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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
23/02/2009
ATTORNEY-GENERAL’S PORTFOLIO
Attorney-General's Department

CHAIR —We will now move to the Attorney-General’s Department. We will go to the general cross-portfolio area first. Mr Wilkins, you do not have anything you want to say as an opening statement?

Mr Wilkins —No.

Senator BARNETT —Firstly, with regard to the government’s stimulus package, does the department have any involvement in measures announced as part of the $42 billion package?

Mr Wilkins —As part of the $42 billion package? No.

Senator BARNETT —In terms of the efficiency dividend, I want to get a status report on the implementation of that within your department and an update on where the savings have been achieved and which programs and resources have been cut.

Mr Wilkins —You are talking about the efficiency dividend in the last budget?

Senator BARNETT —Right.

Mr Wilkins —Basically, there is no tale of cuts in any particular area. It is basically drawing in one’s belt across the whole department.

Senator BARNETT —So no specific programs?

Mr Wilkins —No.

Senator BARNETT —Can you provide an update with respect to the current staffing numbers?

Mr Wilkins —I might get Sue Chapman, who is in charge of the human resources area, to take you through those.

Ms Chapman —In relation to the staff numbers, the current paid headcount as at the end of January is 1,521.

Senator BARNETT —Is that full time equivalent?

Ms Chapman —That is a headcount, not full-time equivalent.

Senator BARNETT —Have you got a full-time equivalent figure?

Ms Chapman —For the end of January, no; I do not have that with me. I can take that on notice.

Senator BARNETT —What about from 30 June last year or the most recent figure?

Ms Chapman —For FTE?

Senator BARNETT —Yes.

Ms Chapman —I do not have the FTE with me, but I do have the headcount as at the end of June 2008. There were 1,464.

Senator BARNETT —What was the head count of—

Ms Chapman —June 2008? The headcount?

Senator BARNETT —Yes.

Ms Chapman —It was 1,501.

Senator BARNETT —So you have actually increased 20?

Ms Chapman —Yes.

Senator BARNETT —How many temporary positions exist?

Ms Chapman —I do not know the number. I know the percentage. The percentage as at the end of January was 10.7 per cent of our total.

Senator BARNETT —It was 10.7 per cent?

Ms Chapman —Yes. Non-ongoing and casual employees made up 10.7 per cent.

Senator BARNETT —And at 30 June last year?

Ms Chapman —For 30 June last year, I do not have that figure. I am sorry, Senator. I could take that on notice.

Senator BARNETT —That is okay. How many employees have been employed on contract? What is the average length of their employment period in the 2008-09 financial year?

Ms Chapman —The average length of time on contract is, I think, 15 weeks, from memory. I am just trying to find my exact numbers. I cannot find it just at the moment. I will keep looking, if you like, as you talk. But I do have them here somewhere.

Senator BARNETT —That is okay. Thank you. Which programs are currently tracking to underspend this financial year, 2008-09?

Ms Chapman —Which programs? I cannot answer that. I believe that that is the CFO.

Mr Lutze —Senator, at this stage, as at 31 January, our programs are tracking on budget.

Senator BARNETT —Sorry, I did not—

Mr Lutze —At 31 January, which is the latest date available, our programs were tracking on budget.

Senator BARNETT —All programs?

Mr Lutze —All programs overall, yes.

Senator BARNETT —How many were not tracking on budget?

Mr Lutze —Are you talking about administrative programs or departmental?

Senator BARNETT —Departmental. Let us do both. I will take whichever you have first.

Mr Lutze —In terms of the department, there are not that many major variances. They are really a gap between the directorates.

Senator BARNETT —When you say ‘no major variances’, what is the variance?

Mr Lutze —There is only one area of more than 16 per cent, which is a journal entry. The rest are in the order of 3 to 4 per cent.

Senator BARNETT —And administered programs?

Mr Lutze —Of the administered programs, we look overall. Our forecast on 31 January was to spend $566.765 million. We spent $564.069 million. Within that there are some variations, but overall we are tracking towards budget.

Senator BARNETT —And no significant variations?

Mr Lutze —There are. The one that is mostly overspent in terms of the forecasts that we projected on a monthly basis would be the natural disaster relief and recovery arrangements. We had forecasts to spend by 31 January nearly $40 million. We spent $57 million out of a total budget of $89.5 million.

Senator BARNETT —Sorry. You spent how much?

Mr Lutze —$57 million.

Senator BARNETT —Instead of $40 million?

Mr Lutze —Yes. We had forecast to spend $40 million and we have spent $57 million. That is, of course, based on applications we get from the states for compensation for natural disasters. So it is a demand-driven program, as a lot of the programs are. But that is $57 million out of a total of $89.5 million that is available and that has been budgeted this year.

Senator BARNETT —Out of a total of? I am sorry. It is hard to hear sometimes.

Mr Lutze —Out of a total of $89.54 million that has been set aside by the government this year.

Senator BARNETT —If it is demand driven—

Mr Lutze —Yes.

Senator BARNETT —what happens if we—

Mr Wilkins —Senator, can I comment on that? This is a fund which is available when natural disasters occur. States put in a claim under a formula which is devised between the Commonwealth and the states for a certain percentage of compensation for infrastructure which has been destroyed and needs to be rebuilt, for example. So it is a notional amount which is in the budget. It very much depends on what natural disasters occur in that particular financial year. This waxes and wanes, obviously.

Senator BARNETT —Of course.

Mr Wilkins —I think what we are saying here is that, as you probably noted, natural disasters have been a feature of Australia this year, so the number is higher than normal.

Senator BARNETT —Indeed. What is the prognosis for the remainder of the financial year in terms of that particular fund?

Mr Wilkins —It will depend on how quickly the states—well, obviously there have been some disasters—put in claims and what the order of those claims is. But you can imagine there will be quite a few claims coming up in the lift.

Senator BARNETT —Yes. That is what I wanted to get to. We can touch on it now or we can cover it under Emergency Management Australia. But you must have done some assessment or an estimate of funds to be expended in terms of the Victorian bushfires specifically, and I am also thinking of the North Queensland floods.

Mr Jordana —Senator, would you like those questions fielded now, or would you like to wait until we get to—

Senator BARNETT —Well, I am happy to wait. I know there is another senator who wants to ask about that. But while we are doing cross portfolio, is there an answer that you are able to provide at this stage, or do you want to wait until we get to Emergency Management Australia?

Mr Wilkins —As I say, I am not sure that we have done any scientific estimates of what the order of that might be. We can talk about that.

Senator BARNETT —Perhaps we can just take that on notice and we can kick it off when we get there in terms of exactly what estimates we could expect in terms of costs to the Commonwealth this financial year and into the next, I assume.

Mr Wilkins —Yes.

Senator BARNETT —In terms of the states, of the applications that are made, do they put in dollar for dollar?

Mr Wilkins —I think we had better get the EMA in. We are beginning now to talk about the way it works and the formula.

Senator BARNETT —That is fine. Let us come back to that in due course. I will move on.

Ms Chapman —Senator Barnett, could I give you the figures that you asked for on the length of contracts. I did find it. For all non-ongoing employees, the average length of non-ongoing contracts has been 15.6 weeks over the last period. That is for people in non-ongoing contracts.

Senator BARNETT —Good. We will go back to the staffing matters. What changes are underway or planned for graduate recruitment, cadetships or similar programs?

Mr Wilkins —On cadetships or similar programs, we are not really contemplating any at this stage. On graduates—

Senator BARNETT —Are you not planning any at this stage?

Mr Wilkins —I was not planning any changes. You asked me what changes. I said I was not planning any.

Senator BARNETT —Good. Just getting clarity around that. No changes at this stage.

Mr Wilkins —No. In terms of graduates, I have just spent some time meeting with all the graduates that have come through the Attorney-General’s Department in the last year or so. I am contemplating having a smaller group because I actually think that it would be better for the graduates and better for the department to have a smaller group of graduates.

Senator BARNETT —How many did we have last year? How many do you propose to have this year?

Mr Wilkins —I think there was in the vicinity of something like 50.

Ms Chapman —I think it was 50.

Mr Wilkins —But what you find, if you take in too many people, is you do not spend enough time and effort getting the best out of these people.

Senator BARNETT —So when you are talking smaller, how much smaller?

Mr Wilkins —Maybe half that number. But I think next year and the following year—we have 45 this year—you would be contemplating maybe 25 or something like that as an ongoing number, I would have thought.

Senator BARNETT —Do you have any plans to reduce staff in the foreseeable future?

Mr Wilkins —No.

Senator BARNETT —Has your consultancy expenditure increased in the last 12 months?

Mr Wilkins —Can we take that on notice?

Senator BARNETT —Yes. I will put some questions on notice regarding consultancies. If you take that on notice, we will get that. The government has introduced new legislation, the Federal Financial Relations Bill, which appropriates money to Treasury to pass on to the states. Has your department received any appropriations that will be transferred to the Treasury department? If so, what are these?

Mr Wilkins —It is possible that some of the legal aid money may represent such a program. But there are still discussions going on between us and the Treasury as to whether that actually is of the nature of a payment under that legislation. I am not aware of any other payments.

Senator BARNETT —Do you want to take that on notice, because that seems like an equivocal answer?

