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Legal and Constitutional Affairs Legislation Committee
Old Parliament House

Old Parliament House


CHAIR: We will now move on to a panel session of the National Film and Sound Archive, the National Gallery, the National Library, the National Museum, the National Portrait Gallery and Old Parliament House.

Senator SINGH: I would like to ask some questions in relation to what is outlined in the budget about smaller government collection agencies' consolidation of back-office functions. It states the government will achieve a saving of $2.4 million over four years by consolidating the back-office functions of the Portrait Gallery, the National Gallery, the National Library, Old Parliament House, the National Film and Sound Archive, the National Museum and the National Archives. What functions constitute the back-office functions? Can someone answer that first?

Mr Sheehan : It might be easiest for the agencies if I answer the question, because we are leading it. The services will comprise payroll, accounts processing, ICT, corporate systems support, records keeping and purchasing.

Senator SINGH: Will there be staff reductions as a result of this consolidation?

Mr Sheehan : It is possible that it could lead to some staff reductions, but it is too early to say what they will be. The concept of the consolidation, I think, would see some of the staff who currently conduct the functions in the agencies being part of the shared service centre that we have in the Attorney-General's Department that will provide the services. A number of the people who conduct the functions would be part of that capability.

Just by way of background, we had already been setting up a shared services centre in the Attorney-General's Department to provide for shared services within the department. The plan is that we will transition the agencies in stages, starting with Old Parliament House and the National Portrait Gallery, then the National Film and Sound Archive in 2014-15, and then the other agencies in 2015-16. We would expect that there would be efficiencies from doing this, as you note from the budget papers, but I would also expect that, in delivering the services, there will be jobs at the service centre as well as jobs in the agencies to make sure that it is delivered seamlessly.

Senator SINGH: Starting with Old Parliament House and the National Portrait Gallery, what number of jobs will be lost?

Mr Sheehan : It is too early to talk about staff reductions. It is possible that there will be small numbers of staff reductions. That is all I would be able to say at this stage.

Senator SINGH: Have those agencies been consulted to determine which functions are best placed in this new shared services centre?

Mr Sheehan : The approach that we took was to look at which services we considered were the lowest risk, and we talked with the agencies about what those services might be. But there is an ongoing consultation process now, so the head of our shared service centre is meeting with all the agencies now so we can understand exactly how the services are delivered in the agencies and how we best transition that across so it is seamless for each of the agencies.

Senator SINGH: So you are going to save $2.4 million over four years, but at this point you are not quite sure what services will be affected and how that is all going to fathom out?

Mr Sheehan : We are sure of the services, but bear in mind that to deliver from the service centre all of these capabilities we will need to be clear with the agencies about which staff deliver what services in the agencies, how we best transition that across to the Attorney-General's department and then you would expect that there would be a requirement for staff to provide those services. It is possible that some staff will fall into the category of not coming to the service centre and not being redeployed elsewhere into an agency, and that is where you might see staff reductions. We expect that most would fall into the first two categories, hence we would say the numbers would be small.

Senator SINGH: Let us take Old Parliament House, because that is one of the first to be consolidated. What functions do some of the staff carry out in Old Parliament House that could be identified for moving into this shared service centre?

Mr Sheehan : I do not have that level of detail agency by agency, but our approach very much will be to look at payroll, accounts processing, ICT systems support, records keeping and purchasing. Each of the agencies will be carrying out those functions. They will not all be carrying them out identically or with the same resources or identical systems across the board, but my understanding from the consultation we have had is that there is a reasonably high level of consistency that should enable us to do that in a smooth manner.

Senator SINGH: You have come up with a figure—the $2.4 million—so you must have worked out what the services are in each of these agencies that will be cut, or consolidated, and what potential job losses will result. I am trying to work out some detail about how you have come up with this figure and what it will mean for all of these agencies and how it is really going to work.

Mr Sheehan : The approach has been to work on the basis that we can achieve a modest efficiency across all the agencies, and the approach was to say we could achieve an efficiency of around 10 per cent across all the agencies by bringing all of these functions together. I have just been reminded that Old Parliament House and the National Portrait Gallery have always had a shared service arrangement with their home department, so they are experienced in doing this. I would not talk in terms of job losses because that does not take into account those who would come across to work at the service centre or those who might be redeployed into other jobs. That does not equate to job losses. It is an efficiency that we will achieve rather than a number that represents job losses.

Senator SINGH: So how do you achieve the efficiency of $2.4 million if you are saying there are potentially no job losses?

Mr Sheehan : Ultimately you would have less people working on those functions across all of the agencies through the efficiencies achieved by the shared service centre, but it does not mean that everyone working on those functions would not have a job. A lot of them would work in the service centre and you would assume that some would be redeployed to other jobs as well.

Senator SINGH: Sorry, it is still unclear to me. You have fewer people working but you will not have job losses. And you will still achieve the $2.4 million saving.

Mr Sheehan : No. The point I am making is that a lot of the people will still be working in the same area but they will be working as part of the consolidated function, rather than out in each agency, as part of what they will be doing.

Senator SINGH: How will you ensure that the specialised roles which some of these institutions play will not be harmed by these cuts? Obviously, these are very specialised institutions.

Mr Sheehan : I am sorry, Senator. I might just ask you to repeat the very first bit of the question.

Senator SINGH: How will you ensure that the specialised roles that are carried out within these distinct institutions will not be harmed by this budget cut?

Mr Sheehan : That is the process that is going on at the moment, with our shared service centre talking to every one of the agencies about the way they carry out those functions so that we can transition across and so that they will continue to function. The back office functions that we are talking about here are relatively common functions across government agencies. We have a good degree of confidence that we can work with the agencies to deliver this effectively and successfully, and they will continue to deliver their services accordingly.

Senator SINGH: Were any of these agencies consulted before these cuts were announced in the budget?

Mr Sheehan : We have had general discussions with the agencies about how you might go about it. That would be the extent of the discussion.

Senator SINGH: So you mean yes, they were consulted?

Mr Sheehan : We had a general discussion about how we should go about it.

Senator Brandis: This was a budget measure developed, as these measures are. In developing the budget measures, the affected agencies contributed input.

Senator SINGH: Will the $2.4 million be a cut out of the individual budgets of these institutions?

Mr Sheehan : Ultimately, yes. The money will come from efficiencies from the administrative budgets of the agencies delivered through having a consolidation of the back office functions.

Mr Wilkins : Senator, you could construct that in different ways. It could be seen as a purchase of services from the shared service centre—so the money would stay but would go across as a spend—or you could take it out of the budget altogether and make sure that the services are delivered as a matter of fact. There are different ways of doing it.

Senator SINGH: So which way are you doing it?

Mr Wilkins : It does not matter. It depends.

Senator KROGER: My question is one for the National Gallery. I was wondering if someone could give me an update on their due diligence that has been undertaken to verify the origins of the artworks that were purchased through the New York dealer, Subhash Kapoor.

Senator Brandis: I wonder if I might be allowed to answer your question, Senator?

Senator KROGER: Yes, sure.

Senator Brandis: This is a matter which is currently occupying me. There is potential for a sort of quasi-litigious situation. I have asked for the National Gallery to look at the way in which this matter was handled. I wonder if I might be forgiven for not being more responsive, because I really do not want to put anything on the public record that might prejudice the National Gallery's position in relation to the ultimate disposal of this matter. I am happy to give you a private briefing, Senator.

Senator KROGER: I appreciate that. I guess I was interested in getting a handle on how difficult it is to ascertain the origins of art antiquities in these circumstances. But I am very happy to have a private conversation—

Senator Brandis: It can be quite an obscure thing. I am on the public record as saying—and I do not mind repeating it here—that I thought the decision at the time to proceed with the acquisition was incautious. Beyond that, the matter is pending. Proceedings are being instituted under the Protection of Movable Cultural Heritage Act, and I really do not want to say anything more, for the reasons I indicated.

Senator KROGER: On a similar subject, but not that particular issue, without naming them, are there dealers the gallery is very cautious dealing with or chooses not to deal with? What is your process for determining preferred dealers?

Mr Elliot : Obviously there are many dealers around the world. The gallery works with dealers in Australia and overseas. Their track record, of course, is very important. Their specialisation is very important. The industry itself has its own regulations and codes of conduct, within certain countries, including Australia. We are very careful who we deal with in relation to works of art we buy each year.

Senator KROGER: I understand that you have probably addressed this next question, but I have not had the benefit of sitting in this committee before. Do you put aside a certain part of the budget for Australian purchases that may be identified overseas that have been in a private collection and have come up? Do you put aside a budget specifically for those sorts of circumstances?

