptive parents that this was the case.

Mr Arnaudo : You said the date of that document was May 2012—is that correct?

Senator HUMPHRIES: I have a document here which is directed to a person in Hughes, ACT—I will not mention her name in case that is not appropriate. It is signed by Thuy Van Nguyen, Legal Officer, Freedom of Information and Privacy Section, Attorney-General's Department. It is a four- or five-page document and I am not sure which part of this document conveys the information I have just given you. What I will do is put my questions to you and, if you need to take them on notice, take them on notice.

Mr Arnaudo : I am happy to do that.

Senator HUMPHRIES: The questions are: why did the department not advise prospective adoptive parents, many of whom have been waiting for between five and seven years, that the program was going to be put on hold? Why did the department advise states and territories to lie to prospective adoptive parents about why files were no longer being sent to Ethiopia? Given officers from the Attorney-General's Department have now completed another mission to Ethiopia, can the department provide an update at this time, or is it continuing to mislead prospective adoptive parents about the true state of the intercountry adoption program?

Mr Arnaudo : I am happy to take the substance of those questions on notice, but I can categorically state that there has not been any misleading. We have in fact put an update on the website in relation to the most recent visit to Ethiopia that says it is still the most complex and challenging program that we have in our intercountry adoption programs. So we are working very hard with the Ethiopian authorities to try and work through those challenges and also with the orphanages on the ground. But, as I said before, it is our most challenging program. We do try and keep families updated through our website but also in the talking points and messages for the central authorities in the states and territories to deal with the families day to day basis. I am fairly confident that to the extent we can we have tried to provide up-to-date information that is accurate and that reflects the position of the program as it develops. It is always a changing program and it is difficult to manage at times because it is one of those most challenging programs. I will take the other questions you have had on notice and if there is any further information I can provide I will definitely do that.

Senator HUMPHRIES: Part of that FOI release includes an email which has been partly redacted or parts of it have been removed. I notice it does not say what the status of the person who sent the email is but it does include these sentences:

We have agreed with Lemlem that the partnership agreement with the orphanage director will not be renegotiated.

Presumably that was the previous contract.

We are not going to make this point public until we can (hopefully) announce the name of a new partner orphanage, as we do not want to create further angst amongst waiting families.

Mr Arnaudo : Yes, I have got a copy of that in front of me. The date of that email is 6 February 2012, it was not December. At that stage the agreement was not renewed and we wanted to ensure we had other arrangements in place, and those are things we are still working with at the moment. As I said before, it is our most challenging, complex program that we have.

Senator HUMPHRIES: I assume this is someone from the department. If this person was not disclosing in February that the partnership agreement was terminating or had terminated with the orphanage in Ethiopia, does that not imply that there had been no information provided prior to that point that the agreement was being terminated?

Mr Arnaudo : Again, the agreement was not terminated, the agreement expired. It was a 12-month agreement and that is quite a common term for orphanage agreements in Ethiopia. We chose not to renew it and at that time that was the decision.

Senator HUMPHRIES: But that is not my point. The point is that this person is saying on 6 February that we are not going to make public the fact that the orphanage agreement had not been renegotiated, to use her words. Does that not imply that before that point people had not been told that the agreement was not going to be renegotiated, such that it could have misled people who were dealing with the department or with the orphanage on the assumption that the agreement was ongoing?

Mr Arnaudo : We were considering those issues at that time and we were making sure that we would provide as much certainty to the families as we could at that point in time. I think on the 6 February that is what the message was.

Senator HUMPHRIES: Not if they are not being told the agreement was not being renegotiated. You knew from December it was coming to an end but you did not tell anybody that was the case who may have been dealing with that orphanage.

Mr Arnaudo : I am not sure when the decision was made not to continue the agreement. I would have to do take that on notice.

Senator HUMPHRIES: Obviously it was made in December because you said they gave notice in December.

Mr Arnaudo : I cannot see where that date is in the documents that I have got before me and I am not aware of us giving notice, because the agreement was not being terminated.

Mr Wilkins : Senator, what is the problem here?

Senator HUMPHRIES: The problem is that according to these documents—

Mr Wilkins : These documents are?

