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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
23/02/2009
ATTORNEY-GENERAL’S PORTFOLIO
Australian Customs and Border Protection Service

CHAIR —Welcome to you and your officers, Mr Carmody. To begin our proceedings this evening, do you want to commence with an opening statement at all?

Mr Carmody —No, thank you.

CHAIR —We will go to questions.

Senator BARNETT —Let us start with whales. Can we?

Mr Carmody —We can.

Senator BARNETT —Could you provide a status report regarding Customs involvement, if any, in monitoring and inspecting whaling in our Southern Ocean?

Mr Carmody —There has been no further development since the one trip of the Oceanic Viking that was taken last year.

Senator BARNETT —Can you recall the date and just confirm the time period in which the Oceanic Viking was at sea?

Ms Grant —The Oceanic Viking commenced its patrol to the whale-monitoring activity on 8 January 2008 and effectively finished its mission of direct monitoring on 15 February 2008.

Senator BARNETT —Did it provide a report to Customs, and could that be tabled, in terms of what it discovered, in terms of its monitoring?

Ms Grant —The material that was gathered during that monitoring exercise was provided to the Department of Environment, Water, Heritage and Arts for analysis by that department.

Senator BARNETT —And?

Ms Grant —And that was the end of our involvement with the particular exercise. We were undertaking the operational activity of monitoring and bringing back some video footage and some photographic material for that department.

Senator BARNETT —Did you undertake that monitoring at the request of the department and the minister for the environment at the time?

Ms Grant —Customs was tasked by the government to undertake that monitoring activity, so it was on behalf of the government.

Senator BARNETT —Can you table the report that you provided to the department of the environment, heritage and the arts?

Ms Grant —Well, the material was the videos and the photographs rather than a report. We do not have ownership of that material. I think you would need to seek that material from the relevant department.

Senator BARNETT —That would have been forwarded with a relevant letter or report of some sort?

Ms Grant —I would have to take that on notice. I do not have that detail of precisely what letter of transmittal we used.

Senator BARNETT —You can take on notice that request for that letter?

Mr Carmody —Yes.

Senator BARNETT —Have you received any report back from the department of environment with respect to your monitoring?

Ms Grant —I would need to confirm that on notice. But not to my knowledge we have had no report back.

Senator BARNETT —Can you advise the context of the video and the photos? Can you tell us further and better particulars with respect to what you discovered?

Mr Carmody —Well, I think some footage was made available by the government. I am sure you would have seen that. I do not think there is any more that we can provide at this stage.

Senator BARNETT —Was that made public at the time?

Mr Carmody —Yes. There was footage made available to media outlets and it was shown on the news.

Senator BARNETT —Was any not shown?

Mr Carmody —There was a substantial amount of footage taken. Not all of it was released. But, as Marion Grant has mentioned, that has been provided to the department of environment.

Senator BARNETT —Could you release the—

Mr Carmody —I think there have been issues to deal with the release of this. I think that because there is still a question of whether this would be used in any eventual challenge it would not be appropriate for us to release that.

Senator BARNETT —Challenge by who?

Mr Carmody —The government has put on notice, and it is my understanding, that there was consideration of whether there should be a legal challenge. I am not aware that that position has changed. On that basis, it would not be appropriate to release the footage. This would be a matter, I think, that you would have to further put to the department of environment.

Senator Ludwig —That is still my understanding as to that, Senator Barnett.

Senator BARNETT —But the purpose of the instructions to the Customs Service to monitor the whaling in the Southern Ocean, at least as we were advised at the public level by the government at the time, was for the purposes of potential litigation against Japanese whaling in the Southern Ocean. That was the purpose of the monitoring.

Mr Carmody —That is correct. That is what I said.

