Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download PDFDownload PDF 

Previous Fragment    Next Fragment
STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
23/02/2009
ATTORNEY-GENERAL’S PORTFOLIO
Australian Transaction Reports and Analysis Centre

CHAIR —Good morning and welcome. Would you like to commence with an opening statement?

Mr Jensen —With regard to the time, I will pass on that.

CHAIR —Thank you. We will go to questions.

Senator BRANDIS —In the last 12 months, how many prosecutions have been commenced relying upon AUSTRAC investigations?

Mr Jensen —We do not commence prosecutions under the provisions of the legislation for criminal—

Senator BRANDIS —I am aware of that, Mr Jensen. I just wondered whether you knew how many prosecutions have been commenced by the Director of Public Prosecutions relying largely upon investigations that you had conducted.

Mr Jensen —We do not conduct investigations. We analyse the data and make it available. The answer is, no, I do not know what the specific number is. Perhaps the Commonwealth Director of Public Prosecutions can provide that.

Senator BRANDIS —I will ask him. Have the new reporting requirements under the amendments to the legislation resulted in an increase in reports made to AUSTRAC?

Mr Jensen —There has been an increase in the number of reports. Each year since inception there has been a significant increase. The new reporting provisions only took effect as of 12 December last year. We are aware that in December there was a significant increase across the range of reports to us of about 23 per cent. It is too early to look at the figures for the new reporting requirements.

Senator BRANDIS —In actual numbers that 23 per cent represents an increase from what to what?

Mr Jensen —Probably from around 18 million to 20-plus million on the total reports.

Senator BRANDIS —When you say a 23 per cent increase, is that between December 2007 and December 2008?

Mr Jensen —That is correct.

Senator BRANDIS —Do you ascribe at least a part of that increase to the new legislation coming into operation?

Mr Jensen —I would suggest that that is not the case because the provisions are still under the Financial Transactions Reports Act until December and even post-December with some amendments that were made in recent times to continue the reporting during this period.

Senator BRANDIS —Allowing for the fact that I do not want you to go into operational matters, are you able to say what proportion of all the reports made to AUSTRAC in the last 12 months was subsequently investigated, referred to other agencies or not proceeded with?

Mr Jensen —Bearing in mind that we receive a range of financial transactions and not all of them will necessarily result in investigation, of the some 35,000 suspicious matter reports—

Senator BRANDIS —Just confine yourself to that.

Mr Jensen —They were all provided to the Australian Taxation Office, for example, and other agencies have access to that information. Also, because all that information is combined within our database there are linkages between those transactions and other information within the database. We get feedback from the law enforcement agencies. We had feedback for the 2007-08 financial year that there were about 2,800 investigations in which this information was relevant.

Senator BRANDIS —These are investigations by law reform agencies?

Mr Jensen —And the tax office and other national security agencies.

Senator BRANDIS —That is what I am trying to get at. Does that 2,800 figure include or exclude investigations by the Australian Taxation Office?

Mr Jensen —It would include some investigations by the Australian Taxation Office where they have reported information back to us leading to those investigations. That is their information; we may not get all the information or all the investigations. It would depend on how much or what component of that investigation comprised our information.

Senator BRANDIS —Of the 2,800—we will try to finish this in 32 seconds—approximately how many were investigations by law enforcement agencies?

Mr Jensen —I cannot give you those figures. We would have to take that on notice.

Senator BRANDIS —Roughly?

Mr Jensen —A large proportion, I would suggest.

Senator BRANDIS —And roughly what proportion were investigations by national security agencies?

Mr Jensen —I would not have that figure. I would have to provide that on notice.

Senator BRANDIS —Presumably fewer than the law enforcement agencies.

Mr Jensen —Definitely many fewer.

Senator BRANDIS —Thank you very much, Mr Jensen. You will take those last few questions on notice?

CHAIR —The rest of the questions on AUSTRAC and the questions on the Native Title Tribunal will be put on notice, though I am conscious of the fact that Native Title Tribunal people have flown here from Perth.