Mr Elliot : I think the best way to answer that question is to say that we purchase works of art for international, as well as Australian, artists and art. We have confidential strategies around each of our collecting areas. As part of our own research we think about what works might come up internationally that are important Australian works, and we try to set aside funds strategically if we think that is going to come up within a certain time frame, and we try to move our funds around to take advantage of works that might come up on the market or that we do know are coming up on the market.

Senator KROGER: I would imagine that would be quite difficult. Do you try to determine that over a number of years? I would think it would be very hard to say that you are going to spend X amount every financial year. How do you work that out? What sort of time frame do you use?

Mr Elliot : Sometimes the time frame might go over a number of years. The negotiations might go over many years. That comes down to timing. Sometimes that timing happens quite quickly and sometimes it might take years.

Senator KROGER: Have you ever had a problem where the budget has not been spent in a financial year and you have lost that and it has been reassigned elsewhere?

Mr Elliot : There are times when works were not successful. Sometimes that is at auction, or someone else secures that work for other reasons. Then, we have many ideas and many prospects on the horizon. Sometimes there is chopping and changing, but that is part of the business we are in—to try to get the best works for the National Gallery of Australia.

Senator WRIGHT: My questions are specifically around the National Film and Sound Archive. What steps have you taken at the NFSA to identify the operations and services that will be changed or streamlined to accommodate the reduced allocation in the budget, and can you confirm what that amount is over the forward estimates?

Mr Loebenstein : The NFSA will incur a slight loss in appropriation of about $331,000, I think it is, as an effect of the efficiency dividend and the slight increase in the efficiency dividend of 0.25 per cent. That is the efficiency dividend that was implemented last year, plus 0.25 per cent. Through an organisational restructure that already happened before the budget was announced, we are well placed to respond to a tighter environment. We were expecting a tighter environment as an effect of the general increase in costs, and the changed digital environment. So for 2014-15 I believe that we are well placed to deal with that without it having an additional effect on our programs or staffing levels.

Senator WRIGHT: Can you tell me if there are any specific functions or programs that will be impacted?

Mr Loebenstein : Not at this stage. As I said, the NFSA has undertaken a business review in the course of the last couple of months and has announced changes to programs, and is about to implement changes to programs, that are unrelated to this additional budget measure.

Senator WRIGHT: I have some questions that relate to the non-theatrical lending collection. First of all, I am interested in looking at the status of the collection and its future. How many borrowers use the collection?

Mr Loebenstein: It is difficult for me to establish right here how many borrowers use the collection, but I am happy to take that on notice. What I can confirm is that for the non-theatrical lending collection, which is a film collection that is kept at the National Film and Sound Archive, and licensed for the purpose of non-theatrical screening—so it is for community groups, film societies et cetera—there are about 1,600 transactions a year. This is a rough figure based on averages over the last couple of years. But I am happy to take it on notice and confirm the exact figures in writing of making our films available at a very low cost to registered film societies.

Senator WRIGHT: Thank you. If you could take on notice, then the break-up of the figures—the disaggregation into groups like educational institutions, cinema techs, film societies and other individuals, if it is possible for individuals to borrow from the collection. What is the cost of making the collection available to the public?

Mr Loebenstein: I would have to take that on notice.

Senator WRIGHT: If you come up with a figure, could you then explain how that figure has been arrived at.

Mr Loebenstein: Yes.

Senator WRIGHT: I would be interested to know how much of that cost is recovered from users of the collection. You indicated that there is some kind of fee, so if you could give me some information about that. Do you have that now?

Mr Loebenstein: I can take it on notice and provide the exact revenue figures. I do not have them here with me. In terms of a general statement, the program falls way beyond thresholds of cost recovery. So it is de facto funding or our regional screenings. We do charge fees, very modest fees, that enable film societies, community groups et cetera to screen those films, and particularly cover the licence cost of it so that they do not have to go off and licence those films individually from distributors and producers. However, this does not even come near cost recovery.

Senator WRIGHT: Personally, I am aware of the value of it, having lived in country towns at different times and having the local film society in a small town giving people access to cinema that they would not otherwise have. Have changes to the costs associated with the collection been considered? If so, what would the nature of those changes be?

Mr Loebenstein: Changes are planned for this particular collection. There is a variety of factors that have negatively impacted our ability to provide the program as is, unchanged in the future. On the one hand, the program is a legacy program, as are many other programs at the National Film and Sound Archive. As laudable as the program is—and I have been a strong advocate for this particular program, given the nature of the Australian community—it is a legacy program that was transferred to NFSA a couple of years ago via two other agencies, a state agency and a federal agency, without additional funding coming across for it. So our main cost factors here are obviously staffing to support that, technical costs to support the actual collection, and technical costs in terms of transferring the collections to formats that film societies and community groups can actually use, meaning contemporary digital formats. Last but not least there are increasing difficulties in renewing licensing for those films. The marketplace has changed a lot. While it was fairly common practice 20 years ago for distributors just to issue licences that enabled the NFSA or the predecessor organisations to acquire a licence to make films available for under $20 a screening, in perpetuity, Australia wide, this is not common practice any more. We are talking about a much more diversified and granular market here. So all of those factors combined have increased the burden of delivering this program. Also, with the films themselves, a large part of the collection is still on analogue 16 millimetre film. Those films have become very fragile and cannot be replaced, because there is not a single laboratory in our part of the world any more that can actually produce replacement copies.

We have announced that there will be changes to that program. First, internally, we have realigned our responsibility for the program, because we are looking at a realigned corporate structure. However, we have announced to the community of film societies and to clients at large that the program will continue as is until 30 June 2015. As of last week we have entered into a consultation process with our clients here, particularly through the Australian Council of Film Societies, to gain more insight and get their views on what kind of service delivery they will expect, and what kind of additional burden—as in, potential fee increases, contributions to those screening et cetera—the community is willing to make. I am happy to say that that consultation process has started successfully, with a very successful briefing for the community, and we look forward to discussing potential new ways for the program.

Senator WRIGHT: The question I had then was: will the films and videos in the collection be closed to the public? It sounds as if that decision has not been made, and indeed it sounds like you are envisaging perhaps continued availability but with different requirements or fees.

Mr Loebenstein: Yes, different requirements, and using different means and different pathways. The mission of the NFSA is not only to collect and preserve Australian screen heritage but also to share that screen heritage. However, we are looking at a very different environment for sharing, but we do have a strong commitment to regional Australia and to communities that do not have access to our regular cinema screenings.

Senator WRIGHT: It certainly sounds like there are some challenges in terms of preservation of the collection. So you are seeking consultation about that and coming to views about how that will be preserved into the future?

Mr Loebenstein: Correct. In terms of preservation we do have a preservation program that faces its own challenges. But in terms of the availability of the titles we definitely have to look at more format shifting. There are fewer and fewer places able to screen film and fewer and fewer films that we can make available, as a physical film reel. As regards general availability of titles, some of that is beyond our control because distributors may choose not to renew licences anyway, because they have a different business model for that, and they target the video-on-demand, iTunes or whatever platform you might be thinking of.

Senator WRIGHT: Regarding digitisation of the NFSA collection, can you nominate the funds you think will be available over the next five years to digitise the agency's collection?

Mr Loebenstein: That is very difficult to quantify as this point. Digitisation is a core element of our preservation strategy, and increasingly a core element of our acquisition and collection development strategy. Overall, around 12 per cent of the NFSA's total collection of more than two million items is digitised. A lot of that, however, is still images, posters et cetera. The real challenge for us obviously is the digitisation of motion picture film. We do contribute significant resources from both of our supply expenditures—our capital acquisitions budget for new works or for the maintenance of the collection and staffing expenditure to that area. To give you an overview, the biggest section in the organisation is our preservation and technical services section, which is largely made up of technical specialists working on this.

Senator WRIGHT: I have other questions but I will place them on notice.

CHAIR: Before we go to a short suspension, Senator Brandis wanted to correct an answer.

Senator Brandis: I want to correct two answers to Senator Singh. In the question Senator Singh asked me about reductions to the arts budget I said a number of times that the overall reduction to the arts budget over the forward estimates was 3.2 per cent. In fact, the overall reduction is 3.1 per cent. The figure 3.2 per cent is the reduction to the Australia Council budget.