Senator Ludwig —That still holds. Therefore, what the response is from Mr Carmody is that that information, first of all, was a matter that was provided to the department of environment and heritage and it should be a matter directed to them as to whether or not they wish to release it. Secondly, the overriding consideration is that there is, on my understanding, consideration for litigation and challenges potentially. Therefore, the material should not be released. Some material was released and was made publicly available, as I recall. I think the response to date is that Customs cannot provide you any information that they have now. It has been taken out of their hands and provided to the department of environment and heritage.

Senator BARNETT —Thank you, Minister. A question for you, Minister, and perhaps the department is: bearing in mind that this was so long ago, has the government given up on its efforts and objective of litigating and stopping whaling in our Southern Ocean? This was certainly the view and objective of the government more than 12 months ago. Some time has elapsed, so we are entitled, I think, to know exactly what the position of the Australian government is. Minister, you might be able to assist in answering the question.

Senator Ludwig —I have not seen the position that has been enunciated by the Attorney-General. Unless you can draw me to something that has changed his opinion, I think the statement that Mr Carmody made is correct. There is still the potential for litigation. But I can check the facts.

Mr Wilkins —I was just thinking that Mr Campbell might be able to assist you again.

Senator BARNETT —He is very helpful, Mr Campbell. He has been tremendous today. He has made a great effort.

Mr Wilkins —I will just explain the status of the material which you have been asking Mr Carmody about. That goes to your question about any potential litigation in relation to this area.

Senator BARNETT —If it is as brief as possible, Mr Campbell, because we are a bit tight on time. So give it a shot.

Mr Campbell —I will make it brief, Senator. The first thing to say is that the original material that was collected was transferred to the Attorney-General’s Department. If you were to ask me the precise date on which it was transferred, I would have to take that on notice.

Senator BARNETT —Thank you.

Mr Campbell —It still remains the case that the material we have has a potential use in a legal action. The government has stated that at the moment it is pursuing diplomatic initiatives, but it is still considering taking a legal action.

Senator BARNETT —That is what we want to get clarity on tonight, with respect, from the department and/or the minister: the government’s position. Does it wish to? Is it pursuing legal action at an international level to stop whaling in the Southern Ocean? If not, why not? If it is, why is it taking so long? It has been more than 12 months since the monitoring was undertaken. It was in January and February last year, so it is now well over 12 months. Has any litigation been commenced? How far down the track are we?

Mr Wilkins —First of all, I think that is a matter for Minister Garrett. But the government has made clear they are pursuing diplomatic attempts to try to sort this issue out. What Mr Campbell was just pointing out is, if you like, keeping one’s powder dry. But the government has been fairly clear on that issue, so I am not quite sure what you are asking.

Senator BARNETT —If litigation were to commence, do you have all the evidence available to mount a meritorious case?

Senator Ludwig —That is an extraordinarily hypothetical question.

Senator BARNETT —It is a good question.

Senator Ludwig —No, it is not. It is a hypothetical question, in truth, because you are asking ‘if’. The government in this instance has stated that it is pursuing a diplomatic resolution. If that should succeed, that would be excellent.

Senator BARNETT —Let us move on because we are a bit tight on time. You indicated that you will take it on notice to provide the dates of receiving that material. Thanks, Mr Campbell. How long is a piece of string? We will be sitting here this time next year. We might be getting the same answers from the same officers. I guess that is possible. This is the environment in which we live. Can we just ask a few questions, Mr Carmody, regarding staffing and the impact of the efficiency dividend. Could you provide an update or status report on your current staffing arrangements.

Mr Carmody —Yes.

Senator BARNETT —That is an opening question for Senator Brandis to pursue.

Mr Carmody —I suspected it might be, seeing his eagerness!

Senator BRANDIS —I turn to page 125 in your annual report. Although they are tables, they are called figures. There is figure 44 and figure 45.

Mr Carmody —Pages 124 and 125, yes.

Senator BRANDIS —Yes. In figure 44, there are staff numbers by classification and gender as at 30 June 2008 and staff numbers by location and classification as at 30 June 2008, respectively.

Mr Carmody —Yes. I have seen those figures.