Mr Wilkins —No. I am not being equivocal. In fact, I am still having a discussion with Treasury about whether it fulfils the criteria or not. So I am giving you the answer.

Senator BARNETT —We support anybody who is debating or fighting with Treasury.

Senator BRANDIS —I hope the Treasury is not taking its legal advice against you from the Australian Government Solicitor, Mr Wilkins.

Mr Wilkins —I do not know where they are getting their legal advice from, Senator.

Senator BARNETT —Did your department use any depreciation funding for recurrent expenditure in 2007-08?

Mr Wilkins —I do not know the answer to that question.

Mr Lutze —It pre-dates me. We will take that on notice. I do not think so, no.

Senator BARNETT —When you do take it on notice, can you advise what happened in 2007-08 and your plan for 2008-09 and any change for 2009-10?

Mr Lutze —Yes.

Senator BARNETT —Have you used—I am happy for you to take this on notice—any depreciation funding for recurrent expenditure this year?

Mr Wilkins —Was that not the last question?

Senator BARNETT —It is related to the last question.

Mr Lutze —I will take that on notice again. There is no point in giving half an answer if you want a comparison between this year and last year. I will give both in writing to you.

Senator BARNETT —In terms of cross portfolio, I have been advised the National Human Rights Consultation Committee comes under 1.3. I thought I would ask that and get clarity on that.

Mr Wilkins —Just before we do that, you asked me about these Commonwealth-state payments. I was just made aware that there are some payments that are made for liaison officers in relation to classification. These are officers, I think, where we fund the states. They go around and see whether the classification scheme is being properly enforced and being upheld. I am informed that that program may be captured by this legislation.

Senator BARNETT —Thank you. To get clarity re this human rights consultation committee, is that 1.3, or do you want to deal with it now?

Mr Wilkins —Go ahead, Senator.

Senator BARNETT —I know a senator behind me wants to ask about that. Before we pass on to that, in terms of reviews by the department, how many reviews are currently being undertaken in the portfolio? What is the topic for the review and the consultant, if identified? When did the review start? When will it be concluded? I will put some further questions on notice. Do you have a list of reviews that you can advise the committee.

Mr Wilkins —I am not sure what you mean by a review, Senator. We would not use the term ‘review’. Do you mean work that we are doing?

Senator BARNETT —You answered a question on notice about reviews. It is question No. 10 on 20 October. That included consultancies. Question No. 6 was: identify the reviews, including the topic of the review, the date of the report for the review and any other relevant particulars. Have you got a list with you now, or do you want to take that on notice?

Mr Wilkins —No. I will take it on notice. I would not use the term ‘review’ necessarily. I think that is probably the wrong terminology, even though we used that term, I think, last time around. But I think what you are asking is something different, actually.

Senator BARNETT —All right. I will take that on notice. If you want to include consultancies with that, that might broaden the spectrum for you. Consultancies and reviews currently underway.

Mr Wilkins —We will come back.

Senator BARNETT —In terms of cross portfolio, I have completed that. We can ask questions about the Human Rights Consultation Committee. I am advised that now would be an appropriate time, Senator Brandis.

Senator BRANDIS —Well, I am in the hands of the chair, of course, Senator Barnett. However, if—

CHAIR —Cross portfolio questions, though.

Senator BRANDIS —I do have some questions on the National Human Rights Consultation Committee.

CHAIR —We are doing cross portfolio questions across the department.

Senator LUDLAM —This is relating to the A-G’s work in pursuing the antiterrorism laws. Is that cross portfolio?

CHAIR —Antiterrorism laws in A-Gs is more in outcome 2, probably.

Mr Wilkins —Outcome 2, actually.

CHAIR —Yes. Let us go, then, from cross-portfolio matters. We will move to—

Senator BARNETT —George wanted to ask about human rights consultation.

CHAIR —human rights consultations in this area. All right. We will deal with that, then.

Senator BRANDIS —It is convenient now, is it, Chair?

CHAIR —It is. Thank you.

Senator BRANDIS —I think there was $2.8 million allocated to this process in the last budget. How much of that has been spent so far?

Ms Lynch —I am not sure that I can tell you how much has been spent to date. Up until around December, the money that had been spent was largely being spent on staffing costs within the department.

Senator BRANDIS —So they were absorbed costs, were they?

Ms Lynch —No, we had funding. Part of that money you have referred to was used for staffing for us.

Senator BRANDIS —I see. How much as a percentage, then, has been spent?

Ms Lynch —I am just checking. I do not think I have that figure here, but I may be able to get it for you shortly.

Senator BRANDIS —Can you please get it for me shortly, in the next little while?

Ms Lynch —My colleague is looking for it at the moment.

Senator BRANDIS —Thank you very much. Has the National Human Rights Consultation committee produced a budget?

Ms Lynch —The secretariat has done some financial planning, which I do not have with me, on the breakdown between travel costs, support costs, printing costs and those sorts of things.

Senator BRANDIS —That is what I mean. So there has been—

Ms Lynch —I have seen forward planning from the secretariat on how the money will be spent.

Senator BRANDIS —I think that is what most people would think is a budget. So you have worked out how much this is going to cost. Is that up to the end of the period of travel and community consultation in July this year?

Ms Lynch —The committee’s terms of reference have been extended to 31 August.

Senator BRANDIS —To 31 August this year. But I think the period of travelling finishes—the period of these community hearings—a little while before that, does it not?

Ms Lynch —It does.

Senator BRANDIS —And the list of sites on the website of the National Human Rights Consultation lists 50 locations. It shows very commendable industry, I might say, on the part of the members of the committee. Many of these places are very far afield, like Broome and Thursday Island and so on.

Senator BARNETT —Strachan in Tasmania.

Senator BRANDIS —I would not regard Strachan as too far afield, Senator Barnett. It is very much part of metropolitan Australia, I would have thought. What is the cost in terms of travel and accommodation to reach all these 50 places?

Ms Lynch —I do not have those figures with me. I need to take on notice what the indicative breakdown is at this stage between costs.

Mr Arnaudo —Could I say that also, in developing the plan for travel, the committee is mindful to tie in and group as many as possible locations that are close by. For example, I think Western Australia is likely to happen within a week or so and a week and a half.

Senator BRANDIS —It would be like a parliamentary committee. They would not be zigzagging across the country.

Mr Arnaudo —No. That is right. So they have been mindful in terms of designing their itinerary for the range of locations to visit to meet their requirements under the terms of reference as well.

Mr Wilkins —I think they are also splitting up, Senator.

Senator BRANDIS —I was going to ask that. Are all four members going to go to all these places, or are they going to receive these hearings in a kind of divisional way?

Mr Arnaudo —I expect that it is really a matter for the committee members themselves in terms of how they work their program out. But definitely one of the issues that they have been discussing is splitting up into teams of two, perhaps in some locations as well.

Senator BRANDIS —Is it contemplated that they might split themselves into as little a committee as one person to go to some of these places?

Mr Arnaudo —I think that is possible, yes. In some situations, they might also be invited to different events to hear views that maybe other organisations hold. In that capacity, members might travel individually. Or they might be attending other functions at other locations and split up within those locations.

Senator BRANDIS —How many officers of the Attorney-General’s Department have been allocated to the consultation to constitute the secretariat?

Mr Arnaudo —At present, there are six officers. I think we also received some support from the information technology part of the department in terms of the website support. But I can take that on notice and provide you with a more detailed answer.

Senator BRANDIS —Are the costs of those officers being borne by the consultation’s budget?

Mr Arnaudo —Yes. They are.

Senator BRANDIS —In addition to the travel and accommodation costs and the secretariat costs, there is also the question of the remuneration of the four commissioners themselves. What is Father Brennan’s fee or remuneration?

Mr Wilkins —It is modest, Senator. But I would like to take it on notice. I am not sure of the nature of the negotiations there have been with Father Brennan, so I would prefer to take it on notice. If he does not have a problem, we are happy to sort of—

Senator BRANDIS —I will just stop you there, Mr Wilkins. Is your sensitivity to this question in part because Father Brennan is a priest and you do not want to embarrass him?

Mr Wilkins —No, it is a general point. If we enter into an arrangement with somebody and it is confidential for some reason—

Senator BRANDIS —Why should it be confidential? These people are being paid a fee, are they not—these four members of the consultation?

Mr Wilkins —Yes.

Senator BRANDIS —Each of them is being paid a sum of money for their work, which is perfectly appropriate. This is public money.

Mr Wilkins —Yes.

Senator BRANDIS —There is no commercial dimension to this. I would just like to know what the fee is.

Mr Wilkins —As I said, we will come back to you on that.

Senator BRANDIS —Mr Wilkins, do you know what the fee is?

Mr Wilkins —I do, yes.

Senator BRANDIS —Well, may I insist, Mr Wilkins, that if you know what the fee is then it is not a question you need to take on notice. With respect, you are not at liberty to take it on notice. If you do not know the answer or you hesitate about the propriety of the question, that is fair enough; take it on notice. But if you know what the answer is, and nobody suggests it is not a proper question, you are not at liberty to take it on notice. You have to answer my question.

Senator Ludwig —The only issue that is in doubt in my mind is whether there is a confidentiality agreement in place. We can check that.

Senator BRANDIS —Let us ask Mr Wilkins. Is there a confidentiality agreement in place?