Second, I was asked a number of questions about a letter from artists. The questions were put on the basis, which I assumed to be correct, that the letter was in fact from artists. In fact, on closer inspection, all 88 of the signatories to the letter describe themselves as either authors, writers or editors. While allowing for the fact that writing is an art form, I just wanted to make the point that not one of the signatories to that letter is from either the performing or the visual arts sector.

Senator SINGH: It is described as cultural vandalism.

Proceedings suspended from 11:26 to 11:42

CHAIR: I call the hearing of the Senate Legal and Constitutional Affairs Legislation Committee back to order. We have a program—and it is just one program, for those who are confused by it being repeated throughout the day—and it is group 1, group 2 and group 3. We have about eight hours of questioning. As a rough rule of thumb, we will look at about 2½ hours per program. That is not certain, but we will start getting anxious at those times, because people who have questions on group 2 and group 3 would not want to miss out.

We have a number of senators who have indicated they want to ask questions on all groups. Bearing in mind that each one is approximately 2½ hours, I thought we might do it in 15-minute segments and then keep rolling around trying to be fair in giving everyone a chance, recognising, with respect to the Greens, that the coalition and the official opposition have perhaps a slightly increased entitlement to questions. Mr Wilkins, once we have finished with a group, the relevant officers can go home. I am sorry we cannot tell the group 3 people that they will not be needed until X, but obviously it will be mid-afternoon at the very earliest.

Mr Wilkins : May I say thank you, Mr Chairman. I think that makes life a lot simpler from the department's point of view. I appreciate it.

CHAIR: We have changed the program at the suggestion of the department, which the committee was happy to agree to. In program 1.8, royal commissions, we have included all of the home insulation royal commission, the institutional responses to child sexual abuse and the trade union governance and corruption royal commission. So those three are all together under the royal commission heading. It also includes the Defence Abuse Response Taskforce.

Mr Wilkins : When we get to that, Chair, I would like to make a statement.

CHAIR: To the royal commission?

Mr Wilkins : Yes.


CHAIR: The first part is the cross-portfolio Strategic Policy and Coordination Group. We might just try to get rid of the first bit first. We will not deal with the royal commissions just yet. Then we will call upon you for a statement in relation to the royal commissions at that time. In relation to the 'corporate cross-portfolio, general—Strategic Policy Coordination Group', Minister, do you or Mr Wilkins need to say anything at the beginning?

Senator Brandis: I do not.

Mr Wilkins : No.

CHAIR: I have indicated to Senator Faulkner, who wants to ask about a program that is not strictly in this estimates—because it is not there, but I think he wants to find out why it is not—that he can go first.

Senator FAULKNER: This is a matter about which I have raised questions at this estimates before. Witnesses might recall it—it is the Open Government Partnership. This will only take a minute or two, so I do not think it is going to delay the committee. Mr Wilkins, can you confirm that the Attorney-General's Department is no longer the lead agency for this matter in government? As I understand, it is now the Department of Finance.

Mr Wilkins : That is correct.

Senator FAULKNER: Can you tell me just when that change was made—to transfer that responsibility to the Department of Finance? It only came to my attention very recently. I am assuming it is just a matter of weeks. Can someone confirm that?

Mr Wilkins : On 1 April, the Prime Minister wrote to the Attorney-General.

Senator FAULKNER: You have indicated that it is the result of a decision by the Prime Minister. Are you or the minister able to briefly explain what the basis for the change was? My questions in relation to this matter will now be asked to the relevant department, given that responsibility has been transferred. However, as some departmental resources were obviously involved in this, about which you, Mr Wilkins, have spoken in this estimates previously, I will put this question to you. The only other issue I am keen to follow up is what that transfer of resources might have meant and whether any staff have been transferred. First of all, though, if either the minister or the secretary is able to explain why the decision was made, that would assist.

Mr Wilkins : I do not think I can take you a long way on that. Where it should sit has been discussed both by this and the previous government. There were various people on the list and it was decided, I guess, that Finance had a wider view of information policy.

Senator FAULKNER: Thank you for that, Mr Wilkins. Can you help me any further with that, Minister? I appreciate that issues pertaining to government transparency, or open government, if you like, are issues that are of interest to a whole range of portfolios. It is certainly true, in relation to the Department of Finance, that they have responsibilities. If you are able to assist me any further, I would appreciate it, Minister.

Senator Brandis: I cannot really add to what Mr Wilkins has said. A decision was made that that is where it would sit within government. As you know, when a new government comes to office, a review is made of the administrative arrangements and the arrangements within the government as to where various tasks and functions sit, and that was one of the decisions made in the course of that exercise.

Senator FAULKNER: But those administrative arrangements in the large were obviously changed much earlier than 1 April 2014. In other words, that is a later change than most of the changes to administrative arrangements, which I am sure you would acknowledge. I just thought there may be a special reason as to why there was an awareness and, in your portfolio, why the changes were made. If there is not, I can try to establish it elsewhere. The point I am making is that most of the administrative arrangements—nearly all of them apart from this—were made very soon after the new government was sworn in. This one, as Mr Wilkins has said, was made on 1 April 2014.

Senator Brandis: I hear what you say. I can add to my answer that I understand that Senator Cormann, as Minister for Finance, was quite eager that policy leadership in relation to the Open Government Partnership lie within his portfolio.

Senator FAULKNER: Thank you for that. As I have indicated, I can certainly ask Senator Cormann and his department questions about this, and I do not want to delay this committee. I would ask the secretary if he is able to assist me—or if anyone else can assist me—with whether this meant that there were any transfers of staff involved, or was it effectively just an administrative function that goes from one agency to another?

Mr Wilkins : It was an express term of the change that resources did not change hands.

Senator FAULKNER: So no resources changed hands. What about the background work that had been undertaken in Finance? How is there an awareness in those circumstances in the agency that is newly responsible for the function? How is that dealt with? Was it dealt with?

Mr Wilkins : In any case where this happens, it would be consultations and discussions amongst officers and through the exchange of information, if appropriate, and files et cetera could be exchanged. I would imagine that that is what has occurred. I have not directly concerned myself with exactly what has been transferred.

Senator FAULKNER: So we do not delay the committee, could I ask you to take on notice for me—and of course you can only deal with your own agency—any resources or files, as mentioned, and the like that might have been transferred to Finance and whether that actually occurred. I appreciate the evidence you have provided, but I do not want to delay the committee. I am just interested in ensuring, if you like, that there is a continuity of agency or departmental action on these matters.

Mr Wilkins : I can get one of these gentlemen here, if you like, to tell you exactly what did occur.

Senator FAULKNER: That would be particularly helpful.

Mr Fredericks : I think part of the relevant background to your question in the fact that, in a sense, the work had been taken forward under the auspice of an interagency meeting, of which Finance was a part. Historically, there had been three interagency meetings to discuss this development, in which Finance was a full participant. In addition to that, I should just note that at the last major summit of the Open Government Partnership, which occurred in London in November of last year, Australia was represented by a representative of Finance. So Finance have been fully seized of this endeavour over the last six to nine months working with us, and that is the basis of their engagement to date and will be the basis of their engagement going forward.

Senator FAULKNER: I will place a question on notice. What information and material, if any, was involved in that transfer of responsibility? You mentioned interagency meetings. Is AGD still involved in any interagency meetings? Could you confirm that for me?

Mr Fredericks : Our expectation is that we will be.

Senator FAULKNER: Was that an expectation as opposed to a certainty? I noticed your use of language, Mr Fredericks. I always take account of the language you use.

Mr Fredericks : It is an expectation I expect to be realised.

Senator FAULKNER: I will not even ask you what that means. The interagency meetings involve AGD, Finance and which other portfolio?

Mr Fredericks : PM&C and Communications.


Mr Fredericks : Yes, sorry. DFAT and DRET as well.

Senator FAULKNER: Thank you for that. Finally, Minister, was there any proposal for you to attend the Bali meeting planned for 6 and 7 May? I think you are aware the Prime Minister decided not to attend. Given the role of your department, I wondered if there had been any invitation for you or an Attorney-General's department official to attend.

Senator Brandis: In relation to myself, I do not recall receiving an invitation but I will check to make sure that that is so. I will take that on notice but, to the best of my recollection, no. In relation to officers of the department, Mr Wilkins might be able to help you.

Mr Wilkins : Apparently, we did not attend. I am not aware as to whether we received an invitation; but we did not attend.

Senator FAULKNER: If there is any further information that you can provide the committee after checking, I would appreciate it. I thank the witnesses for that information. Appreciating that this agency is no longer the lead agency for this particular element of government, please follow those other matters through.