Senator HUMPHRIES: Documents FOIed provided by your department to an applicant based in the ACT which seems to disclose, based on the facts in the emails part of which I have read to the committee, that an arrangement with an orphanage in Ethiopia was not being renewed, was not being renegotiated. Presumably that was an option that it was decided not to pursue. People were continuing to deal with this orphanage in the expectation it would have the status of an orphanage with which the Australian government had formed a contract.

Mr Wilkins : This person has entered into an arrangement with the orphanage or something?

Senator HUMPHRIES: I do not know.

Mr Wilkins : So they are dealing—

Senator HUMPHRIES: I gather from the question that there are a number of families in Australia, some of whom have been waiting for between five and seven years to adopt children, who were not told that this orphanage was no longer going to be an orphanage with which Australia was contracting.

Mr Wilkins : I am not quite sure what the actual complaint is.

Senator HUMPHRIES: The complaint is that people were not told that they should not deal with this orphanage.

Mr Wilkins : And they have dealt with the orphanage, is that right?

Senator HUMPHRIES: To be frank, I do not know.

Mr Wilkins : Can we take this on notice and have a look at it?

Mr Arnaudo : I am happy to take that on notice, and look at the dates as well if that would assist the committee in its consideration of these things.

Senator HUMPHRIES: Okay, perhaps you could take it on notice. I am happy to provide you with the documents. You seem to have copies of the documents, but they are here if you want to have a look at them. I will now turn to a question about Australian contract law reform. I understand that the government has foreshadowed a review of Australia's system of contract law, which aims to be wide-ranging, to 'make it simpler, cutting red tape and encouraging trade'. I understand that a discussion paper was launched on the review in March. It will focus on federal law but also include a contribution from the states. Why does the government consider this as a pressing reform?

Mr Wilkins : I think it is actually one of the most interesting and innovative things that we are pushing out there at the moment. It emanates from discussions with the European Commission, which has been looking at establishing, if you like, European contract law with a capacity for people to write their contracts on a European basis instead of on a country-by-country basis, if you like, and to have those matters resolved institutionally by European courts or European institutions. So instead of writing a contract in Germany you write a European contract. From a commercial point of view, having looked at what the Europeans are doing we are asking the question of whether or not Australia needs a similar sort of facility so that large corporations can opt in to a situation where they write contracts in a very pure sense. As you would appreciate, there is—for good reason—a lot of compromise in terms of pure contract law around various sorts of warranties and various sorts of regulation which complicate pure contract. But if you are a large corporation, if you are big enough and ugly enough to look after yourself, why shouldn't you have the facility of writing something that is pure contract law?

So it has come out of that sort of consideration. We are looking at something here that might potentially play into Australia's position in the Pacific region, into Asia, and in terms of commercial arbitration as well. It can operate on a number of levels. It also raises the question about whether at the SME level we want to do something about contract law. But essentially that is what is driving it. It is not that we think that there is some enormous deficiency with contract law in Australia at the moment. People are not marching in the streets with placards on this topic. But it is an attempt to get a discussion going around those sorts of issues that I was just articulating.

Senator HUMPHRIES: I will ask you to take on notice these questions. How much does the government intend to allocate to undertake the review? Is it entirely within the Attorney-General's Department, or are there other agencies or departments also participating in the review? When will the review take place? And who will be included in the review? That is four questions.

Mr Wilkins : I will take those on notice and give you a response. We could sort of do it now, but I think it would be better to give you a considered response on those things. And some of those questions are not entirely settled.

Senator HUMPHRIES: I have one small question to add to that. Does the use of European law to govern contracts of the sort you have spoken about imply that disputes under contracts are more likely to be resolved in European courts than in Australian or regional courts?

Mr Wilkins : The example that I gave is from Europe, but here it would be different. Do you mean the way it is operating in Europe itself?

Senator HUMPHRIES: No. I assume what you are saying is that you would encourage everyone to be writing contracts using a standard set of laws, namely the European laws—

Mr Wilkins : They may not be European. They might be just a simplified version of what you and I would have learnt at law school as contract law or maybe a UNCITRAL standardised contract law. They may be a hybrid, neither civil nor common law. Or it could just be the common law. We are not necessarily saying that we are going to put European law in place in Australia.