Mr Wilkins —That is what I am trying to find out, Senator. If there is not, then I do not have any problems.

Mr Arnaudo —Senator, I would be prepared to check if there are any confidentiality aspects to the agreement. Subject to that, if there are not, we will be able to provide with you the fee for the chair.

Senator BRANDIS —Can that inquiry be made between now and, say, quarter past 11 tonight?

Mr Wilkins —Let us try and do that.

Mr Arnaudo —We can try and do that.

Mr Wilkins —I take your point.

Senator BRANDIS —I think the public is entitled to know what these people are being paid, out of taxpayers’ money, to perform a service on behalf of the Commonwealth.

CHAIR —So, Mr Wilkins, you are going to go and ascertain the answer?

Mr Wilkins —I am not personally going to go, but somebody has got to go.

CHAIR —When I say ‘you’, I do not mean you literally.

Senator Ludwig —I suspect someone up the back has heard.

Senator BRANDIS —I suspect somebody has heard it.

CHAIR —I mean ‘you’ as in you will instruct someone in your department to do that for us by 11 o’clock tonight, if that is possible.

Mr Wilkins —Yes.

Senator BRANDIS —I have no difficulty—let me stress this—with these people being paid a perfectly handsome fee. I just think we are entitled to know what it is.

Mr Wilkins —And I have no problem telling you, Senator. I just want to check that I am not—

Senator BARNETT —I have a follow-up question, an obvious question that relates to all of the people involved, not just Father Brennan. You indicated earlier, with respect to Roger Beale, who is undertaking the audit of the AFP capability, that you would not reveal the fee and the contract arrangements, but here you are happy to take this on notice. What is your response to that? Can you take that matter on notice and reveal the fee to the committee?

Senator Ludwig —Perhaps Senator Brandis pressed more.

Senator BARNETT —Perhaps so. Mr Wilkins, what is your response?

Mr Wilkins —Same issue. We do not normally do that with private contracts involving consultancies.

Senator BARNETT —Just to make it very brief, are you happy to take that on notice and assess whether there is a confidentiality clause?

Mr Wilkins —I will take that on notice and I will come back to you about that.

Senator BARNETT —Thank you.

Senator BRANDIS —With respect, Mr Wilkins, it is not right to say that you do not normally do that with private contractors. In a former life, I used to be paid very handsome fees by the Commonwealth and that was a matter of public record in a tabled document. There is nothing unusual about—

Mr Wilkins —Well, there is if you agree not to.

Senator BRANDIS —people whom the Commonwealth retains for professional services having the fees they are paid made a matter of public record, as it should be. Anyway, let me move on. By what process were these four people—Father Brennan, Ms Kostakidis, Ms Williams and Mr Palmer—selected?

Mr Arnaudo —Senator, they were selected by the Attorney-General.

Senator BRANDIS —Was there any public advertisement for expressions of interest in being a member of the human rights consultation committee?

Mr Arnaudo —No. There was not, Senator.

Senator BRANDIS —Was there any other manner of solicitation of interest from members of the public in being a member of the consultation committee?

Mr Arnaudo —No. There was not, Senator, given the nature of the consultation.

Senator BRANDIS —So the Attorney-General came up with four names and, what, took them to cabinet and those were the names that were signed off on?

Senator Ludwig —I am not sure you can go to the issue of cabinet. But I think what has been said is that the Attorney-General has appointed a four-person consultative committee, and we know who those four people are. I think that is the evidence to date. I am not sure we can go behind that.

Senator BRANDIS —I am not asking what was said in cabinet, of course, Senator Ludwig. Of course I am not. Were they actually appointed as a result of a cabinet decision? Was this an executive council appointment?

Mr Arnaudo —Senator, it was not an executive council appointment.

Senator BRANDIS —Did the question go to cabinet? I am not going to ask you what was said. Did it in fact go to cabinet?

Senator Ludwig —I still think that is putting the question about what could be potentially before cabinet, so I am not sure that the witness can answer that question, quite frankly, Senator Brandis.

Senator BRANDIS —Well, you might take that on notice, Minister, and think about it. I think that is a process question, which customarily has been allowed. Indeed, on many occasions, I have heard you ask similar questions.

Senator Ludwig —And I am not sure I got an answer. But my experience is you are entitled to ask the question. Whether or not you are entitled to an answer is another thing. But I have found that if I do not challenge you on every point, you will take it as given that you can ask it again. So in this instance it is much better to challenge that question and then we will see what we can do.

Senator BRANDIS —I think the question not objected to is regarded as having been acknowledged to be a fair question. Yes, I think you are right.

Senator Ludwig —Well, I am not sure that would be the same position I would adopt. Nevertheless, it seems to be a position you adopt, Senator Brandis. Therefore, I will challenge you on every point that I think necessary.

Senator BRANDIS —Well, every point you think appropriate, Minister. That is fair enough. How was the number four arrived at? It seems a strange number, to have an even number.

Mr Arnaudo —It was just part of the process in which the Attorney-General examined in terms of the functions that were asked of it as part of the terms of reference.

Senator Ludwig —It is not exactly an odd number. I would have thought it is an even number, I would have thought.

Senator BRANDIS —That is my point. It is strange to have an even number. Were the four people who were appointed interviewed beforehand, before the appointment was made?

Mr Arnaudo —I would really have to take that on notice.

Senator Ludwig —Interviewed by whom?

Senator BRANDIS —That might be the next question, Senator Ludwig. Do you know whether they were interviewed?

Mr Wilkins —No.

Senator BRANDIS —You do not know, or they were not, Mr Wilkins?

Mr Wilkins —We do not know, actually. I do not know whether Mr Govey has any additional information.

Senator BRANDIS —Mr Govey?

Mr Govey —I think we are safe in saying they were not interviewed in a formal sense of the word and they were not interviewed in any sense of the word by the department. But what discussions took place between the Attorney or his office and the four people I guess we would have to check on.

Senator BRANDIS —Mr Govey, were people other than the four people whose appointment was announced also interviewed or considered as part of the same process?

Mr Govey —A number of people’s names were put forward, Senator. Again, I would have to take the rest of that on notice.

Senator BRANDIS —I am sure that when the Attorney turned his mind to this question he would have thought of more than these four names. But what I am interested in knowing is how extensive the discussions, however you want to characterise them, that took place were. How many other people were engaged in these discussions to determine whether they were the best people for the Attorney to appoint to this consultation process? Do you understand my question? I understand you will need to take that on notice.

Mr Govey —Yes. We will have to take that.

Senator BRANDIS —I would like to know the names of those other people, please. I assume you will take that on notice too.

Mr Govey —Well, I am not sure it will be appropriate to disclose those names, as you can imagine, Senator, but we will take all of that on notice.

Senator BRANDIS —Well, I cannot see why it would not be. But nevertheless I am inviting you to say you will take it on notice so you can think about that.

Mr Govey —Thank you, Senator.

Senator BRANDIS —I suppose this is to you again, Mr Govey. One of the main issues, if not the main issue, before this committee is to decide whether or not to recommend to the government that Australia should have a bill of rights, not a constitutional bill of rights. The Attorney-General has always made that perfectly clear. It would be some form of non-constitutional bill of rights or charter of rights. Are you aware, Mr Govey—

Senator Ludwig —I will clarify that. I am looking at the terms of reference. The Australian government is committed to the promotion of human rights, a commitment that is based on the belief in the fundamental equality of all persons. It goes forward to say the committee will ask the Australian community. It has three dot points. I am sure you have a copy of that terms of reference. In conducting the consultation, the committee will do a range of things. Then the committee will report to the Australian government by—it has now been extended, obviously—a date in August on the issues raised and the options identified for the government to consider to enhance the protection and promotion of human rights. I am not sure I have identified the question that you have asked as being part of the terms of reference.

Senator BRANDIS —I refer you to the Attorney-General’s press release—

Senator Ludwig —That would be helpful.

Senator BRANDIS —of 5 December 2007, which I think is uncontroversial. It says this process is the culmination. You are right, Minister, when you say that the nature or the issues to be considered have been somewhat broadened from when the Attorney-General said on 5 December 2007 that the government was going to establish a committee to seek community views on whether Australia needs a bill of rights. I am paraphrasing, but that is an accurate paraphrase of what he said. I do not think there is any dispute, is there, Minister, that one of the issues before this committee is whether there should be a bill of rights.

Senator Ludwig —Well, all I was doing is ensuring that the question you put to the witness was an accurate reflection of what this committee could in fact do.

Senator BRANDIS —Well, what I was asking the witness is to acknowledge what I thought was uncontroversial and I think in fact is uncontroversial. One of the most important issues before this committee is whether Australia should have a bill of rights. There is no dispute about that, is there?

Mr Wilkins —Senator, they are not being asked to make recommendations to the government. Their terms of reference asks them to explain what options are available. So I am sure that they will consider this issue that you have raised, but it will not necessarily be a recommendation.

Senator BRANDIS —Well, that is interesting, Mr Wilkins. Let us explore that. So it may be that what this committee does is present to the government not a set of recommendations but a set of alternative options which does not prefer one above the other. Is that my understanding?

Mr Wilkins —It is possible.

Senator BRANDIS —It is a possibility.

Mr Wilkins —It asks them to identify options.