Senator KIM CARR: Minister, I draw your attention to a press release that you issued on 3 December, concerning execution of some warrants by ASIO. I do not want to comment on the merits of the legal matters, which are currently the subject of arbitration proceedings in The Hague and I do not want to comment on the allegations of spying that have been made by the government of East Timor. I do that in the context of a longstanding convention about these security questions. And I am not inquiring into the reasons the warrants were issued against East Timor's lawyers operating here in Canberra, because I understand you did state at the time that there were matters of national security involved. But I do note that Australia has been brought before the International Court of Justice, accused of breaching East Timorese sovereignty and related principles of international law—and the ICJ has made significant interim orders against Australia. The Prime Minister of Timor-Leste described the actions taken by the Australian government as—

CHAIR: Do you have a question?

Senator KIM CARR: Yes, the question is coming, do not worry. He said:

The actions taken by the Australian government are counterproductive and uncooperative. Raiding the premises of a legal representative of Timor-Leste and taking such aggressive action against a key witness is unconscionable and unacceptable conduct. It is behaviour that is not worthy of a close friend and neighbour or of a great nation like Australia.

Minister, given what has occurred in The Hague and given the statements by the Prime Minister of Timor-Leste, have you or the government since apologised for your actions against the government of East Timor?

Senator Brandis: Let me say three things in response to your question. Firstly, the answer to your ultimate question is no. Secondly, I should say that matters concerning Australia's relations with a foreign state are matters for the Minister for Foreign Affairs and, ultimately, the Prime Minister—not for me to comment on. Although, perhaps, if you want to ask that question next week in foreign affairs estimates, where I will be representing the foreign minister, I will feel able to respond with any additional observations she would wish to make through me. Thirdly, in relation to the operation conducted by ASIO, as you would be aware, I made a full statement to the Senate the day after that was conducted. That statement attracted no criticism or comment from the opposition.

Lastly, may I say that you used the phrase, 'Orders were made against Australia.' That is a little misleading. These were provisional measures or what, in the Australian system, we would call interlocutory orders. They largely, although not entirely, reflected undertakings that I had given to the ICJ in relation to the handling of material taken in those raids. You may not be aware of this, Senator, but it is not at all uncommon—in fact it is very normal—when interim undertakings are given for those undertakings to be converted into orders of the court. These were undertakings freely offered by me on behalf of Australia and they were embodied in orders of the court. To the extent to which the orders of the court reflected the undertakings I had voluntarily given to the court, it is something of a mischaracterisation to say that they were orders made against Australia. They were, effectively, orders Australia consented to. That is not the case in relation to all of the orders, I am at pains to point out, but it is the case in relation to most of it.

Senator KIM CARR: You made a couple of points that I want to take up, Minister. First, in regard to the jurisdictional issue about whether it is this committee or another committee, I will ask you: since the International Court of Justice was established in 1945, how many times has Australia appeared as a respondent in a substantive hearing before the court in The Hague—that is, to answer an allegation of breaches of international law? That is surely a matter for this department.

Senator Brandis: I will take that question on notice.

Senator KIM CARR: I do not have your legal training, but I am a student of history—and I do not recall us having to appear in the manner in which we had to appear this year.

Senator Brandis: As I said, I will take that question on notice. I want to make sure that the answer to the question you have asked is carefully considered.

Senator KIM CARR: I put it to you that this is the first time that Australia has been named as a respondent.

Senator Brandis: I have taken the question on notice.

Senator KIM CARR: My understanding is that this is the first time Australia has appeared concerning allegations of this type.

Senator Brandis: This case raises issues which, I am advised, have not been raised in other proceedings before the International Court of Justice or other international tribunals. Assuming that advice to be correct, what you say is correct—but it is also correct to say that, because this is the first case that has ever raised some of these issues, it is the first time any country has appeared to respond to those issues.

Senator KIM CARR: It is quite an achievement, isn't it, and an historic precedent—the embarrassment for this nation you have been able to achieve in the first few months of your term in office?

Senator Brandis: By the way, I can respond to your earlier question that I said I would take on notice. The answer to your question is no. This is a matter in which Australia is defending a suit brought by a foreign state. Australia is defending this suit, as you would expect, to protect Australia's national interests. No doubt the government of Timor-Leste is bringing this suit in the prosecution of what it believes to be its national interests. I do not think that it is appropriate for me to comment on the merits of a dispute in which Australia is involved, nor do I think, if I may say so, it is wise for you to do so.

Senator KIM CARR: I am just making the point about precedent here. Australia, it is my understanding, has actually been named as a respondent in earlier cases—the Nauru case in 1989, which was settled prior to substantive hearings, and the East Timor case brought by Portugal, which did not proceed because Indonesia chose not to appear. This is the first time that this has occurred under these circumstances. Therefore, I am saying to you that it is quite an achievement for you, Minister. It is quite an achievement, indeed.

Senator Brandis: In your question you identified two previous matters in which proceedings were commenced against Australia. They did not proceed to an ultimate determination. This case has not proceeded to a final hearing either. Occasionally, under international law, nations have disputes. That is why the international legal system exists. Any government of the day, regardless of its political complexion, will respond appropriately to protect Australia's national interests.

Senator KIM CARR: You mentioned the interim orders. My understanding is that there were quite substantial margins in the interim orders of the court of 12-to-four and 15-to-one majorities. Specifically—and you would agree with this, wouldn't you?—it was determined that:

By twelve votes to four,

Australia shall ensure that the content of the seized material is not in any way or at any time used by any person or persons to the disadvantage of Timor-Leste until the present case has been concluded …


By twelve votes to four,

Australia shall keep under seal the seized documents and electronic data and any copies thereof until further decision of the Court …


By fifteen votes to one,

Australia shall not interfere in any way in communications between Timor-Leste and its legal advisers in connection with the pending Arbitration under the Timor Sea Treaty of 20 May 2002 between Timor-Leste and Australia, with any future bilateral negotiations concerning maritime delimitation, or with any other related procedure between the two States, including the present case before the Court.

In a press release of 14 March this year you described this as a good outcome for Australia. How could you possibly regard that as a good outcome for Australia?

Senator Brandis: Because, as I went on to say in that press release, Senator Carr—I do not have a copy of it before me, but I remember it well—the first two of the three orders to which you have referred are orders that Australia in effect invited the court to make. You see, documents were taken under warrant by ASIO for reasons with which you do not quibble; but of course an issue then arises as to the handling of those documents in a way that is fair to parties to international litigation. So, in the course of the provisional measures hearing, I offered a suggestion to the court, through counsel, by way of undertakings as to the handling of those documents, and that is how the court accepted those undertakings. Other orders were sought against Australia in those proceedings which were not made. I have spent most of my adult life involved in litigation. Where there is a miscellany of issues in a complex case I know what a win looks like and I know that you do not necessarily win on every point. Just because you do not win on every point does not mean you do not regard the outcome as a successful outcome.

Senator KIM CARR: I see. If these undertakings that you made during your course of the mediation were such a great victory for Australia—

Senator Brandis: I think it is a satisfactory outcome. Other orders were sought which, in view of the undertakings offered, were not made.

Senator KIM CARR: Why did you make those undertakings at the time the raids were initiated on 3 December? Why did you have to wait for the proceedings before the court?

Senator Brandis: Senator, you give undertakings to a court in proceedings. The issue did not arise.

Senator KIM CARR: I see. Given you have said that you know what a win looks like and that you do not win every point, a person of your experience, any competent Attorney-General, would have anticipated the response of East Timor and the international community to the public rage that you authorised. An inevitable diplomatic row would follow from such rage. I wonder whether or not you would now agree that your reaction was, in fact, inept.

Senator Brandis: The answer to your question is no. You may not be familiar with the relevant provisions of the ASIO Act, Senator. I have become very familiar with them since I have been the Attorney-General. The Attorney-General is the repository of a statuary obligation to exercise a power, and that power is exercised according to certain specified criteria. In my judgment, on the particular occasion when authorisation was sought of me by ASIO I was satisfied that the grounds for the exercise of that power were clearly made out. It was not a borderline case. They were clearly made out for the purpose of protecting Australia's national security. So I exercised my statuary power, as I ought to have done, on the basis of the material that was presented to me. You say that there was a reaction from the international community. There has been a reaction from the East Timorese government. Senator Carr, you should not conflate the judgment of a majority of the International Court of Justice with the reaction of the international community. The judges of the International Court of Justice, like judges at any other court, do not speak for executive governments; they do not represent the opinion of the international community.