Senator BRANDIS —Are you familiar with those tables?

Mr Carmody —I have them in front of me, Senator.

Senator BRANDIS —They disaggregate the staff by, in each case, nine identical categories—Indigenous, cadets, graduates, Customs trainees and CL1 through to CL5 and SES. Do you see that?

Mr Carmody —Yes, I do, Senator.

Senator BRANDIS —And it is a common date of 30 June 2008.

Mr Carmody —Yes.

Senator BRANDIS —This is an analysis of an identical staff establishment, according to the two different criteria of gender and location, is it not?

Mr Carmody —Staff numbers by location and classification and staff numbers by classification and gender.

Senator BRANDIS —Yes. They should add up to the same number, should they not? Because they do not. Table 44 adds up to 6,293 and table 45 adds up to 6,300. You seem to have lost seven people between table 44 and table 45. Do you know where they are?

Mr Carmody —No.

Senator BRANDIS —Can that discrepancy be explained, or is that just sloppiness? Is it an applicable difference?

Mr Carmody —Perhaps we will get Linda to make a comment, please.

Ms Smith —Looking at that, I would think that the difference would be possibly when we have people that are in acting positions. So there would be people on leave and then people acting. So the staff numbers by location and classification include SES employed and they include non-SES staff on higher duties at that point in time. Figure 44 would be staff numbers by classification. That would be a headcount.

Senator BRANDIS —I am sorry, Ms Smith, but the two footnotes to table 44—

Mr Carmody —Senator, I think the two footnotes are—

Senator BRANDIS —and table 45 are the same. If the explanation applied to those people, it should apply commonly across both tables.

Ms Smith —I would agree. I apologise.

Senator BRANDIS —I do not want to embarrass anyone.

Mr Carmody —There is a difference of seven from the 6,300. We will take it on notice to find the explanation for that.

Senator BRANDIS —I am sure the explanation is an arithmetical error.

Mr Carmody —There could be arithmetical errors. It could be in compiling differences you do different rounding figures for particular issues. I think it is not unusual.

Senator BRANDIS —It is not a big deal, Mr Carmody. But I do think the parliament is entitled to assume, when agencies sign off on these reports, that they would be checked with an appropriate degree of scrutiny to ensure that errors like this do not happen. Correct?

Mr Carmody —As I said, we will look at it. But, as I said, it could be that in compilation charts there are different rounding approaches and so on, given the number.

Senator BRANDIS —Let us take the higher figure, 6,300, which is also closer to being a round number. That was the staff establishment of Customs on 30 June 2008. Can you tell me, please, applying the same classifications—I just want the aggregate numbers; I am not asking you to disaggregate—what was the staffing establishment of Customs on 31 December 2008?

Mr Carmody —I have tables here which give paid FTEs.

Senator BRANDIS —I want to compare like with like.

Mr Carmody —I understand you want to do that, but I am not sure of the numbers. There are different issues of headcounts and FTEs. I can give you—

Senator BRANDIS —I think we have established that by the discrepancy between tables 44 and 45. What I want to know is whether the staff numbers are going up or down or are constant; and, if they are going up or down, by how much?

Mr Carmody —Absolutely. That is what I was going to go on and say. To give you like with like, I have a different table that has been prepared for estimates, which is an FTE table. If you include—

Senator BRANDIS —That is not in the annual report? This is something that you have brought along today?

Mr Carmody —Understanding that we might be asked a question about staff movements, I had a table prepared which uses the FTE figures. So there will be potentially a slight difference or a difference. But if we include people on leave without pay—I can give you the information with the leave without pay figure or without the leave without pay figure—the number of paid FTEs, which is interesting, given it is leave without pay, at the start of July is recorded here as 5,983. So these will be consistent figures. I should say, to give you absolute clarity, that these figures are an average figure for a month. So the figures I have for you now give you the average for July 2008. I do not have the comparable figure for the annual report. But on this basis—

Senator BRANDIS —Sorry. So the figure of 5,983 is the average number of FTEs including or excluding—

Mr Carmody —Including leave without pay.