Senator BRANDIS —It will be presumably up to the committee to decide whether or not to make recommendations or whether merely to present options without preferring one option to the other or to take some intermediate course, will it?

Senator Ludwig —Well, that is why I was curious about the question. It seems to me the committee will report to the Australian government by the date in August on the issues raised and the options identified for the government to consider to enhance protection and promotion of human rights. That seems to be the remit. Of course, the committee is to set out the advantages and disadvantages, including social and economic costs and benefits, and an assessment of the level of community support for each option identified. It seems to me that is what the task of the committee is. But I do not want to interrupt your flow of questions.

Senator BRANDIS —Well, please do not. Senator Ludwig, with all due respect—

Senator BARNETT —Too late.

Senator BRANDIS —you are not the minister. You are not the senator representing the minister in the Senate. You are here on behalf of Senator Wong because she is elsewhere. We have all read the terms of reference. I am pursuing a line of questioning of the officers who are closely involved in this process because I want to focus on one issue in particular. It really does not do, with all due respect, merely to have you read terms of reference to me with which practically everyone in this room is well familiar.

Mr Wilkins —They are not being asked to make recommendations to the government. Their terms of reference ask them to explain what options are available. So I am sure that they will consider this issue that you have raised but it will not necessarily be a recommendation.

Senator BRANDIS —That is interesting, Mr Wilkins. Let us explore that. It may be that what this committee does is present to the government not a set of recommendations but a set of alternative options, which does not prefer one above the other. Is that your understanding?

Mr Wilkins —That is possible.

Senator BRANDIS —That is a possibility.

Mr Wilkins —It asks them to identify options.

Senator BRANDIS —It will presumably be up to the committee to decide whether or not to make recommendations or whether merely to present options without preferring one option to the other or to take some intermediate course.

Senator Ludwig —That is why I was curious about the question. It says:

The Committee will report to the Australian Government by 31 August 2009 on the issues raised and the options identified for the Government to consider to enhance the protection and promotion of human rights.

That seems to be the remit. Of course, the committee:

... is to set out the advantages and disadvantages (including social and economic costs and benefits) and an assessment of the level of community support for each option it identifies.

It seems to me that that is what the task of the committee is. I do not want to interrupt the flow of questions but—

Senator BRANDIS —Then please don’t. With all due respect, you are not the minister and you are not the senator representing the Minister in the Senate. You are here on behalf of Senator Wong because she is elsewhere. We have all read the terms of reference. I am pursuing a line of questioning of the officers who are closely involved in this process because I want to focus on one issue in particular. With all due respect, it does not assist merely to have you read terms of reference to me, when practically everyone in this room is well familiar with them.

Senator Ludwig —It just seems to me that you are asking a question the answer to which is obvious in the terms of reference. It was not a matter that was raised in the terms of reference. I was ensuring that the witnesses did in fact at least—

Senator BRANDIS —Senator Ludwig, I am sure Mr Wilkins can look after himself.

CHAIR —Let us keep making progress here.

Mr Wilkins —The point is well taken, Senator, because it does actually say ‘options’ rather than ‘recommendations’.

Senator BRANDIS —So you are not anticipating that this committee will make recommendations.

Mr Wilkins —They are not being asked to do that.

Senator BRANDIS —What is your understanding of the process?

Mr Wilkins —It says:

The Committee will report to the Australian Government by 31 August 2009 on the issues raised and the options identified for the Government to consider to enhance the protection and promotion of human rights.  The Committee is to set out the advantages and disadvantages (including social and economic costs and benefits) and an assessment of the level of community support for each option it identifies.

Senator BRANDIS —Do you think, then, that it would be inappropriate for this committee to make recommendations or to state a preference for one particular model of human rights protection over another?

Mr Wilkins —I would not like to be too legalistic.

Senator BRANDIS —That is not being legalistic.

Mr Wilkins —But if they do say that it would be gratuitous.

Senator BRANDIS —Do you think it would be inappropriate, as you understand the terms of reference?

Mr Wilkins —It would not be strictly speaking in accordance with the terms of reference.

Senator BRANDIS —Nevertheless, however the committee decides to discharge its function, it is uncontroversial that one of the issues that it will have to think about is whether there should be a bill of rights. I see you nodding, Mr Wilkins. I did not think that anybody had any doubt about that—

Senator Ludwig —Having rephrased your question, I think that is right.

Senator BRANDIS —including the three members of the committee who have been kind enough to call upon me to have a discussion about this. Ms Lynch, given the centrality in this debate of the bill of rights issue, were attempts made in selecting the members of this committee to ensure that each of them brought an open mind to that question?

Ms Lynch —I do not think that is something that I can comment on.

Senator BRANDIS —Who was the officer most immediately concerned with the selection and recruitment of these four committee members? Was it you, Mr Wilkins?

Mr Wilkins —The Attorney-General was.

Senator BRANDIS —But in terms of giving support to the Attorney-General’s office, was any officer of your department involved in assisting in the identification, selection and determination of the suitability of these members of the consultation?

Mr Wilkins —I think some names were probably put up but in terms of the selection process it was very much a matter for the Attorney-General.

Senator BRANDIS —Were no, what I might loosely call ‘due diligence’, steps taken to ensure that the members of the committee had an open mind on these matters?

Mr Wilkins —I am sure the Attorney-General was concerned about that question.

Senator BRANDIS —What concerns me, and I do not say this critically of any individual is this: looking, for example, at a number of the statements on the public record that Ms Kostakidis has made, paraphrasing her accurately makes it very clear that she is strongly of the view that there ought to be a bill of rights and if there cannot be a constitutionally entrenched bill of rights there at least ought to be a statutory one. It would seem to me that at least one and perhaps more than one member of this committee has pre-judged this issue. How can we have a community consultation process in which eminent citizens are asked to look at the merit and the arguments for and against a particular proposal when one or more of the people selected by the government has already made up their mind?

Mr Wilkins —I am not aware of what her views might have been.

Senator BRANDIS —I can, if you like, identify a number of public statements made by Ms Kostakidis on this issue. Nevertheless, that is interesting, Mr Wilkins, that you are not aware of what Ms Kostakidis’s views may have been. Was any attempt made by any officers of your department to ascertain what the views of these four individuals were in relation to this issue?

Mr Wilkins —As we have said, it was basically a matter for the Attorney-General.

Senator BRANDIS —Did you know, Ms Lynch, that Ms Kostakidis is strongly in favour of a bill of rights.

Ms Lynch —No, I have not had that discussion with Ms Kostakidis.

Senator BRANDIS —Did you know, though, generally from your familiarity with this issue?

Ms Lynch —I did not know Ms Kostakidis’s views.

Senator BRANDIS —What about you, Mr Govey?

Mr Govey —No, I did not either.

Senator BRANDIS —And you have told us, Mr Wilkins, that you did not know.

Mr Wilkins —I have spoken to her since, and I still did not know that.

Senator BRANDIS —Have any officers of the department examined Father Brennan’s book on the subject? It is a book called Legislating Liberty: a bill of rights for Australia? and it was published in 1998.

Mr Arnaudo —It is not a book I recall having read. I am aware that Father Brennan, in the middle of last year, made a speech on the issue of a bill of rights. During that speech he said that he was a committed fence sitter.

Senator BRANDIS —Yes, I am familiar with that speech but I was asking about an earlier expression of his views.

Mr Arnaudo —I am not familiar with the book you refer to.

Senator BRANDIS —Father Brennan is a person of shining integrity. I am sure that if he said he was a fence sitter in 2008 that was certainly an honest expression of his view. But, like a lot of people, that view seemed to be an evolution of an earlier view that he expressed in 1998. Ms Lynch, are you familiar with the book?

Ms Lynch —I am not familiar with that book.

Senator BRANDIS —Mr Govey?

Mr Govey —No, I am in the same position.

Senator BRANDIS —Mr Wilkins, are you familiar with Father Brennan’s 1998 book?

Mr Wilkins —No, I am not.

Senator BRANDIS —Are any of you familiar with Ms Tammy Williams’s speech to the United Nations World Conference on Racism, Xenophobia, Discrimination and Other Related Intolerances, in Durban, South Africa in 2001?

Ms Lynch —No, Senator, I am not aware of that speech.

Senator BRANDIS —Mr Govey?

Mr Govey —No.

Senator BRANDIS —Mr Wilkins?

Mr Wilkins —I read avidly, but I am not familiar with that one.

Mr Arnaudo —I am not familiar with that speech but I am aware that she attended that Durbin conference in 2001.

Senator BRANDIS —This is the infamous Durbin conference that did not consider anti-Semitism to be a form of intolerance, you will recall. I see you nodding, Mr Wilkins. As for Commissioner Palmer, or Mr Palmer as he now is—to complete the quartet—had anybody taken any steps to ascertain whether he had an open or a decided mind on this bill of rights issue or other related human rights issues?

Mr Wilkins —Nobody at this table, is probably more accurate.

Senator BRANDIS —Yes. Mr Wilkins, does it not strike you as a little surprising that a body, albeit a slightly unusual body, set up to address an important question in public controversy should approach the issue in other than a neutral and not predetermined way?

Mr Wilkins —I do not agree with the implied premise in that question. Nobody at this table actually made the selection; the Attorney-General made the selection.

Senator BRANDIS —I accept that.