Senator KIM CARR: Minister, I cannot comment on what nature of the national security issue was.

CHAIR: Do you have a question?

Senator KIM CARR: My question is this: how do you respond to the charge that your actions have not only damaged our relationship with East Timor but also seriously embarrassed Australia internationally?

Senator Brandis: My response to that is that it is arrant nonsense. For an Attorney-General to appropriately exercise powers invested in him under the ASIO Act, on the application of ASIO, in a clear case of protecting Australia's national interest, is not only what the Attorney-General should do but what any competent Attorney-General invariably would do.

CHAIR: Has Mr Collaery taken some action? Is he a plaintiff or a respondent in any action?

Senator Brandis: I do not want to be a commentator on the case, but Mr Collaery is an agent, or a lawyer, for East Timor and I understand that he also represents himself to be the legal representative of an individual person who is known in these proceedings as witness K. There are issues which I do not want to go into at the moment about the various capacities in which Mr Collaery is an actor in these proceedings.

CHAIR: I was wanting to know if there are any legal proceedings afoot and, if so, where are they at?

Senator Brandis: I see. There are two legal proceedings afoot. There are the proceedings about which Senator Carr has asked me some questions, before the International Court of Justice. They are governed at the moment by the interim orders, as you and I would know them, or what the ICJ calls provisional measures, which Senator Carr read though apparently did not understand. Then there are related proceedings without reference to which the context of the ICJ proceedings cannot properly be understood. Those are proceedings in an arbitration between Australia and East Timor. The issues are complex but essentially the arbitration concerns the treaty between our two nations which governs rights of exploration in an oil and gas field in the Timor Sea, and in particular the delimitation of the maritime boundary, which is the big question in issue.

CHAIR: But there are no cases in Australian courts about ancillary matters involving this issue?

Senator Brandis: No.

CHAIR: This has nothing to do with anything and it is meaningless, but there was a Mr Collaery who was a Labor minister in the ACT government—is this the same Mr Collaery?

Senator Brandis: I know that Mr Collaery was at one time some years ago the Attorney-General of the ACT; whether he was a Labor Party politician or an Independent I am not sure. I suspect we are thinking of the same person.

CHAIR: I was just curious. What has been the department's financial position since the budget? Did you get an increase or a decrease? I have heard about the arts area, so I am more or less talking about the Attorney-General's area.

Mr Wilkins : Like every other agency, we have made some savings. We had some additional expense measures and we had some additional savings measures, and then there were some measures with no financial impact which were also flagged in the budget papers. Maybe if it is of some help I could go through those expense measures and those savings measures.

CHAIR: I was not after the detail—just as a total portfolio. I suppose with changes in branches and agencies it may not be easy to give a percentage up or a percentage down. Have you made some savings?

Mr Wilkins : Yes. I would say this portfolio has not actually done too badly in the current climate, in terms of the savings et cetera that needed to be made. Some have been made in the department and in the AFP. You have heard about the arts budget, and the Attorney spoke about that. In other areas, there has been need to look at, as well as some regulatory or deregulatory measures, some cost recovery measures.

CHAIR: Do you anticipate that there will be staff reductions in the department?

Mr Wilkins : I do. You need to take the royal commissions and the DART, the Defence Abuse Response Taskforce, out of contention because they artificially inflate the figures. They are shown notionally on the books of the Attorney-General's Department but not really. In 2013-14, we had 1,262 staff. We are expecting that to come down to 1,232 in 2014-15 and we are projecting that coming down to about 1,166 in 2015-16. I have had conversations with staff about the implications of this. I think it can be managed sensibly within natural attrition and with voluntary redundancies, and it is being done so. It is a significant reduction. As I have said to my people, it is also an opportunity to look at structural change. We are looking at things like span of control et cetera, amongst other things. It is probably something that can be managed without causing any loss in the efficiency and the effectiveness of the department. In fact, it would probably add to some of that.

CHAIR: You said you are looking at a new way of doing things. Is there anything that your department does that would be better done or equally well done by the states? I guess you would say that no-one could do it better or equally to what you have been doing, but are there elements of your department that are duplicated by the states?

Mr Wilkins : The states do most of what they do already. Take emergency management, for example.

CHAIR: I do want to go on to that.

Mr Wilkins : We do not do emergency management. We coordinate an increasingly complicated environment where there has to be interstate cooperation. Similarly with terrorism, where police forces are the first port of call. In a disaster situation, emergency management, bushfire brigades in the states and the territories, and the emergency management teams are the first ports of call. They are the people who handle those sorts of things. We have a fairly modest number of people who man the emergency management area and provide the value-add there. This is probably the correct role for the Commonwealth: coordinating that and also coordinating the expenditure of funds by the Commonwealth to the states in relation to recovery payments. The Commonwealth has a considerable stake at the moment, although there is a Productivity Commission inquiry into this in terms of recovery payments. Essentially, in an increasingly complicated environment where things happen across borders and things happen of a considerable size, the role of the Commonwealth is simply to coordinate efforts, maybe between the military and the state, the state emergency services, and maybe across borders in terms of cooperation between states in large conflagrations or floods.

I do not think there are too many areas where there is duplication between what we do and what the states do. You could argue that, in some areas outside of the department and maybe in the portfolio, there are areas of overlap and duplication—for example, between child protection and the family courts and how you deal with that type of issue. That is, if you like, a dysfunctional division of responsibilities. You could argue that. There may be some other areas of that sort.

CHAIR: Would you be looking at those sorts of things in the restructure of the department?

Mr Wilkins : Yes, I think you should be looking at those sorts of things—absolutely.

CHAIR: I will not take you further on that. Regarding Emergency Management Australia, I think you just said you do not have a big bureaucracy around that. Are you simply the payment agency? You deal with the money and coordination?

Mr Wilkins : We do two things, essentially. We coordinate a lot of the activity, particularly around national or international incidents, and it is not just fires and floods; it is all hazards. We are including things like health hazards or terrorism. It deals with a number of different things. The second thing is it undertakes the process of assessing and advising the minister in terms of triggering Commonwealth recovery paths.

CHAIR: Do you get a line item of money for emergency management? It might be difficult because you cannot anticipate which emergency, which cyclone or which flood, will happen. How does that work? We will go into this later for the detail, but I am wondering whether, overall, savings have had to be made or whether there has been any new arrangement with the states on emergency management payments.

Mr Wilkins : As a bureaucrat, I would describe it as a more sensible arrangement of assessing the impact of disasters. That has flowed through into some of the rules that have been used a number of times in terms of the AGDRP payments.

CHAIR: In your budget, do you get a line item figure?

Mr Wilkins : No, it does not work that way. In fact, there is a notional concept. There might be a notional amount in the budget. I am not sure; I would have to ask my CFO. There is such volatility in these payments that you cannot predict from year to year what it is going to be. It would be a bit of a nonsense to put a real figure in there.

CHAIR: Thank you for that.

Senator SINGH: I have a question for Senator Brandis. There have been reports of the Treasurer hosting a $50,000 taxpayer funded dinner and flying a personal chef to Washington. Obviously the Prime Minister has his own personal chef. Do you have a personal chef? That is a yes or no question.

Senator Brandis: It depends what you mean by a personal chef.

Senator SINGH: At taxpayer funded expense.

Senator Brandis: On occasions, my son and my daughter, both of whom are very good cooks, cook dinner for me—

Senator SINGH: I think you know what I mean, Senator Brandis.

Senator Brandis: but not at taxpayers' expense—no.

Senator SINGH: Have you ever had a personal taxpayer funded chef cook for you since you became Attorney-General?

Senator Brandis: Alas, no.

Senator SINGH: We will move on to your bookshelves. Are you satisfied with the quality of wood that was used for your second set of taxpayer funded bookshelves?

Senator Brandis: If you are referring to the shelves that have been installed in my office, yes, I am.

Senator SINGH: Are they big enough?

Senator Brandis: Yes, they are.

Senator SINGH: I would expect that, as you continue to purchase books, you might need more space.

Senator Brandis: That is true, Senator Singh. The Commonwealth Law Reports usually run to about three or four new volumes a year.

Senator SINGH: They do—even though they are all available online.

Senator Brandis: Yes, but I do not use online services.

Senator SINGH: How long were the bookshelves again? How many shelves?