Senator Wong —Are the opposition senators saying that they have no questions for the Native Title Tribunal?

CHAIR —They are saying that they do but instead of them appearing now before us they can put the questions on notice.

Senator Wong —It is somewhat unfortunate. I understand the committee’s timing, but it is my understanding that a number of officers have come from Perth and if opposition senators were only going to have questions on notice obviously there would have been far less time and expense et cetera if that could have been indicated prior to the hearing.

CHAIR —Yes, you are correct, Minister. Do you still want to put them on notice, Senator Barnett, or do you want to see them after the other agencies?

Senator BARNETT —I am quite happy to pursue it this afternoon. In light of the time frame, we will have to limit the number of questions and I do not want to delay them getting back to their state today. We are going to have several hours after lunch from AFP—

CHAIR —Can the Native Title Tribunal people indicate to us whether they can get a flight back tonight, if that is the case?

Senator BARNETT —If we went to them immediately after the three agencies, we could probably fit that in.

CHAIR —All right, we will reconsider that. We will try to deal with the tribunal before 5.15 pm when we take the dinner break.

Proceedings suspended from 12.32 pm to 1.32 pm

CHAIR —Just before we broke for lunch we decided we would do the National Native Title Tribunal at 1.30 pm. Sorry, gentlemen. We need them for only 15 minutes. So we are going to the National Native Title Tribunal and then they can skip home across the Nullarbor for the rest of the day. I welcome officers from the National Native Title Tribunal as we reconvene our consideration of estimates process. Ms Fryer-Smith, do you wish to make an opening statement?

Ms Fryer-Smith —No, thank you, Madam Chair.

CHAIR —That is fine. Let us go to questions. Senator Barnett.

Senator BARNETT —Thank you, Ms Fryer-Smith, for being here and coming from Perth. I have some important questions that follow on from previous questions I have asked regarding the status of applications currently before the tribunal. I think at the last estimates hearings it was down to 497 from 557. Can you provide an update and a status report, please?

Ms Fryer-Smith —Certainly. As you said, at the last Senate estimates hearing there were 497 claimant applications in the system, which was down from 513 in May 2008. Currently there are 473 claimant applications in the system. That is a reduction of 40 applications from May 2008.

Senator BARNETT —Okay. Do you prepare a prognosis for the next 12 months?

Ms Fryer-Smith —No, we have not prepared a formal prognosis, except that under our national case flow management scheme we have what is called the substantive list, in which we identify applications that we think will be resolved through to determination or dismissal or discontinuance within the next two years.

Senator BARNETT —How many are on that list?

Ms Fryer-Smith —There are about 50 matters on that list.

Senator BARNETT —Only 50?

Ms Fryer-Smith —Only 50 at this time, yes. There is some mobility in the list.

Senator BARNETT —Does it worry you that it is only 50 out of the 473? That must cause some concern.

Ms Fryer-Smith —It does cause concern, of course. That concern is widely shared among all participants in the native title system.

Senator BARNETT —Does that mean that within the next two years we can expect perhaps those 50 to be dealt with and that at least another 400 will not be dealt with to finality?

Ms Fryer-Smith —I really cannot comment on that. As I said, there is some mobility in the system. For example, in the Northern Territory, some matters are being litigated. There is an expectation that once those matters have been determined other matters may quickly follow and be determined. It is simply very difficult to estimate and the substantive list is our best estimate of that.

Senator BARNETT —Sure, but one could surmise and adduce from the figures that you are providing that it would not be unforeseen that there would be some 400 still on the list in two years.

Ms Fryer-Smith —Well, one would hope not, Senator, but it is simply too difficult to predict.

Senator BARNETT —Sure, but that would be a reasonable deduction by an objective observer.

Ms Fryer-Smith —I really cannot add to what I have already said.

Senator BARNETT —The government has announced institutional changes in response to a question on notice dealing with the backlog. I notice that it has announced institutional changes to improve the operation of the native title system where the Federal Court would assume a central role in managing claims.