Senator BRANDIS —Including leave without pay averaged across the 31 days of July. Is that right?

Mr Carmody —Yes. To give you an idea of the movement from then until the January figure, including leave without pay, it is 5,832. If the arithmetic in this table is accurate, it is 152 less.

Senator BRANDIS —Well it is not. It is 151.

Mr Carmody —It is 151. Well, there is a rounding issue.

Senator BRANDIS —It is not a rounding issue. These are two figures from which the—

Mr Carmody —There is one person. It is one FTE.

Senator BRANDIS —sum is computed are also rounded. So it has gone down by 151 places over six months?

Mr Carmody —Yes, on almost 6,000.

Senator BRANDIS —It has gone down by 151 places over six months. Have you done the same exercise for the first six months of the last calendar year?

Mr Carmody —I do not have it in front of me, no, Senator.

Senator BRANDIS —Have you done the exercise, though, for the first six months of the last calendar year?

Mr Carmody —I do not have it.

Senator BRANDIS —No, that is not what I asked you. I asked you if you had done the exercise.

Mr Carmody —We regularly have updates in our executive meetings, but I am not conscious of that particular figure.

Senator BRANDIS —Would you please take on notice what the—

Mr Carmody —I am sure we can provide that, Senator.

Senator BRANDIS —In fact, do you do this on a monthly basis—work out the FTEs?

Mr Carmody —We have a general understanding. We have executive meetings each month at which we look at our budget and our strategies and so on. FTE comes as part of that.

Senator BRANDIS —So at your monthly executive meetings you have the most recent reporting month’s FTE figures?

Mr Carmody —The most recent, yes.

Senator BRANDIS —So one would expect that you do this basically on a monthly basis?

Mr Carmody —They are available on a monthly basis.

Senator BRANDIS —They are available, are they? Could we have them, please? I know you will have to take this on notice.

Mr Carmody —Certainly.

Senator BRANDIS —Can we have the figures for each month of the calendar year 2008, please.

Mr Carmody —We will give you on an equivalent basis to the figures I have just quoted you the figures for that year.

Senator BRANDIS —That is FTEs on an average monthly basis, including leave without pay positions.

Mr Carmody —Leave without pay, yes.

Senator BRANDIS —Thank you.

—Should we be having a break now, Chair?

Senator BRANDIS —I thought it was at 9.15.

CHAIR —No. It is actually at nine o’clock.

Senator BRANDIS —I will just wind up on one last question.

CHAIR —That is what I was hoping you would do. Then I thought it would be logical, thank you—

Senator BRANDIS —Mr Carmody—

CHAIR —Minister Ludwig, I thought it would be logical to finish on this and this agency and then we will have a break.

—Yes. I was just making sure it was not missed.

CHAIR —That is okay. I am happy to swap chairs with you any time, if you like.

—No, Senator Crossin; I am quite happy with your chairing.

Senator BRANDIS —Mr Carmody, are you able to tell us impressionistically or without putting a specific figure on it whether the number of positions in the first six months of the calendar year 2008 also declined?

Mr Carmody —No. I do not have that.

Senator BRANDIS —Mr Groves seems to be rushing to assist.

Mr Carmody —I think that year was a period of growth.

Senator BRANDIS —Of growth? But in the second half of the year it was a period of decline.

Mr Carmody —By the numbers I have spoken of, yes.

Senator BRANDIS —Of 151 positions.

—Might I suggest it fluctuates over the year, Senator Brandis.

Senator BRANDIS —Well, I am interested in the most recent reporting period, Minister. You will give us those figures on notice. Thank you, Mr Carmody.

Mr Carmody —Certainly.

CHAIR —Thanks, Customs and Border Protection. You can regain your life.

Proceedings suspended from 9.06 pm to 9.22 pm