Senator Brandis: I do not know. I could not tell you that. I can take that on notice for you. I wonder if you would allow me to make a point, however, that has been rather missed in the public discussion of this great cause celebre. When I asked that those bookshelves be installed, I did so because there have always been bookshelves in the Attorney-General's office in this parliament. But, since this building has served as Parliament House, there has been no Attorney-General on the Senate side of the building. The first senator to be the Attorney-General since the building was opened is me. So all I was asking be done was the installation of an amenity that has been availed of, uncontroversially, by every Attorney-General, Labor and Liberal, since the building has been in operation. I also say—and this has also not been adverted to in the public discussion—that when I asked for the shelves to be installed, I asked that they be installed at the lowest possible cost consistent with the standards required by the people who run the building.

Senator SINGH: Can you take on notice how long they are and how many shelves there are?

Senator Brandis: Sure.

Senator SINGH: Thank you. Have we asked you before about the cost of the bookshelves.

Senator Brandis: I believe you have and I think those answers have been provided on notice.

Senator SINGH: If not, that could be provided in that response.

Senator Brandis: No, I think we have already told you that.

Senator KIM CARR: They were provided by the department, weren't they?

Senator Brandis: Mr Wilkins may be able to elaborate on this. I understand there was a negotiation between the Attorney-General's Department and the Department of Parliamentary Services about sharing the cost.

Senator KIM CARR: A joint project, was it? A joint venture?

Mr Wilkins : I am happy to answer this again. This is the third time I have answered this question, but we can go over it again if you want.

CHAIR: It is a matter of great moment, Mr Wilkins! We must be very thorough.

Mr Wilkins : Fifty per cent was paid for by the Attorney-General's Department and 50 per cent was paid for by the Department of Parliamentary Services. The total cost of the shelving is $15,442. We paid for half of that and the Department of Parliamentary Services paid the other half. But that has already been provided.

Senator SINGH: But that is an over-cost, isn't it? That is not a standard cost for departmental bookshelves?

Mr Wilkins : I am not sure that there is a standard price for departmental bookshelves.

Senator SINGH: Was it compliant with building regulations?

Senator Brandis: I assume so—because it was authorised by the Department of Parliamentary Services.

Senator SINGH: Can you qualify that?

CHAIR: That is a question for another estimates committee, surely.

Senator SINGH: Could you take that on notice?

Senator Brandis: I think you should ask that of those responsible for the building standards of the building. I should hope it was compliant and I would expect so. But these do not belong to me; they belong to the public—whether or not they are half owned by the Attorney-General's Department and half by the Department of Parliamentary Services. In any event, they are a permanent amenity of this building. If I can put this in context: this permanent amenity to the building, which will be here for, literally, centuries, represents about a quarter of the cost of what your colleague Mr Burke, the former Minister for the Arts, spent on parties in three months last year.


CHAIR: We will move now to program 1.8, royal commissions. Before you ask your questions, Senator Singh, Mr Wilkins wanted to make a statement on this—or the minister?

Senator Brandis: Mr Wilkins is going to make a statement. There were some very misleading and false remarks made by the shadow Attorney-General this morning, so we are taking the unusual course of correcting the incorrect statements made by the shadow Attorney-General.

Mr Wilkins : I appreciate the opportunity to make a brief statement. I turned on the television this morning and heard speculation from various commentators on the funding of the child abuse royal commission and the funding of the home insulation royal commission, so I thought it would be useful for the committee if I just explained how the funding occurred. Let me say at the outset that there should be no suggestion that funding was taken away from the child abuse royal commission that it needed or without its knowledge. The child abuse royal commission manages its own budget. However, as Secretary of the Attorney-General's department I have responsibility for that expenditure as well, and that responsibility involves ensuring that taxpayer funds are used most efficiently and that where underspends arise those resources can be appropriately applied for other public purposes, consistent with the decisions of government.

Savings did arise, and they arose as a result of some capital fit-out works undertaken by the child abuse royal commission coming in under budget. Some $4 million was identified as a saving as a result of that. The chief executive officer of the child abuse royal commission has this morning confirmed to my department that the royal commission currently has sufficient money in capital and operating budgets to continue its work. Figures to the end of April 2014 show that the royal commission has a capital and operating budget of $82.7 million for this financial year, after the $4 million capital underspend has been made available, with expenditure of $57.5 million so far in this financial year.

The home insulation program royal commission has total funding of $20 million. The Attorney-General's portfolio is responsible for $6.7 million of this funding. So, it was split one-third, one-third and one-third between three departments. This portfolio is responsible for $6.7 million of the funding of $20 million. The portfolio was able to fund this through that identified $4 million savings in capital that I have just identified coming out of the child abuse royal commission. And an additional $2.7 million in departmental funding was also used as part of the AGD's contribution to the HIP royal commission. That was available because the Commonwealth had not incurred expected costs for its representation before the child abuse royal commission in 2013-14. The department also had money to appear before the royal commission, and that was not being utilised for that purpose fully. So we took that money, together with the $4 million from the underspend of the royal commission, and that funded our $6.7 million contribution to the HIP royal commission.

I confirm that both royal commission capital funding and the departmental funding was a result of savings—that is, money that has been appropriated and would otherwise have been returned to the consolidated revenue fund; it would not have been used. It was not a case of removing funding from an existing need and leaving that need under-resourced. In relation to the departmental funding. That $2.7 million was a savings from moneys not required for financial assistance and legal costs. It was never assigned for that purpose, and it did not impact on funding for other witnesses before the royal commission or the royal commission itself. At this stage the commission has not formally requested an extension, although the Attorney-General has indicated that he has had some discussions with the commissioner about this. When a request is made the request and the additional resourcing that may be required will be presumably fully and properly considered by the government, as the Attorney has indicated. So, that is the content of the statement. I hope that clarifies where the money came from.

CHAIR: Thanks, Mr Wilkins. It clarifies it to me, but—

Senator SINGH: Could we ask for a copy of that?

Senator KIM CARR: Can I have a copy of that statement, please?

Mr Wilkins : Sure. We will get you a clean copy.

Senator KIM CARR: I want to come back to some of the comments you have made. Perhaps we should clarify some matters, Minister. My reading of the budget papers is that the budget costs of the royal commission on the home insulation program is a total of—how much is that now?

Senator Brandis: I can tell you that the amount allocated for the home insulation program royal commission was $20 million. I think I can tell you that I received a telephone call from the royal commissioner several weeks ago indicating to me that he needed another six weeks in order to finalise the report. The reporting date was originally 30 June. That has now been extended by amendments to the letters patent to 31 August. But he did say to me in the course of that telephone communication words to the effect of, 'Don't worry, it's not going to cost any more money, because in fact we are likely to come in about $4 million under budget.' So, the best estimate of the royal commissioner to me some weeks ago was that the royal commission was likely to end up costing about $16 million.

Senator KIM CARR: I see. However, in terms of the budget papers, there was an original estimate of $12 million contained in MYEFO, which was expanded to the figure of $20 million. That is correct, isn't it?

Senator Brandis: I am not familiar with MYEFO, but I can tell you that the royal commission was established by a decision of the cabinet on 11 November last year, and the amount allocated for it was $20 million.

Senator KIM CARR: But in MYEFO the figure given was $12.2.

Senator Brandis: Well, I do not prepare MYEFO, but perhaps the officers can explain.

Mr Minogue : The figure of $20 million is the correct figure. The figure of $12-odd million relates to the costs of the home insulation royal commission itself. The make-up of the additional sums to get to the $20 million is the costs of financial assistance for potential witnesses before that royal commission and the costs to the Commonwealth as a party before that royal commission. Those taken together equal the $20 million. So, it is $12-odd million for the royal commission itself and $2.4-odd million for financial-legal assistance for witnesses. And, for the Commonwealth as a party, some $4 million was budgeted.

Senator Brandis: And Senator Carr, that is the way in which the operation of these royal commissions is apparently accounted for . The total cost to the Commonwealth is broken into those three categories: the running costs of the royal commission, sometimes called the capital cost; the provision of legal assistance, in the case of the home insulation royal commission, to affected families and also to some of your former ministerial colleagues; and the cost to the Commonwealth of appearing by counsel before the royal commission.

Mr Minogue : And I will just add, if I may, that $1 million was appropriated to the Department of Finance for the costs of former ministers' representation.

Senator KIM CARR: That is on top of the $20 million?

Mr Minogue : No, that makes up the $20 million.

Senator Brandis: That was the cap, Senator. The cabinet was very firm, because we live in this budget emergency, that this was not to cost more than $20 million and the costs were to be offset from elsewhere within government. And, as Mr Wilkins has explained to you, part of the offsetting costs were offsets within the Attorney-General's Department.