Senator HUMPHRIES: But you can write contracts that are governed by the laws of any country, even ones that the people who are making the contracts are not residents of.

Mr Wilkins : Yes, that is right.

Senator HUMPHRIES: But you are not expecting that to be the case. You would not be expecting European based courts to be arbitrating these issues.

Mr Wilkins : No.

Senator HUMPHRIES: I will now turn to Commonwealth legal services spending. I understand there is some resistance by some government departments to attempts by the Attorney-General's Department to introduce a whole-of-government legal services system to cut legal costs. The annual bill for legal services is about $600 million across the government, which I am told is 4.7 per cent up on the previous year of 2010-11. I understand several departments have locked in new panel arrangements extending past June of this year, despite having been aware of the draft MUL since October. What sum did each portfolio department and agency spend on legal services for this financial year to date? You can only take that question, presumably, for your department. Why has the Attorney-General's Department not enforced the agreement under the MUL?

Mr Minogue : There are a couple of different concepts that your questions relate to. In relation to the general question about legal services expenditure overall, there has been an increase in the way you described in the order of 4.7 per cent over the previous financial year. In terms of legal services expenditure within this portfolio and this agency, that is something we report on like any other agency under the legal services directions, but I do not have with me figures for this financial year to date. We can take that on notice, but there are reporting dates under the legal services directions by which agencies are required to submit their legal services expenditure—both the internal spend and external spend.

In relation to the multiuse list arrangements, the way that is proposed to work is that from the commencement of the list, which we anticipate to be June of this year, the multiuse list will be operational and agencies will be able to purchase legal services from the qualified providers on that list. Some agencies have current panel arrangements that extend beyond the commencement of the list. That is partly an accident of history and also quite prudent for agencies to make sure that their arrangements continue until the new arrangements come into place. I think the sense that agencies are resisting this is an inaccurate apprehension. There are transition arrangements so that, under the terms of the new arrangements, agencies will be able to purchase off their current panels until 2013, after which it will be a requirement that they purchase from the multiuse list. So arrangements in place can continue. Some—not all but some—agencies that have had arrangements that extend beyond June of this year have put in 'conditions subsequent', so that, once the multiuse list becomes operational, a service provider who is on their panel will fall off their panel if they are not qualified on the multiuse list. There is a conscious bringing together of both of those streams. So there are couple of elements coming in to make sure that there is a sensible transition. Agencies wanted to make sure they were not left without any capacity to purchase legal services should the list not come into operation for any reason but also that there were transition arrangements to make sure there is an orderly movement from existing arrangements to the new arrangements, not just for the benefit of agencies but also for the legal services providers.

Senator HUMPHRIES: Are you telling us that there was not an expectation that, as from June this year, all agencies and departments would be using the multiuse list and bringing other arrangements to an end so that they were all under the multiuse list system?

Mr Minogue : Certainly we have been working with agencies to make sure that, as far as possible, everyone would be starting from the same position. But we recognise that arrangements would have been put in place that could extend beyond the start date, and that start date was a matter that was out of the control of a number of agencies, so it was prudent for them to put in place their own arrangements.

Senator HUMPHRIES: When was this agreement reached that there would be a common adherence to the MUL? You said that there was an expectation that people would start to wind back other arrangements to finish in approximately June of this year.

Mr Wilkins : It was a decision of government.

Senator HUMPHRIES: When was that?

Mr Wilkins : I cannot remember, but it was about 12 months ago or so. We can take on notice precisely when it was.

Senator HUMPHRIES: All right.

Mr Wilkins : This is purely a transitional arrangement involving about two or three agencies or something. I am not sure that it is a major issue.

Senator HUMPHRIES: Maybe it is not, but I will ask the questions anyway. The Financial Review, on 2 March, reported that the Department of Health and Ageing had shortly before then signed its own arrangements, which were not consistent with the MUL, under a panel that was to run from February 2012 to February 2015. If an agreement was formed 12 months or so ago that every agency and department would come into line with these new arrangements, why would Health have signed its own separate agreement as late as February this year to run for three more years, outside the MUL?