Mr Wilkins —I assume that the Attorney was concerned to make sure that the group of people he selected did come at this with an objective and neutral mind. So, notwithstanding that they made speeches at this conference or whatever, I am sure he took steps to ascertain they were the right people to—

Senator BRANDIS —Nobody, certainly not me at least, questions the intellectual integrity of these people. But you would think, wouldn’t you, that the most suitable people to test public opinion on an issue like this and to present options to government would be people with an open mind rather than people who have already made up their mind on the question before they heard the first witness. Wouldn’t you?

Mr Wilkins —They would be people who can be objective and neutral, I agree. That does not necessarily mean that you want people who are uninterested.

Senator BRANDIS —You would have to have people who are interested in the issue and who, like Father Brennan, were committed fence sitters in the sense of being people who had not made up their mind. Thank you. And you will try to get the answer to that earlier question by 11 p.m?

Mr Wilkins —Yes.

[10.12 pm]

CHAIR —As there are no more questions on this and no questions on outcome 1.1 we will move to output 1.2.

Senator BARNETT —I have some questions relating to personal insolvency. Could the relevant officer advise the committee of the most recent data received?

Senator Ludwig —Wouldn’t that generally come from the Insolvency and Trustee Service?

Senator BARNETT —Possibly. But under outcome 1.2 it says ‘personal insolvency’ and there is an officer in the department who is focused on that. If he cannot answer the question, that is fine; if he can, that would be great.

Dr Popple —My division in the department has policy responsibility for bankruptcy but I think you would need to put that question to ITSA.

Senator BARNETT —Do you know the answer to the question?

Dr Popple —I do not have it with me but I guess I would be able to provide it to you later today.

Senator Ludwig —They provide that on a quarterly basis.

Senator BARNETT —Thank you. The role of the Australian Government Solicitor in working on a revised preamble to the Constitution—can an officer at the table respond to questions on that? I know we have AGS later, and we can ask them that.

Mr Govey —I am not aware of any work they are doing on that topic.

Senator BARNETT —Are you aware of any work that they are doing on any constitutional amendments?

Mr Govey —I am not aware of any.

Senator BARNETT —What is the department currently doing in relation to the implementation of the Attorney-General’s move towards a nationally regulated legal profession?

Mr Wilkins —We are preparing advice for the government on that issue in light of the recent statement that was made by the Prime Minister as part of the stimulus package. That refers to it as being a matter for COAG.

Senator BARNETT —What has it got to do with the stimulus package?

Mr Wilkins —It was one of the areas of microeconomic reform that was identified at the end of that statement.

Senator BARNETT —And the advice was that that would go to COAG?

Mr Wilkins —That is correct.

Senator BARNETT —When is that meeting?

Mr Wilkins —The meeting was to be 20 March but with the Queensland elections I think some consideration will be given to moving it around a bit.

Senator BARNETT —So it may be changed?

Mr Wilkins —It may be.

Senator BARNETT —Has the government come up with a figure with respect to the cost savings from the reforms?

Mr Govey —No.

Senator BARNETT —Are you during any analysis of the cost savings of the reforms?

Mr Govey —We are doing an analysis in general terms of the sorts of areas where if there were reforms they would result in savings.

Senator BARNETT —Can you advise the committee on the merits of any reform?

Mr Govey —I think it is implicit in the statement that was made that there would be benefits but those benefits have not been formulated in specific dollar terms.

Senator BARNETT —Have you prepared any papers or notes relevant to that?

Mr Govey —We are in the process of doing that right now—for the purposes of allowing COAG to consider the matter and to provide briefings for ministers and so on.

Senator BARNETT —So there is nothing you can provide us tonight with respect to that?

Mr Govey —No, there are no documents that would be appropriate to provide at this point.

Senator BARNETT —What constitutional head of power will the government use to implement this reform?

Mr Govey —I do not think it would be appropriate to speculate on the legal advice that we have got in relation to this matter, nor would I want to assume that we would be relying ultimately on any particular head of Commonwealth power. There is a range of options for the way in which such a scheme might be implemented.

Senator BARNETT —But you are confident that it can happen?

Mr Govey —I am confident that governments will have a range of options available to them to implement this reform successfully.

[10.17 pm]

CHAIR —We will now move to output 1.3 Information law and human rights.

Senator BARNETT —How does Australia rank globally with respect to human rights?

Mr Wilkins —This is a question that came up earlier—league tables et cetera. I do not think there are any authorised league tables; we could not think of any. The most you will get is some commentary on the performance of different states based on inquiries by the United Nations—

Senator BARNETT —That is right. I was hoping that since earlier today you or your officers—

Mr Wilkins —but they do not give you anything like a comparative league table.

Mr Arnaudo —There is not a broad-based league table that compares countries on human rights issues broadly. I think that is something that the President of the Human Rights Commission earlier this morning explained. In certain specific areas there might be documents that compare a country’s performance in particular areas—

Senator BARNETT —Let us be specific: we asked earlier today of the Human Rights Commission general questions and specific questions. The general questions related to how Australia relates generally with respect to human rights and the protection of human rights with comparable countries throughout the globe. The second questions related to specific aspects of human rights—the protection of women, the protection of children, the protection of the unborn and so on and so forth. She took that on notice—you heard her take that on notice. That was accepted gratefully. Do you want to take the question on notice?

Mr Wilkins —No. I do not think the type of information that you are after is available. If they can find it why would we duplicate the effort?

Senator BARNETT —You are the Attorney-General’s Department; I thought you might know.

Mr Wilkins —We have made some preliminary inquiries. There does not seem to be any such table of the sort that you after or a systematic comparison.

Senator BARNETT —Okay.

Senator Ludwig —Senator Barnett, are you aware of any table?

Senator BARNETT —Yes, one came up in the Sex Discrimination Act inquiry by the Senate with respect to women. Australia was running second in the world. I referred to that particular report this morning, so that is already on the record.

Mr Wilkins —Maybe we could ask you where that came from.

Mr Arnaudo —It is obviously in the Senate report. We can look at it.

Senator BARNETT —Read our report.

Senator Ludwig —I think they will.

Senator BARNETT —I have finished on that topic. What are the current arrangements for the sale of intellectual property owned by the government? What is the government policy with respect to that?

Ms Lynch —There is a government policy on the use of government IP. Ms Daniels might be best placed to tell you what the current statement of IP principles is.

Mr Wilkins —What was the question again, Senator?

Senator BARNETT —What is the government policy with respect to the sale of intellectual property owned by the government?

Mr Wilkins —We might be able to answer a part of it, but I suspect it is a question for the departments that own the information and for the Department of Finance and Deregulation. I will let Ms Daniels respond.

Ms Daniels —The department over the last few years has developed something called the Statement of IP principles, which is a set of 15 principles at a high level for all FMA Act agencies to live by. It sets out a range of principles for how to deal with intellectual property, but it goes beyond sales; it deals with management issues generally.

Senator BARNETT —What about sales?

Ms Daniels —Sales is a part of it. We do not have any data on sales, but our role—

Senator BARNETT —What is the policy with respect to the sale of copyright owned by the government?

Ms Daniels —There is no fixed policy. The policy derives from these principles. The essence of the policy is for agencies to take a flexible approach in making decisions about whether they should own intellectual property in a particular instance. There are no hard and fast rules.

Senator BARNETT —There must be some underlying principles as to whether the government simply gives away its copyright or whether it retains it. What are the principles that apply?

Ms Daniels —I could probably table the principles.

Senator BARNETT —Thank you. While you are doing that, I draw your attention to the Garnaut report and note that the government was forced to pay $65,000 to allow the Department of Climate Change to buy copies of the Garnaut report, for which taxpayers committed some $2.3 million of public money. Does that go against those principles that you have tabled?

Ms Daniels —The principles, as I mentioned earlier, are for agencies to take a flexible approach on decisions in relation to any contract that is dealing with intellectual property. So there is no fixed rule about it.

Senator BARNETT —It is certainly flexible where the department has actually expended $65,000 of our money to obtain that report.

Mr Wilkins —I think you would have to address that question to the Department of Climate Change to understand the logic and reasoning in how they apply the principles. I do not think we can give you an answer on that.

Senator BARNETT —All right. You have tabled the principles. I will ask further questions on notice about that. Finally, what arrangements currently exist to protect users of social networking sites—for example, Facebook and MySpace—from losing control of pictures and information posted on these sites?

Ms Daniels —Losing control in a copyright sense?

Senator BARNETT —Yes.

Ms Daniels —They still have copyright in their material. It is about how that copyright is exercised.

Senator BARNETT —But Facebook recently advised their customers that they did not own it. They used different words, but they said that that property would remain with them. It caused a furore and they changed their policy or their decision. So I was wondering if you had a view on the appropriateness or otherwise of that.

Ms Daniels —Under the normal rules of copyright, the creator would be the first owner in their copyright, whether it is an artwork or a written piece of work, unless there is an agreement to the contrary.

Senator BARNETT —So either they would be acting illegally or they would have to have an agreement with the customer where the customer would sign up and say that they would give up their ownership of that copyright?

Ms Daniels —That is correct.

Senator BARNETT —Finally, is the government considering reviewing the one per cent cap on fees that radio stations are forced to pay to the record industry for promoting their music?

Ms Daniels —That is a longstanding issue between the radio industry and the sound recording industry. The matter is still before government.