Ms Fryer-Smith —Yes.

Senator BARNETT —How is that progressing? I note that the answer states that the government intends this change to commence on 1 July 2009. Why would that be if it is ready to go?

Ms Fryer-Smith —That may be a matter that is best directed to the government.

Senator BARNETT —Perhaps Mr Wilkins may assist.

Mr Wilkins —Can you repeat the question?

Senator BARNETT —Yes. The new arrangements announced by the government involve institutional changes to the operation of the native title system whereby the Federal Court will assume a central role in managing all claims and claims will be mediated by the court or the tribunal. An answer to a question I put on notice states that the government intends this change to commence on 1 July 2009. I wonder why that is, rather than it commencing immediately.

Mr Wilkins —I will take the question on notice, but I assume that we need to gear it up. I know that we have had meetings with the Federal Court about how exactly that will operate. Why don’t I take that question on notice and get you a considered response, Senator?

Senator BARNETT —Okay. Can you add anything further, Ms Fryer-Smith?

Ms Fryer-Smith —Nothing very useful. We are aware that the matter is relatively well advanced; that is all.

Senator BARNETT —We are also aware that the Attorney-General has called on all native title parties to take a more flexible, less technical and a more interest based approach to native title. This is in the interests of a faster process in dealing with the backlog. Has that achieved anything; have you seen any noticeable improvement?

Ms Fryer-Smith —I think that all the stakeholders and participants in the system are very mindful of the impact of the delays and the costs associated with determining native title matters. However, it is a national scheme in which at a state level policy matters are addressed in different ways. I am sure that no-one wants the very long lead times that currently exist to continue as long as they have historically. In relation to some of the amendments made in 2007, for example, a number of applications that were in the system but with no real prospect of success have been dismissed.

Senator BARNETT —Does that include the longest duration? I think that last time we met you said that it was 14 years.

Ms Fryer-Smith —Are you referring to the Wik matter?

Senator BARNETT —Possibly.

Ms Fryer-Smith —That is still ongoing. As you will recall from the response that we provided to your question on notice from the Senate estimates hearing of 20 October, the parties in the Wik No. 1 application—which is the one you are referring to—have turned their attention and resources to a second application, which is known as Wik No. 2. They are progressing a number of Indigenous land use agreements and a determination in respect of that second application. That is on track for a consent determination very soon; in fact, as early as February 2009.

Senator BARNETT —Is that Wik No. 2?

Ms Fryer-Smith —Yes, Wik No. 2. The tribunal is preparing to resume mediation of Wik No. 1 when the parties have the resources to turn their attention to that. I should emphasise that some 80 per cent of the land area that comprises Wik No. 1 claim has been the subject of three partial consent determinations to date. So only 20 per cent of the original claim area has not yet been dealt with.

Senator BARNETT —So there is some improvement there.

Ms Fryer-Smith —Yes, there is.

Senator BARNETT —Is it 14 years?

Ms Fryer-Smith —Wik No. 1 was lodged in 1994.

Senator BARNETT —Yes. The Attorney-General has made it clear that he wants to see improvement in this area in dealing with the backlog. The question is what is actually happening on the ground in terms of implementation to deal with it. You have just advised that you have the fast-track list of 50 out of 473. However, without further structural, organisational and resource injections, it is hard to imagine that there will be much improvement other than hearing words. The Attorney hopes that the parties to the disputes will have a more flexible approach.

Ms Fryer-Smith —Certainly, but in my view it should not be overlooked that, although to this point we have been talking about the disposition of the claimant applications, there is considerable activity in relation to other aspects of the native title system, in particular, for example, the entering into of Indigenous land use agreements, which can be for a very wide variety of uses. Because of the rigorous nature of establishing that native title exists, many of the applicants in the native title system in fact direct their resources to the pursuit of their procedural rights under the other parts of the legislation; for example, the entering into of these more flexible Indigenous land use agreements. They are also involved in future act proceedings, where grantee parties want to pursue mining rights. If one looks at the situation only from the perspective of resolving claimant applications, it is obviously not a very happy prospect. But there is significant activity in relation to these other areas.