Mr Minogue : I think when Health went to market it was actually much earlier than when they executed their panel arrangements. They actually went to market probably 12 months or so ago, so they went out to tender quite some time ago.

Senator HUMPHRIES: But that would not stop them from terminating the arrangement before contracts were let. If a year ago this agreement had been reached, they could have said to the tenderers—it is not particularly desirable to do this but they could have—'Sorry; there are new arrangements in the government; you have to be part of the MUL. Sorry; end of tender.'

Mr Minogue : They could have, and they could do that when the list becomes operational. There are transitional arrangements. It is a sensible, orderly process. That is what has been put in place.

Senator HUMPHRIES: I would have thought that their having an arrangement that extends the non-MUL deal for almost three more years after you were supposed to have everybody in the one tent would not be described as a sensible arrangement. It supports the theme of this article, which is that several major government departments are undermining attempts by the Attorney-General's Department to introduce a new whole-of-government legal services panel system.

Mr Wilkins : I agree with you that that sounds like a silly arrangement, but I do not think it is true to say that there are a whole bunch of people undermining this arrangement. On the contrary; the feedback I have had from my colleague secretaries is that they think it is a good idea.

Senator HUMPHRIES: I assume some do not agree.

Mr Wilkins : Or some maybe have not attended to it; you may be correct.

Senator HUMPHRIES: On present projections, when is the last government department going to be able to come in under the MUL arrangements? We assume it is no earlier than February 2015. Are there any that are running beyond 2015?

Mr Minogue : I am not sure that there are. We can take that on notice. Certainly, since we have been talking to agencies for the last 12 months or so about this coming into place, agencies have wanted to have the arrangements explained to them and be satisfied that they are going to work, but, since it has been a decision of government, agencies have come on board and structured their arrangements accordingly.

Senator HUMPHRIES: Or most have.

Mr Minogue : Yes. I do not think it is a correct supposition that, because some panel arrangements continue beyond the commencement of the multiuse list, there is opposition to the multiuse list.

Senator HUMPHRIES: Is it true, as the article states, that the defence department is said to have spoken out against the MUL and that the ACCC is said to be wary of the list's usefulness given its need for specialist litigation advice?

Mr Minogue : There might be those reports, but the ACCC are an agency that, in particular, when they put in place new panel arrangements, had what we describe as a condition subsequent, so anyone on their panel falls off their panel if that person is not qualified to be on the MUL, so that is a conscious decision—even though they put in place new panel arrangements—to bring their arrangements directly in line with the multiuse list.

Senator HUMPHRIES: I am sure they are complying, but the point is that this article suggests that they were unconvinced of its usefulness.

Mr Wilkins : That is not actually correct. I know the head of the ACCC quite well, and that is just not his view—

Senator HUMPHRIES: All right, good.

Mr Wilkins : so I am not sure where—

Senator HUMPHRIES: What about Defence?

Mr Wilkins : Defence? Defence are not an issue.

Senator HUMPHRIES: I asked you before: is the article accurate when it says that the defence department spoke out against the MUL? Presumably they spoke out to you, since you are the ones who are running the MUL.

Mr Wilkins : They did not speak out to me. The secretary of defence does not seem to have a problem with it.

Mr Minogue : And, at that sort of working level in our negotiations with them, that does not reflect our relationships with our counterparts and the views they have expressed to us—and indeed the support that agencies have given in implementing the arrangements as well.

Mr Wilkins : Sorry, Senator, is this a parliamentary report you are reading from?

Senator HUMPHRIES: No, it is an article in the Australian Financial Review.

Mr Wilkins : Right. I was just wondering where it was coming from.

Senator HUMPHRIES: It is better than a parliamentary report! I think Senator Brandis already asked the questions he wanted to ask you about grants and the excised information on those, so I will pass quickly over those and go to the review into coercive powers. I understand that the House Standing Committee on Social Policy and Legal Affairs in February requested the Attorney-General's Department to undertake an audit of investigative and coercive powers available to security and law enforcement agencies in order to identify the full scope of powers available to those agencies. The audit was to focus on comprehending the extent to which an individual's right to privacy can be abrogated and ascertain whether recent or any further expansion of those powers is necessary or justified. The report is to be provided to the Attorney-General and to this committee by 1 October this year, I understand.