Senator BARNETT —Can you advise us on the view of government at this time, either through Mr Wilkins or the minister?

Mr Wilkins —It is a matter of high policy being considered by government. We are not in a position to give you that information.

Senator BARNETT —Does that mean that the government’s position has not changed?

Mr Wilkins —Do you mean the previous government’s position has not changed?

Senator BARNETT —No, the current government’s position.

Mr Wilkins —The current government has not enunciated a position, as far as I know.

Senator BARNETT —Is the minister aware of any further developments?

Senator Ludwig —I think I will take the Senator Brandis defence that I am only representing Senator Wong in respect of this matter.

Senator BARNETT —It is not unfair to ask the question: what is the government’s position with respect to a one per cent cap.

Senator Ludwig —I do not think the government’s position has changed. I certainly cannot recall it. But I am not sure whether the Attorney-General has enunciated a position.

Senator BARNETT —Whatever the position is of the government, could you take it on notice and advise the committee?

Senator Ludwig —I will certainly try to find out what I can to assist the committee.

[10.27 pm]

CHAIR —That concludes 1.3. We will move to 1.4, International law.

Senator BARNETT —I have a question in 1.4. What steps are currently in place for the implementation of the CEDAW protocol?

Mr Skillen —The government deposited its instrument of accession to the Optional Protocol to the Convention of the Elimination of All Forms of Discrimination against Women in early December of last year. The optional protocol will enter into force for Australia in early March this year.

Senator BARNETT —Is there a fixed date when it comes into effect?

Mr Skillen —Yes. I am afraid I do not have that exact date, but I can certainly provide it to you.

Senator BARNETT —Thank you.

Mr Campbell —Senator, the notes that I have say that it will enter into force for Australia on 4 March 2009.

Senator BARNETT —You are most helpful, Mr Campbell. Thank you for being here today.

Mr Campbell —My pleasure, Senator.

Senator Ludwig —That is not the same answer you gave to me in the last six or seven years!

[10.29 pm]

CHAIR —We will move to output 1.5, Legislative instruments. Do we have questions for this area? No, we do not. We will move to 1.6, Native Title. No questions? Okay. 1.7, Indigenous law and justice and legal assistance, and the administration of related government programs.

Senator BARNETT —Yes, I have a question on that. I refer to the answer to question on notice No. 6 from 20 October 2008. Under the heading ‘Review of customary law (bail and sentencing amendments)’ it states:

The Department is reviewing the 2006 and 2007 amendments to Commonwealth and Northern Territory laws which limit consideration of customary law and cultural practice in bail and sentencing matters. It is anticipated the review will be completed in early February 2009.

Could you provide a status update of that review? Could we have a copy of the review if possible?

Ms Kelly —I can assist with that matter. The review is in progress. There was extensive consultation in order to seek views from a wide range of parties. Input has been received from the Northern Territory Attorney-General, which incorporated feedback from the Northern Territory Chief Justice, Chief Magistrate, the Law Society and the DPP; the Commonwealth DPP; the Law Society of the Northern Territory; the Law Council; and Aboriginal and Torres Strait Islander Legal Service providers. That information has been received over the last few months in response to letters that went out in August last year. It is currently being compiled and we expect the review to be completed within the next month.

Senator BARNETT —Will that be presented to the minister?

Ms Kelly —That is correct.

Senator BARNETT —And made public?

Ms Kelly —It will be presented to the minister.

Senator BARNETT —And then we await the response from the minister, I assume.

Ms Kelly —That will be a matter for the minister.

Senator BARNETT —All-right. I do not have any further questions on that particular review, so thank you for that. If I go back one step, I do have a question on the review of the Legislative Instruments Act. Mr Govey, I think you were part of that review. That was to report by 31 March 2009.

Mr Govey —That is correct.

Senator BARNETT —Is that on-track for report at that time?

Mr Govey —Yes, it is.

Senator BARNETT —And that will be presented to the minister?

Mr Govey —To the Attorney-General, that is correct.

Senator BARNETT —Thank you.

[10.32 pm]

CHAIR —We will move to output 1.8, Personal property and securities law. I have to say, haven’t we had enough of this!

Senator BARNETT —This is a very important area. Where are all our PPS experts? Come on down!

CHAIR —You get frequent flyer points this year for this committee, I think—apart from Mr Campbell, I guess!

Senator BARNETT —It is good to see you all again. Firstly, can I ask about the review by WD Scott Asia Pty Ltd: ‘Provision of business analyst services for the personal property securities register project contact centre’. Can you provide further and better particulars of that project, which cost $86,108 and was completed in September last year?

Mr Glenn —That particular project was to develop the business requirements for a procurement process to procure a contact centre—that is, a call centre plus a document fulfilment centre—which would support the PPS register once established

Senator BARNETT —All-right. Can you please advise the cost to the department in this financial year and the last financial year of preparing for the new personal property and securities legislative regime. I would then like a breakdown of those costs and a list of consultancies, reviews and other outsourcing arrangements that have been undertaken this financial year and last financial year.

Dr Popple —We can take that on notice.

Senator BARNETT —Do you have a total cost figure with you?

Dr Popple —In response to a question you asked us last time we appeared in your review of the PPS Bill we answered some of those questions by letter. I am happy to read those out again, but the committee should have those figures.

Senator BARNETT —No, that is fine. We will have a look at those and if you can take that, that would be great.

 [10.35 pm]

CHAIR —We will now move to outcome 2.1, Criminal justice and crime prevention—there are no questions for this area. Output 2.2, International criminal justice issues—there are no questions for this area. Questions for output 2.3.

Senator LUDLAM —I have a couple of questions, one of which may have to go through to the minister, but I will put them to the department. I am wondering whether you can tell us to what degree you are involved in the government’s comprehensive approach to the review of the antiterror laws, including the establishment of an independent reviewer of the terror laws that are on the books?

Mr Wilkins —We are discussing what you are referring to by a ‘comprehensive’ review.

Senator LUDLAM —I can be a little clearer. Last year the Senate passed and sent to the House of Representatives a proposal from the opposition and the crossbenches for an independent reviewer of the terror laws, as has been proposed a number of times over the last couple of years, but it was left out of the original legislation—a standing review committee to establish whether the terror laws are functioning as intended. It was said at the time that the government would not be passing that legislation because they were undertaking to do such a thing themselves and that we would see legislation in the first half of the year. I am wondering whether that is a process you are aware of and, if so, how you are inputting into it.

Ms Willing —The Attorney did announce on 23 December that the government would be establishing a national security legislation monitor. That is being progressed. The government said it would progress that as a  matter of priority. The legislation is being developed by the Department of the Prime Minister and Cabinet and they are consulting us on that. The timing will be a matter for the government but they have said that it will be a matter of priority.

Senator LUDLAM —But it is being led by Department of the Prime Minister and Cabinet. Can you give us an idea of the degree to which you are being consulted?

Ms Willing —Quite heavily. It was something that the Attorney announced and the legislation is being developed in close consultation with the Attorney-General’s Department.

Senator LUDLAM —What form has your advice to the Department of the Prime Minister and Cabinet taken?

Ms Willing —It has partly been being involved in the drafting instructions to the Office of Parliamentary Counsel.

Senator LUDLAM —Have you advised on specific areas of law that you would see as priorities or is it simply the establishment of a mechanism to review overall?

Ms Willing —Yes, simply the establishment of a mechanism.

Senator LUDLAM —Are there particular areas of the legislation that we collectively call ‘terror laws’ that you are more or less concerned about or have directed the drafting toward?

Ms Willing —Yes. The government, I think, indicated that the focus should be on those terrorism laws that have been established above and beyond the criminal law. So they are primarily the laws that were part of that 2002 package—part 5.3 of the Criminal Code, primarily, and part IC of the Crimes Act and a range of other legislation as well.

Senator LUDLAM —That is quite helpful, just giving us those, but are you able to inform us a bit more broadly and perhaps take on notice if need be the particular areas that you are looking at?

Ms Willing —They are some of the areas, but I think in terms of the detail that would be a matter for government.

Senator LUDLAM —Okay. Is your involvement ongoing?

Ms Willing —Yes, it is.

Senator LUDLAM —When do you anticipate that your role would be concluded in that process?

Ms Willing —I suspect when the legislation is through parliament.

Senator LUDLAM —That is fair enough. Do you have an expectation of when the drafting instructions would be complete and we would see something in the parliament?

Ms Willing —The timing will be a matter for the government. It is being worked on at the moment, but I really cannot give any indication of that.

Mr Wilkins —It is probably not appropriate to give that sort of information, which is part of the work of cabinet. To elucidate, it is sitting in the Prime Minister’s department so that it has some objectivity and distance from the Attorney’s portfolio and administration, because that is where the laws will be administered—so it is to give it some distance and objectivity.

Senator LUDLAM —Sorry?

Mr Wilkins —To give it some distance from the Attorney-General’s Department when it actually comes to operate, because we administer these laws.

Senator LUDLAM —Is it not normal, though, that the departments or the ministers with carriage of the laws would be the originators of reform proposals such as these? Why do you think there is the need for some distance in this respect?

Mr Wilkins —I think it is partly a question of perception; otherwise, you get a poacher-gamekeeper problem.