Senator KIM CARR: The answer to question on notice F34 states:

$6.7 million of the cost for the Royal Commission into the Home Insulation Program will be met from reallocations in the existing resourcing of the Attorney-General’s Department.

And then the response to question on notice number 16 to this committee is:

The funding requirements of the Royal Commission into the Home Insulation Program (RCHIP) have been met through a contribution of equal amounts of $6.7m from the Attorney-General’s Department …

—which is consistent with what the Secretary has told us today—and that, in relation to the department:

$4 million was redirected from savings achieved in the 2013-14 capital budget of the Royal Commission into Institutional Responses to Child Sexual Abuse …


$2.7 million was redirected from funding provided to the Department and not required in 2013-14 for financial assistance …

Would you agree with those words?

Senator Brandis: I do. That is exactly what Mr Wilkins just told you.

Senator KIM CARR: How did you know, in the middle of the financial year, that the $4 million would not be required for capital?

Mr Wilkins : Because you can project.

Senator KIM CARR: So, you projected in the middle of the year that there would be no requirement for capital?

Mr Wilkins : Yes, you can do that. That is how you manage budgets.

Senator KIM CARR: Sorry—can you repeat that?

Mr Wilkins : That is how you manage budgets—by making forward projections.

Senator KIM CARR: You have a bit of a guess, do you?

Senator Brandis: Senator Carr, are you deliberately trying to be funny?

Senator KIM CARR: This is not a committee where there is much humour, I have noticed—other than your answers, Minister!

Senator Brandis: Now we know how the country ended up with $667 billion worth of debt, if that is the level of sophistication of your budgeting.

Senator KIM CARR: Well, let's just go through the sophistication of your budget analysis, Minister, because you made a number of statements to me, at this committee, in February, which were clearly misleading. You made a number of assertions to this committee about the way in which this royal commission is to be funded.

CHAIR: Let's have a question. Is there a question?

Senator KIM CARR: And I think we need to actually look at that in some detail.

CHAIR: Is there a question?

Senator KIM CARR: Yes there is.

Senator Brandis: May I respond to that allegation?

CHAIR: Well, it is an allegation, and they are not going to be allowed—

Senator KIM CARR: I would like to know what your response is.

Senator Brandis: Well that is a question.


Senator Brandis: This is the answer, and I am reading from the Hansard, page 38, Monday 24 February:

Senator KIM CARR: Has there been any offset in any other royal commission, for instance?

Senator Brandis: No.

As the Secretary has just told you, that is absolutely correct. There was no offset from any other royal commission. It goes on:

Senator KIM CARR: So there has been no that money that was previously allocated for the royal commission into institutional responses to child sexual abuse?

Senator Brandis: It has been absorbed by the department itself, I am told—

exactly what Mr Wilkins just told you, Senator. And I went on to say:

I will ask Ms Glanville to answer that question. As I understand it, no money has been taken away from anywhere else, but there was an underspend that was reallocated.

That is precisely what Mr Wilkins has just told you. That was my evidence, and it was precisely correct.

Senator KIM CARR: You indicated that there was a decision made to divert $6.7 million from the royal commission.

Senator Brandis: It was not diverted. You keep making this false assertion, even though you have been told by the Secretary what happened. The money was not spent.

Senator KIM CARR: Who made the decision to take the $6.7 million?

Senator Brandis: The decision was made by the cabinet that one-third of the $20 million that the royal commission was budgeted to cost would come from the Attorney-General's Department, and it did.

Senator KIM CARR: Well perhaps I could ask you, given that the budgetary arrangements for the department seem to be working on projections, how many witnesses have given evidence so far into the royal commission into institutional responses to child sexual abuse?

Mr Wilkins : It might be helpful just to expand: the reason you can be confident about this is that it is a fit-out issue. The $4 million is money left over from fitting out. At the beginning of a royal commission you fit it out. You can be fairly confident if it is not done in the first several months that it will not be required. You can be fairly confident of that. The $2.7 million we were projecting. And it became fairly obvious that there was not going to be that much demand and we absorbed any risk of any over-run in the department.

Senator KIM CARR: I see.

Senator Brandis: That is what competent governments do, Senator Carr. When the money is not spent it gets returned to the department, where one of two things happens. Either it is allocated for other purposes or it is returned to the bottom line. On this occasion the money that came back to the department because it was not required by the royal commission into child abuse was reallocated.

Senator KIM CARR: How many witnesses have given evidence so far into the royal commission into institutional responses to child sexual abuse?

Mr Minogue : To follow up on the Attorney's answer, the $2.7 million was money for the Commonwealth for its own appearance before the royal commission, not for any other witnesses. But in relation to your specific question on the number of witnesses, I understand that as of 20 May there have been 58 witnesses before the home insulation royal commission.

Senator KIM CARR: I have asked you about the child sexual abuse royal commission.

Mr Minogue : I beg your pardon.

Senator Brandis: The CEO is here, Senator, if you want her brought to the table. She would be, I dare say, in the best position to answer your questions.

Senator KIM CARR: I do not care who answers, as long as I get a straight and honest answer.

Senator Brandis: Well, you have got nothing but that so far, and you do not seem to be getting anywhere.

Senator KIM CARR: That remains to be seen; that is why we are here.

Senator Brandis: Well, you have put a proposition to me, I have quoted word for word from the answers I gave you last time. The Secretary has explained how this all works. You have now moved on to something else, so that is fine. Ms Dines can answer your question about the number of witnesses.

Ms Dines : In the course of the 11 hearings of the commission there have been 186 witnesses. A feature to note about this royal commission is that many of the witnesses are actually witnesses from institutions and therefore the anticipated call on government funding to provide support to witnesses has not been as great, because those witnesses have been taken care of by the institution. So the victim or survivor witnesses do need to have recourse to the Commonwealth funding, but in our experience the majority of witnesses have not been required to have recourse. So some of the original budget estimates were actually more than our experience has shown we needed.

Senator KIM CARR: Thank you. How many more witnesses still wish to give evidence?

Ms Dines : The number of witnesses who will give evidence really depends on the case studies that the commissioners select for public hearings. At this stage it is not possible to determine that. Certainly there is a different category of victims or survivors who wish to tell their story in a private session. Those people are not covered by the funding that is available from Commonwealth legal and financial support to witnesses.

Senator KIM CARR: So you really do not know?

Ms Dines : Sorry?

Senator KIM CARR: You do not know. 'It is not possible to determine' means you do not know?

Ms Dines : It is not possible to determine at the moment how many more public hearings the commissioners will decide to do and how many witnesses will be called in those hearings, and how many of those witnesses would require assistance. In our experience, the current budget estimates are generous and are sufficient to meet the anticipated need.

Senator KIM CARR: How many applications for legal assistance for witnesses wanting to appear before the royal commission into child sexual abuse has the Attorney-General's Department received?

Mr Manning : We assess the applications for legal financial assistance, and we have approved 72. We might have a small number in train that are currently being approved, but there is no great backlog.

Senator KIM CARR: I just want to be clear about this; everybody who has approached you for support has been approved?

Mr Manning : I am not sure about that. I am told 'yes'. Ms Quinn my colleague will come—but yes.

Senator KIM CARR: Is that yes?

Mr Manning : Yes.

Senator KIM CARR: What process did you undertake to reach the conclusion about the approval process? How is that actually done?

Ms Quinn : The process for witnesses who are appearing at a royal commission is that we receive an application, often submitted by the legal representative on behalf of the witness. They will outline an estimate of the work that they are going to undertake and the period for which the witness has been asked to appear, and we will agree those parameters with the legal representative. On completion of the work they will submit an invoice direct to the department, and we pay that direct to the legal representative.

Senator KIM CARR: So, how can you—

CHAIR: Thank you, Senator Carr. That is the end of your 15 minutes. Curiously, it segues nicely into the questions I have, but on a different royal commission. I am just wondering whether you could indicate to me how many witnesses have sought legal representation costs in the insulation royal commission.

Mr Wilkins : I am not trying to prevaricate, but it would be the sum of a number of different figures.

Mr Minogue : I do not think there is a consolidated figure, unless the legal assistance side—

CHAIR: How many people? That was the question.

Mr Minogue : There were 58 witnesses. Some were former Commonwealth employees, who would have approached their own departments under the legal services directions that apply to Commonwealth employees engaged in legal actions or inquiries. There would have been some private witnesses who would have gone through the conventional legal assistance process that Mr Manning and Ms Quinn were outlining. And then there were the former ministers, who would have availed themselves of the parliamentary entitlements regulations regime, which is legal assistance for former ministers, in relation to acts arising under their ministerial duties.