Mr Wilkins : This is a group 3 issue, of course, Senator.

Senator HUMPHRIES: Is it? I was going to ask whether the department has commenced work on the review, which section of the department will carry it out, et cetera. That is all group 3, is it?

Mr Wilkins : That is. That is fine. You do not want us to answer it now or you do want us to answer it?

Senator HUMPHRIES: If you could do that, that would be great.

Mr Wilkins : I am advised that there is not a quick answer.

Senator HUMPHRIES: Okay, we will leave it. Departmental fraud and credit card abuse: how many instances of fraud and misuse of credit cards and/or purchasing facilities have there been in this department or this portfolio in the last 12 months?

Mr Wilkins : That is group 1, actually. We can take that on notice.

Senator HUMPHRIES: In that case, I will put that on notice. Can I also ask you to take on notice what the particulars of each fraud or misuse have been; what disciplinary action has been taken in respect of each instance; and what compensation has been paid by officials who have been in breach of their obligations to act honestly in using credit card and purchasing facilities, please.

Mr Wilkins : Yes.

Senator HUMPHRIES: This is about civil justice and legal services, so it should be in this area.

Mr Wilkins : That is right.

Senator HUMPHRIES: It is about education grants. I have a list of previous grants and the Human Rights Framework—Education Grants applicant program guidelines: 'The education grants provide small grants to a wide range of community organisations'—as I am sure you are aware—'Grants are available for a range of subjects', 'projects should promote a practical understanding of the human rights responsibilities of individuals as members of a tolerant, inclusive society and promote community awareness, understanding and engagement with the rights and freedoms under the UN human rights treaties, to which Australia is a party.' Can you tell me what the cost of this initiative is, please.

Mr Manning : I will just have to find the information, Senator.

Mr Hall : Excuse me, Senator, but are you asking for the total cost or the cost of grants already awarded?

Senator HUMPHRIES: Perhaps you could give me, by each financial year in which it has operated, the total cost of the initiative. Break it up into the cost of running the grants program and the total value of the grants that have been made, please. You can take it on notice if you cannot give it to me now.

Mr Hall : I will certainly give you the information I have here. There have been two grants rounds so far under the program—a 2010-11 round and a 2011-12 round. A total to date of $957,309 has been awarded to fund the 30 projects. We can provide you with the details of those projects fairly easily, if that would assist. In terms of the breakdown of financial year by financial year, I might take that on notice. I may be able to provide that fairly quickly, but I can take it on notice and tell you shortly.

Senator HUMPHRIES: Okay.

Mr Hall : In terms of the costs of running the program, it is operated using existing resources and staffing within the Attorney-General's Department. We also run a moderation process in consultation with the Australian Human Rights Commission, just to provide some scrutiny over the process as well.

Senator HUMPHRIES: Can you take on notice what the time frame for the determination of successful applicants is for this most recent round. Sorry, has there been more than one round?

Mr Hall : There was a round last financial year and a round this financial year.

Senator HUMPHRIES: Right. So for the most recent round what is the time frame for determination of the applications?

Mr Hall : The round closed for applications on 9 May. It opened on a date in April. We are expecting that a decision will be made early in the new financial year. We do not have a precise date, but it is that sort of time frame, consistent with the last round.

Senator HUMPHRIES: The criteria for determining successful applications: were they set out for applicants in a public way?

Mr Hall : Yes, there is a set of criteria, and they are provided to applicants who request them.

Senator HUMPHRIES: Okay. Which committee decides on successful applicants? What is the current membership of that committee? And how is the committee selected?

Mr Hall : The decision maker on the ground is the Attorney-General, on the advice of the department. There is a process where officers that administer the grants program review those grants against the guidelines. We consult with the Australian Human Rights Commission to provide some, if you like, independent consultation in moderating the initial assessment of those grants, and then advice is provided to the Attorney-General assessing each of the grant applications against the criteria—and the Attorney-General makes a decision.

Senator HUMPHRIES: So she would receive the information, and beyond that there is no process associated with the making of that decision—it is entirely a matter for her?