Senator LUDLAM —Okay. In response to a question on notice, you indicated that the department spent approximately $45 million overall on counterterrorism measures in 2007-08. My question goes to whether this includes the costs of the department’s prosecutions of particular cases. For example, does this include the cost of prosecuting the Hicks, Habib and Haneef cases?

Ms Willing —The department itself is not involved in prosecutions. That figure of $45 million was compiled over various areas within the department that are involved in counterterrorism measures.

Senator LUDLAM —So you are not involved in prosecution but you are involved in monitoring those cases and bringing them before the courts, to a degree.

Ms Willing —Yes.

Senator LUDLAM —So would those funds include expenditure related to the three cases I listed?

Ms Willing —There would be a percentage of that figure that would be covered by those things, yes.

Senator LUDLAM —That is included. That is all I was trying to find out; thank you. As you are no doubt aware, the resources available to the prosecutions and the defence teams in these terror cases heard in Australia to date are quite asymmetrical. Significant effort is required to secure legal aid for a solicitor to accompany a barrister for the defence, whereas quite extensive teams of QCs are available for the prosecution. I would just like to know how much the department has spent in relation to the Jack Thomas case.

Mr Wilkins —Presumably you are asking about costs incurred by the DPP?

Senator LUDLAM —Or by your department specifically.

Mr Wilkins —Are you talking about legal assistance for someone? I do not quite understand the import of the question, Senator.

Senator LUDLAM —I will try and flesh it out. I am trying to establish to what degree the department is involved in expending resources in pursuing particular terrorism related cases, such as that of Jack Thomas.

Senator Ludwig —The confusion, I think, is over the word ‘pursue’. The usual case is that the AFP will investigate the matter and will then refer the prosecution to the Commonwealth Director of Public Prosecutions, who will make a decision to prosecute or not to prosecute. So I think the confusion comes from the role. I would like to provide assistance to you in this instance, but you can see the difficulty the question that you are asking is presenting to the Attorney-General’s Department, which has policy responsibility for this area.

Mr Wilkins —The strict answer to your question is nothing, actually—zero. But I suspect what you are wanting to know is how much the Crown spent on investigations and prosecutions, which are questions that should be directed to the DPP and, presumably, the police.

Senator LUDLAM —All right, I will leave that there. Lastly, we have information that in one particular case a jury had brought a dictionary into their deliberations to ascertain the definition of the word ‘fostering’ when it comes to the doing of a terrorist act. Is that something that has been brought to your attention? How does the Attorney-General interpret the word ‘fostering’?

Mr Wilkins —The answer to the first part of your question is: we are not aware of that. I can try and give you a definition of fostering, but I do not know if that is the point of your question.

Senator LUDLAM —I guess it is in two parts. Firstly, you are not aware that a jury had actually taken recourse to a dictionary to ascertain whether an act had fostered a terrorist act or not.

Mr Wilkins —No, not aware of that.

Senator LUDLAM —I just wondered whether that might have fed into your drafting instructions or if it is something that you might like to take away.

Ms Willing —We can certainly look at that.

Mr Wilkins —We can look at that, yes.

Senator LUDLAM —Thanks. I have no other questions.

[10.46 pm]

CHAIR —Let’s move on to outcome 2.4, National emergency management. Senator Humphries has some questions.

Mr Wilkins —Madam Chair, we have made some inquiries for Senator Brandis apropos the question of disclosing fees. There does not seem to be any impediment.

Senator BRANDIS —Thank you for making those inquiries.

Mr Wilkins —Just being careful. Peter Arnaudo could give you this information now.

Mr Arnaudo —The chair is entitled to $1,500 per day, members $731 per day—

Senator BRANDIS —$731 per day?

Mr Arnaudo —Those figures are inclusive of GST. We were also asked for the total expenditure.

Senator BRANDIS —Pausing there, I assume that those are their fees. Then, in addition to that, they would be perfectly entitled to the appropriate allowance for accommodation and meals. That is not inclusive of that kind of stipendiary payment.

Mr Arnaudo —Without referring to the actual contracts, I expect that the entitlements are similar to entitlements of senior public servants in the Attorney-General’s Department.

Senator BRANDIS —That is fine. You will need to take this notice, but I would like to know, please, for how many days so far—that is, up to today, 23 February 2009—each of the four members of the panel has earned that fee, because I assume that the fee includes not just time taken with hearings but also preparation time and so on. So would you please tell me for how many days Father Brennan and each of the three other panellists has earned this fee up to today.

Mr Arnaudo —I can take that on notice, yes.

Senator BRANDIS —Thanks. You were going to tell me something else about the budget.

Mr Arnaudo —You also asked for the total expenditure on the consultation. For the calendar year 1 January 2008 to 31 December 2008 it was a total of $267,130.

Senator BRANDIS —Does that include the payment of the fees to the four—

Mr Arnaudo —Yes, that is a complete total.

Senator BRANDIS —That is of all outlays?

Mr Arnaudo —Yes, to 31 December 2008.

Senator BRANDIS —Perhaps you are not in a position to provide this yet, but I also asked about the budget.

Mr Arnaudo —Yes. I will probably have to take that on notice. I am not able to provide that to you tonight.

Senator BRANDIS —That is fine. Thank you, Mr Arnaudo, that is very helpful.

Senator BARNETT —Mr Wilkins, did you make that assessment or is that still under review?

Mr Wilkins —We will take that on notice.

Senator HUMPHRIES —Could I start by checking the current status of Emergency Management Australia. It has been put to me that EMA is in the process of being abolished or has actually been abolished. Is that true?

Mr Wilkins —No.

Senator HUMPHRIES —It is still a fully functioning arm of government?

Mr Wilkins —Yes.

Senator HUMPHRIES —That is reassuring. There are no plans to abolish—

Mr Wilkins —The director is sitting on my right.

Senator HUMPHRIES —And he is still the director of EMA?

Mr Wilkins —Yes.

Senator HUMPHRIES —There are no plans to abolish your agency, Mr Pearce?

Mr Pearce —Not as far as I am aware, Senator. I think I will just be reassured. No, there are no plans.

CHAIR —Mr Pearce, perhaps you should identify yourself for the Hansard record.

Mr Pearce —Tony Pearce, Director General, Emergency Management Australia—still.

Senator HUMPHRIES —I think Mark Twain would have something to say about news of a death being exaggerated, so I am pleased to hear that. Some questions that I put on notice after the October hearings asked for details of particularly Emergency Management Australia catastrophic plans—plans to deal with a major natural or man-made disaster which is large in scale or which crosses the boundaries of jurisdictions in Australia. I particularly want to understand the basis on which it was asserted that an agency, an agent or an officer of the Commonwealth would have the right to exercise a leadership role in the management of such a crisis. I have been given a number of pieces of information in those answers about processes that might be used—for example, the COMDISPLAN and the Ministerial Council for Police and Emergency Management-Emergency Management, or MCPEM-EM, and so forth. With great respect, none of those documents seem to demonstrate a right by the Commonwealth to step in and say: ‘We are leading this response. Here is what’s going to happen to deal with this major across-the-nation disaster.’ Am I correct in that assumption?

Mr Wilkins —That is correct. There is no legal or coercive power that can be brought to bear to say, ‘We’re taking you over this.’ It is done through a process of agreement with the states and territories, and the states have primary responsibility for emergencies. When you get things across borders, you need do it through a process of agreement. There are agreed national plans that deal with different disasters. But if your question is whether there is some sort of legal right or capacity to coerce and to stand in, the answer is probably no. You are talking about natural disasters here; you are not talking about issues relating to counterterrorism or things like that. It might be slightly different if the defence power or the Defence Act were concerned in that sense.

Senator HUMPHRIES —Let us constrain ourselves to natural disasters for the moment. In those earlier answers, the processes described are ones that work through meetings and consultations. In some cases, they are meetings of Prime Minister, premiers and chief ministers to establish a trigger for a mechanism which eventually leads to certain decisions. It seems to me that that process necessarily takes time and is complex and so it may not be very swift or timely in the event of a major disaster which requires immediate national coordination. I make that as a statement, and you can respond to it. I note in one of your answers that a national catastrophic disaster plan is being developed. It was discussed at the police and emergency services meeting in November. Is that document envisaged to create the kind of national leadership framework that I have just referred to?

Mr Pearce —It certainly will go a long way to doing that. Whether it eventually identifies an individual I could not say. What it will do is clearly articulate how the Commonwealth, the states and the territories work together with regard to a catastrophic event. The other thing that already exists underneath that, which I think was also provided in the questions on notice last time, was the current model arrangements for leadership in relation to catastrophic events, which shows how the Prime Minister, premiers and chief ministers converse in relation to a disaster to agree, in the absence of a national plan, on exactly what the relationship will be.

If you take the Victorian fires at the moment, for example, that is the most extreme event we have suffered for quite some time. Those arrangements have been activated and put in place. I suggest there has certainly been no loss of capacity of the Commonwealth or the states and territories—or agencies of them—to respond in a timely fashion to that, even in the absence of a clear mandate for any individual at a Commonwealth level.

Senator HUMPHRIES —I agree, but that is not a disaster that crosses borders. It is particularly a Victorian disaster.

Mr Pearce —It is.

Senator HUMPHRIES —The lines of authority are much clearer in those circumstances.