Senator BARNETT —A funding review of the native title system was concluded in August 2008?

Ms Fryer-Smith —Yes.

Senator BARNETT —I am advised that the recommendations from the review are forming part of the 2009-10 budget process. What does that mean? Can you provide further details in terms of changes in funding for the native title system?

Ms Fryer-Smith —That matter is with the department at the moment. I cannot make any useful contribution in respect of that question.

Senator BARNETT —Does the department wish to respond?

Mr Wilkins —That is part of the budget process.

Senator BARNETT —I thought you might say that, Mr Wilkins.

Mr Wilkins —That is the fact. I cannot really enlighten you. I revert to the previous point you were pursuing. Clearly the Attorney encouraged people to take a more flexible approach, but there are also practical steps, largely tied up with these changes to the Federal Court, which it is hoped will, on the one hand, actually provide for some clear judicial rulings and, on the other hand, provide much more flexibility where it counts. In terms of whether it makes a difference, it is partly attitudinal, but there are also some practical steps in terms of procedure. It is probably best to judge it in the light of the new procedures when they come in.

Senator BARNETT —Sure, we will be monitoring that over time, but we cannot provide a prognosis in terms of the likely benefits from such a change from 1 July 2009 at this stage, notwithstanding the fact that it is to be implemented. You cannot advise as to how exactly it will benefit the system?

Mr Wilkins —I think it will benefit the system in terms of getting some clear judicial interventions at a point where you need a judicial ruling to put the matter to rest or to encourage it to go to mediation. That is the theory of it.

Senator BARNETT —My final question, in light of the time, relates to the government’s and the tribunal’s efforts to improve the system. I asked a question in terms of the time taken to deal with all outstanding claims. The answer that I received was that it will depend upon the extent to which all parties are willing to change their behaviour and to engage actively in progressing claims to resolution. We have sort of touched on that, but can you provide an estimate in respect of the time it will take to deal with outstanding claims?

Ms Fryer-Smith —As far as I am aware there has been no attempt to conduct such a prognosis since last year, when the tribunal estimated that it might take 30 years.

Senator BARNETT —So there has been no change to that?

Ms Fryer-Smith —Not as far as I am aware.

Senator BARNETT —I am wondering whether that is now 25 years, 20 years, 15 years, or whether it has gone up.

Ms Fryer-Smith —Not as far as I am aware. I need to make it clear that that estimate was on the basis that, at the current rate of disposition, that was the likelihood. Of course, there is every hope that that rate will increase.

Senator BARNETT —There is every hope. However, based on the current rate is the 30-year time frame still accurate?

Ms Fryer-Smith —I really cannot comment on that.

Senator BARNETT —You must be able to comment on it. You commented on it a year ago, or your tribunal did.

Mr Wilkins —Senator, it is a little imponderable. If we are right about the structural changes, the rate will be significantly different. What you are talking about is essentially a triage of these cases through the Federal Court. You can expect improvements, but I cannot quantify that at this point.

Senator BARNETT —All right. We were advised a year ago that it would take an estimated 30 years. There have been some minor structural changes and a call by the Attorney for behavioural change. You can assume that it will be in the order of 30 years or hopefully less. Is that a fair observation?

Mr Wilkins —Certainly hopefully less. I am not sure what the exact number is. I am not sure that there is much point in pontificating about numbers in this context. I do not know, but clearly the reforms have been put through and some of the issues that I suspect might come from the government will be designed to ensure these matters are dealt with as quickly as possible. I cannot give you a number.

Senator BARNETT —Ms Fryer-Smith, do you want to add to that?

Ms Fryer-Smith —Not really, Senator. I think the variables are such that, as I said, we have not carried out any other modelling in relation to how things might look. But we have heard nothing either to contradict or to confirm the 30-year prognosis.

Senator BARNETT —Thank you.

CHAIR —Thank you for your attendance today. We will now turn to the Australian Federal Police.

[1.48 pm]