Mr Hall : That is essentially the process, yes.

Senator HUMPHRIES: I think there is a whiteboard in the basement that someone could use if they wanted to make those decisions. Those are all the questions I have been passed down from Senator Brandis, so we can move on to Emergency Management Australia.

CHAIR: Is that outcome 2?

Senator HUMPHRIES: Yes, that is outcome 2.

CHAIR: We are going to move to group 3. In group 3 we are just going to deal with Emergency Management Australia.

Senator HUMPHRIES: We can deal with all of group 3 if you want.

CHAIR: Yes.

Senator HUMPHRIES: I want to follow up some questions I asked in the February round of estimates relating to the upgrades to emergency alert. If you recall we have had issues about how effective emergency alert is. In particular, there has been a quest to develop a location based alert system. In question on notice 53, which I asked and which you kindly answered, there was indication that negotiations were going on with a number of telcos for an upgraded system. At that stage I think an agreement had been reached with Telstra but not with Optus or Vodafone. Could we have an update, please, on where those negotiations stand at the moment?

Mr Wilkins : They are still ongoing. Obviously, people have been energetically prosecuting their issues. Victoria is running the process, as we indicated to you, but they have not come to a landing yet. So there is not formally, at this point—there might be shortly—anything to report that is an advance on what you have in front of you.

Senator HUMPHRIES: So an agreement has been reached with Telstra?

Mr Wilkins : Yes.

Senator HUMPHRIES: And is that now operational, in that users of Telstra devices are able to receive a location based emergency alert warning?

Mr Wilkins : No, I think it is under construction. It is not yet in operation.

Senator HUMPHRIES: So Telstra is constructing its network. Do we know when it is likely that it will roll out its platform?

Mr Rothery : Our advice from Victoria is that they are on track for November this year.

Senator HUMPHRIES: If Telstra gets its system rolled out by November this year but negotiations are still underway with Optus and Vodaphone, it would be fair to assume that Optus and Vodafone's technology will not be available until some point after November?

Mr Wilkins : Yes.

Senator HUMPHRIES: So we could have a disaster season next summer when users of one device have access to the enhanced location based warning system but users of the other device do not?

Mr Wilkins : That is possible.

Senator HUMPHRIES: I suppose that is unavoidable. I want to make sure that we make best use of the time here: is the Natural Disaster Recovery Taskforce for you gentlemen?

Mr Wilkins : It could be answered by us. I am not sure exactly what the question is. It might be regional development, but we will do our best.

Senator JOYCE: I want to ask some questions about the Natural Disaster Relief and Recovery Arrangements. I understand that these may not be in your remit. If that is the case, advise me and I will shuffle down the queue to somewhere else. Under these guidelines can reconstruction funds be spent on internal council later?

Mr Wilkins : That is a bone of contention. It is probably fair to say that some dispensation has been given in Queensland to allow them to do that, but really it has resulted in a situation where Commonwealth taxpayers could end up paying on an ongoing basis for permanent employees of local councils. There are question marks over whether that is continuable or sustainable. It is permissible. The concept is that if people are working on recovery their salaries, if they are contractors, would be paid for. If you could ring-fence this arrangement and say, 'The salaried staff of the council were taken off what they normally do and actually had to work on this recovery project on a road,' or something like that, it would probably be a legitimate cost. But in the case of some councils in Queensland there seem to be people permanently doing recovery work. That may be because of the nature of disasters in that state, but maybe it is also a question about whether it is a sustainable use of taxpayers' dollars in terms of recovery. There seems to be a much higher level of costs in Queensland than in other states.

Senator JOYCE: I do have some distinct interest in Queensland. Would it be fair to say that it is more likely for remote councils—remote as in off the coast—that a quote done by somebody away from the council is often going to be vastly more expensive than if the council did it internally?

Mr Wilkins : It could be. I am not sure. I used to work in New South Wales and found that contracting out was often a cheaper way to do it, even for remote councils.

Senator HUMPHRIES: If you can get the labour.

Mr Wilkins : That is right.

Senator JOYCE: Are you aware that councils often undertake reconstruction works at a far cheaper rate—I have seen examples of a far cheaper rate—than somebody away from the council?