Mr Pearce —Certainly.

Senator HUMPHRIES —What stage has the national catastrophic plan’s development reached?

Mr Pearce —There is a task force of the Australian Emergency Management Committee, under the ministerial council, that is working on that, along with a number of other things, at the moment. That plan is being developed as we speak.

Senator HUMPHRIES —Do we have an expected time frame for its completion?

Mr Pearce —I would have to take that on notice but it is in line with the AEMC’s meeting schedule for this year and the ministerial council schedule.

Senator HUMPHRIES —We were told at earlier estimates about the report that you prepared, Review of Australia’s ability to respond to and recover from catastrophic disasters, and we were told that we were not able to view that document. I take it that that is still the case.

Mr Pearce —That has not changed.

Senator HUMPHRIES —I have raised previously my concern about not being able to view the document and see what issues are raised in it with respect to planning for major national disasters. Can I ask you—perhaps this is a question for the minister rather than for you, Mr Pearce—whether the government would consider briefing this committee in camera on the terms of that report?

Mr Pearce —I think that is probably one that the minister would have to answer or take on notice.

Senator Ludwig —I am happy to take that on notice.

Senator HUMPHRIES —I have one last question. In Mr Ric Smith’s review of Australia’s homeland security arrangements on page 3 of his conclusions he says:

A more integrated national approach to emergency management would optimise efforts and address fundamental gaps such as the lack of effective arrangements to deliver community warnings and of a national emergency plan to deal with catastrophic disasters.

Does the government accept the sentiment of that concern raised by Mr Smith, and is that underpinning the approach being taken in the national disaster plan that I referred to before?

Mr Wilkins —I think the answer to the second part of the proposition, about the national catastrophic planning, is yes. We do share the need to get clearer about that. You will appreciate that one of the big issues is that the types of services that you would need in a catastrophic disaster are actually not owned by the Commonwealth. So if something really disastrous happened, and wiped out Sydney or something like that, you would be requiring Queensland and Victoria to cooperate with the Commonwealth to sort it out. Planning for that, and getting clear about what can be done under those circumstances, is very important.

In terms of warning, you are probably aware that the Attorney issued a statement today about what the Commonwealth is doing in relation to a telephone based emergency warning system in the wake of the agreement with COAG last year. I can certainly make that available to the committee and you can have a look at his statement today. We are currently working with the states and territories to put in place the fundamental infrastructure that is required to run a system like that, but once again you will understand that it is fundamentally part of the emergency management system, which is state based. So, whilst the Commonwealth can help, you need a cooperative system in a system of federalism like this, where a lot of the health capacity, the community services and policing are all run by state governments. So you cannot really have a plan that says the Commonwealth is just going to come in over the top because, apart from the defence forces, the AFP and some people like that, you do not have troops on the ground to actually do the services.

Senator HUMPHRIES —But you can if the states and territories and the Commonwealth agree on such a plan.

Mr Wilkins —Yes, absolutely.

Senator HUMPHRIES —The absence of such a plan at the moment is what is concerning.

Mr Wilkins —That is what we are looking at, yes.

Senator BARNETT —I think you were assessing during the cross-portfolio discussion an answer to my question regarding this overspend to 30 January of $57 million. I asked what the prognosis/estimate was through to the end of this financial year and for the next financial year.

Mr Pearce —At this stage it is very difficult to even predict what the final figure will be in relation to the run of natural disasters we have had, particularly since October last year, starting with the South-East Queensland storms. The way the natural disaster relief and recovery arrangements work is that expenditure can be claimed by a jurisdiction for as long as two years after the actual event impact itself, and then after that the time frame in which they need to be able to claim that back is not capped to a time. Therefore, they have time to work out exactly what their costs have been and then claim that back. To give you some idea of the costs, our current average is around about $65 million for an average year of NDRRA payments back to jurisdictions. We would anticipate this year and for the next couple of years we are going to far exceeded that, when you look at the Victorian—

Senator BARNETT —Can you provide an estimate?

Mr Pearce —No, not at the moment. As I said, it is very difficult to do that.

Senator BARNETT —Just a ballpark?

Mr Pearce —No. I would not want to do it.

Senator BARNETT —Is it double?

Mr Pearce —I would say you are going to be looking at double.

Senator BARNETT —At least double?

Mr Pearce —I would think double.

Senator BARNETT —Triple?

Mr Pearce —No, I am not going to go that far, but my guess is—

Senator BARNETT —But at least double.

CHAIR —I think he said he cannot provide an estimate.

Senator BARNETT —Is that for this financial year?

Mr Pearce —This financial year? It depends on what the claims are. We still have not had claims for the South-East Queensland storms yet. They are still being assessed, so I doubt it will go to that this financial year, but certainly in the next couple I have no doubt it will.

Senator BARNETT —To clarify, is it dollar for dollar with the state?

Mr Pearce —It is at the moment. It is a fifty-fifty split for all costs, particularly with the Victorian bushfires.

Senator BARNETT —So in the last two or three years it has been in and around $65 million a year.

Mr Rheese —The appropriation is $89.5 million for grants under the NDRRA—that is, the natural disaster relief and recovery arrangements. So far in 2008-09 we have reimbursed $57 million, but as Tony has outlined we expect to exceed the appropriation this financial year and next financial year as well. In 2006-07 over $150 million was reimbursed, primarily relating to Queensland expenditure following tropical Cyclone Larry. However, in the intervening year, 2007-08, over $17.5 million was reimbursed during the financial year. It indicates that payments under the NDRRA are very lumpy. They can be quite sizeable. In the current financial year, the $57 million includes a single payment of $50 million to Victoria for previous bushfires.

Senator BARNETT —Have any funds been paid for the current bushfire?

Mr Rheese —Not at this stage, no.

Senator BARNETT —We have got to be quick, so I will go to another question. The Gibson Quai-AAS Pty Ltd report delivered on 3 November 2008: do you have a copy of that report and can you table it?

Mr Pearce —No, I have never even heard of it.

Senator BARNETT —I will read it to you: ‘The purpose of the report is to analyse an analysis of the potential impact of an emergency warning system on the capacity of the national telecommunications network.’ This is in response to my question on notice No. 10 on 20 October, where you set out the list of consultancies by the department. That was one of those consultancies.

Mr Pearce —I will have to take that on notice, because it is not a report that I have actually heard of. We will chase it up and find out exactly—

Senator BARNETT —You or the department may need to take it on notice.

Mr Pearce —Between us we will find out.

Senator BARNETT —With the greatest respect, it is entirely relevant to the portfolio, Emergency Management Australia, relating to the telecommunications system. If you could take that on notice and provide a copy of the report, it would be appreciated.

Mr Wilkins —Senator, Mike Rothery could probably enlighten you a little about the nature of the report.

Senator BARNETT —I do not want to delay the committee, but thank you for being here. If it is possible to table the report, that would be appreciated.

Mr Rothery —The report relates to information that was sought by the department to inform the discussions that took place at COAG last year about whether an emergency warning system that operated over the telephone network posed any risk to overloading the network, particularly issues around triple 0 calls that might be happening simultaneously with the type of emergency that government agencies might want to send an alert on. It was a preliminary report and it has been used to inform the policy. I do not have a copy of the report with me and I am not aware as to whether there were any confidentiality issues. We are happy to take that question on notice and see whether there were any issues of sensitivity around that report.

Senator BARNETT —Hopefully, if it is not confidential, in accordance with usual practice you will be able to table the report.

Mr Wilkins —We will take it on notice.

Mr Rothery —I am happy to take it on notice.

CHAIR —Mr Rothery, while you are here, can I ask you some questions about this. This will apply right around the country, so in case of floods or cyclones in northern Queensland or the Northern Territory it would be able to apply?

Mr Rothery —The announcement that ministers made today relates to a number of measures that the government is taking to provide the states and territories with information for them to be able to set up systems themselves. So the actual outcome of the work that was announced today does not in itself produce a system that will deliver emergency calls, but what it does do is give any states that have set up a system or that intend to set up a system access to current, up-to-date telephone numbers but in a way such as to protect the privacy of the telephone subscribers, and to do it in a reliable way. At this stage we understand that the Western Australian government has a system that may be able to use these measures in very short order, so there is a combination here of issues around modification as to the Telecommunications Act as well some physical infrastructure that the Commonwealth was undertaking to build that will allow and enable the states and territories to deploy these systems if they so wish.

CHAIR —So this has actually been the subject of discussions since 2004; is that correct?

Mr Wilkins —It has been around since 2004, that is right.

CHAIR —Has it been on the COAG agenda since 2004?

Mr Wilkins —That I do not know the exact answer to. It has certainly been kicked around between the Commonwealth and the states for a considerable amount of time. It has been on the COAG agenda since 2008.

CHAIR —Why was there no agreement reached between 2004 and 2008? Do we know the history of that?

Mr Wilkins —We could try and piece it together, but it is very difficult. It simply seems that there was a failure of people to reach a decision for one reason or another. There were some technical reasons, there were some legal reasons, and I guess it might have been relationships between the different states and the Commonwealth as well. I do not want to write a history of this issue, but clearly it needed to be driven through COAG and probably it did not get that sort of attention.

CHAIR —Thank you for that information. If no other senators have questions, that concludes our consideration of outcome 2.

 [11.13 pm]