They automatically put a premium on quotes that come in for someone to come out and do a job in St George or Boulia that is obviously excessive compared to what it would be for people who actually live there and have a plant there.

Mr Wilkins : I concede that. I do not really have a problem, if they are council staff doing the recovery work, with paying for their time. But they have to be ring fenced. It has to be a proper cost-recovery thing and it has to be recovery work that they are doing so we are not just paying their normal salary for them to do partly their normal work and partly recovery work. So I think it is a question of the disciplines around accounting for that which is the key thing.

Senator JOYCE: If they could identify that this work is definitely to do with a natural disaster—that is, an exceptional flood or a bushfire—then the ring fencing would be something that the department would strongly consider?

Mr Wilkins : I do not have a problem with it. I might see if my colleagues have something they want to say on the topic, because they are closer to the administration of this scheme.

Mr Darby : One of the principles of this has been that local government should exhaust their own resources first before the state and then the Commonwealth step in. Our relationship is essentially with the state to start off with, and then the state works through these issues with the local government. The Commonwealth provided I think about $85 million to Queensland local government councils when this issue came up. There have been claims that the Commonwealth changed the eligibility criteria. There have been no changes to the eligibility criteria in terms of how councils use their labour. The eligibility criteria have been that councils can claim anything which is extra or additional to their normal day labour costs—so any overtime, any contractors, bringing in extra people, moving labourers around to cover that extra cost. That is all claimable.

Something has grown up in Queensland where councils have been claiming that for some time. It came to light in 2010 and the Commonwealth stepped in to support those councils for whom that was an issue. It paid about $85 million that year. It continued on in 2011, where councils had not transitioned out of using their labour for what would normally be ineligible claims, and another $37 million was paid. We are continuing to work with the Queensland Reconstruction Authority and the Natural Disaster Recovery Taskforce set up in the regional Australia department to see how we might move forward on this, because it is still a source of concern for some local government councils and the Queensland Reconstruction Authority.

Senator JOYCE: Can you explain the issues surrounding the reimbursement of internal council labour forces?

Mr Darby : That is what I was just explaining to you.

Senator JOYCE: What has the Attorney-General's Department done to address this particular issue? I note that the Queensland Reconstruction Authority is liaising with the Commonwealth on a proposal for an alternative methodology for the use of local council internal workforces and resources for disaster recovery. How is it progressing?

Mr Darby : We are working with the Queensland Reconstruction Authority. They have given us a proposal which they are terming their 'value for money proposal'. Because they have such strong governance over all the reconstruction activity that is happening in Queensland, they are able to assess projects put forward by councils, whether the councils run those projects themselves or whether they contract out. The basic principle that the Queensland Reconstruction Authority has put forward is that, if the council goes to tender to see what the costs are to tender out versus what the council costs would be, the Queensland Reconstruction Authority will go through its process of assessing the value for money of both those costs that come in and then we move forward on that. The QRA believes that there will be savings to the Commonwealth in doing it that way.

Senator JOYCE: It sounds like you support the QRA proposal.

Mr Darby : The QRA does have a number of advantages for us. We have concerns about precedent going forward into a lot of other areas because not all states have the very strong governance and oversight mechanism put in place by the Queensland Reconstruction Authority for their major reconstruction after the 2010-11 events.

Senator JOYCE: Seeing as you support it, it makes the rest of my questions superfluous.

Mr Darby : We are working through that at the moment. There are a number of processes we need to work through with a number of government departments, but we are working through it.

Senator JOYCE: Just for the record, I was having a look at a quote for a regional council. Externally, they quote for this job between $5 million and $9 million. Internally, the cost was between $2 million and $4 million.

Mr Darby : I will clarify a little bit. We will provide advice to the relevant ministers. It will be a decision of ERC and relevant ministers which way they want to go. We are working through that, but we believe that there are some points in the proposal that represent value for money.

Senator JOYCE: You realise in the past we have had the ridiculous scenario that, because a council could not do their own work, the council next door would quote for that council's work and the other council would quote for theirs, and apparently that was legit but doing it themselves was not.

CHAIR: We will see all of you again tomorrow night. Thank you.

Committee adjourned at 22:52