Mr Wilkins : So, to give you the number you are after, Mr Chair, we would need to get those three things and add them together.

CHAIR: Well, I was more interested in the payments made to former ministers. Do we have a list of which former ministers sought legal assistance, how much they were, and who they were represented by? Were they represented by solicitors, or junior counsel, or—

Mr Minogue : We do. I think there were three former ministers who have availed themselves—

Mr Wilkins : This is public information.

Mr Minogue : It is public information. Under the parliamentary entitlements regime the Attorney will ultimately table a statement of approvals and expenditure, but there were three former ministers and the former Prime Minister. So, that is four. In terms of who their representatives were, they were represented by a combination of solicitors and counsel—counsel appearing at the bar table. In terms of the amounts, we would not generally disclose that prior to the Attorney's tabling that statement, because of commercial-in-confidence and other considerations. But I am happy to take that question on notice.

CHAIR: Were all former ministers represented by QCs, or SCs? In Queensland they may well have been QCs.

Mr Minogue : They were all represented by counsel. I do not have, in the notes I have, whether they were represented by silk. I suspect that two of them were silk, but I do not have that information.

Senator Brandis: Certainly Mr Rudd was; we know that.

Mr Minogue : Yes.

CHAIR: And you are telling me that at some stage in the parliamentary process the Attorney will table in the parliament a list of the payments.

Mr Minogue : Yes. Under the normal parliamentary entitlements regime, parliamentary entitlements for ministers and former ministers include support for legal actions they are involved in. That is ultimately a process whereby the Attorney tables information before parliament in accordance with those regulations.

CHAIR: This has not been retrospectively changed like other such things, Senator Brandis?

Senator Brandis: No. I think that direction has been in being for quite a long time.

CHAIR: It is just that there is a tendency under this government to retrospectively sort of change arrangements.

Senator Brandis: Payment to legal practitioners has been tabled in the parliament for many years.

CHAIR: Is there a means test on ministers? If you happen to be a multimillionaire, are you still entitled to—

Mr Minogue : No, I do not think there is a means test. It is actually administered by the Department of Finance, being the relevant agency and minister that looks after members and senators. I do not think there is a means test, but certainly there is a consultation process between ministers and agencies to assess whether what is being sought is reasonable.

Proceedings suspended from 13:00 to 14:02

CHAIR: I will call back to order the Senate estimates hearing of the Legal and Constitutional Affairs Legislation Committee. We are dealing with the affairs of the Attorney-General, and when we broke at one o'clock I was asking some questions of legal payments for ministers involved in the home insulation inquiry. Did you indicate to me how many ministers had applied for assistance?

Mr Minogue : I will expand on my answer a little. Four former ministers have appeared before the royal commission, but eight former ministers who had applied for legal assistance under the parliamentary entitlements scheme. There was also discussion about whether they were represented by a counsel or solicitors. I can inform the committee that former Prime Minister Kevin Rudd was represented by Bret Walker SC and Martin Burns QC; former Treasurer Swan was advised by counsel Mark Plunkett, although he did not appear. The former Prime Minister Julie Gillard and Lindsay Tanner were both represented by the same counsel—the three were Nicholas Owens, Bruce McClintock SC and Noel Hutley SC—in relation to legal advice. There were no appearances by either of those ministers. We do not know of any application or representation for Senator Wong. Former Minister Garrett was represented by Antony Whitlam QC. Former Minister Arbib was represented by Adam Pomerenke QC. We do not have any information in relation to former Minister Combet.

CHAIR: Four of those who had legal assistance were not called before the commission?

Mr Minogue : That is right. If they were called, they appeared.

CHAIR: So they are entitled to legal advice although they are not part of the commission. Had they been advised by the commission that they might be required?

Mr Minogue : They might have been interviewed by the commission.

CHAIR: It looks like a field day for silks! Do all people at the child abuse royal commission all appear with QCs?

Mr Minogue : That is a question that I would probably defer to the legal assistance side. They are not former ministers and so there are different considerations.

CHAIR: So there is one rule for former ministers and another rule for people who have been abused

Mr Minogue : No, not at all. It is just that former ministers are entitled, under longstanding regulations governing parliamentary entitlements, to legal advice and representation in relation to matters arising during their time as a minister.

CHAIR: Mr Manning, or Ms Quinn, are you able to tell me the level of representation for those being paid for by the taxpayer at the child abuse royal commission?

Mr Manning : We do not have that level of detail. But I think it is worth noting that, under the arrangements in relation to the royal commissions, the non-statutory scheme, there is a set rate at which legal representation can be paid, which may in some cases limit the legal representation.

CHAIR: So people appearing who apply for assistance are told that they get so much a day or so much for the appearance, or whatever?

Ms Quinn : Yes.

CHAIR: That is interesting. You have indicated, Mr Minogue, that we will get those details later on. Is there some rule around whether you can get senior counsel or junior counsel solicitors, or is it just whatever the prospective witness might think he or she needs?

Mr Minogue : The former minister applies for assistance under the entitlements regime. That is administered by the Minister for Finance. The minister consults with the Attorney-General as to what is reasonable and appropriate, and then a determination is made.

CHAIR: In a rare event, at lunchtime I just happened to be watching Sky News and noticed Mr Dreyfus saying that in the time he was Attorney-General he signed off on either dozens or many—I am not sure which word he used—former Howard government ministers who were seeking legal aid. I was wondering if you might be able to indicate to me, perhaps on notice, how many applications Mr Dreyfus approved in the time he was Attorney-General between February 2013 and, I assume, September 2013.

Senator Brandis: We can do that. Of course it may be that Mr Dreyfus had in mind as well the period during which he was Special Minister of State.

CHAIR: I think the transcript would show that he said, 'As Attorney I approved these.'

Senator Brandis: I see.

CHAIR: I just want to know is how many he signed off on. I do not need names, obviously, and you probably would not give them to me if I did ask. As I heard his interview, it sounded like there was a big number. But I cannot recall.

Senator Brandis: Mr Dreyfus sometimes does not choose his words very carefully, I am sorry to say.

Senator KIM CARR: And you do?

Senator Brandis: Yes, I do.

Senator KIM CARR: Oh, really?

Senator Brandis: But we will check so that we will not be lost in the fog of rhetoric.

CHAIR: If you heard what he said about you, Attorney, that would have doubled your confirmation that he does not choose his words terribly well. Could I ask that you make a copy of the Secretary's statement at the beginning of this session available to Mr Dreyfus, because again he was propagating the sorts of facts that the Secretary's statement was intended to—

Senator Brandis: I am happy to do that. The record is the record. Certain statements were attributed to me, which are recorded in Hansard. What was attributed to me is not what Hansard shows that I said. If there were any remaining area of doubt it has been removed entirely by the Secretary's statement. As I say, the record is the record and if statements are being made that are not consistent with the record, then people can arrive at their own conclusions.

Senator KIM CARR: We should get a chance to examine that. When we finish we will have the chance to examine that.

CHAIR: You are out of order, Senator Carr. That has done my time.

Senator Brandis: Chair, I would like to correct the record in relation to an answer I gave in the arts estimates, if that is convenient. It will not take me long, I will confess that this was an error entirely of my own fault to which Senator Faulkner has been good enough to direct my attention. I said that Mr Abbott was the first Prime Minister to have published a book prior to being Prime Minister. Shamefully, I of all people should not have made this error. I have neglected the very important corpus of works of the second Prime Minister, Alfred Deakin who published five books before he became Prime Minister, namely: a play, Quentin Massys: A Drama in Five Acts which was published in 1875; a work called A New Pilgrim’s Progress that was published in 1877; a book called Irrigation in Western America, so Far as it has Relation to the Circumstances of Victoria, which was published in 1885; another book on irrigation called Irrigated India: An Australian View of India and Ceylon, Their Irrigation and Agriculture, which was published in London in 1893; and Temple and Tomb in India, a book about India which was published in 1893. Senator Faulkner has also kindly pointed out to me that Sir George Reid published something called an essay on 'New South Wales, the Mother so long of the Australians' in 1876. I am indebted to Senator Faulkner for pointing those matters out to me

Senator FAULKNER: The Mother Colony of the Australians. You cannot even read my own writing.

Senator Brandis: I can always follow your sculptural and carefully expressed language, but I cannot read your handwriting.

Senator FAULKNER: Clearly.

CHAIR: Thank you, Attorney. I am sure the administration of governance in this country has benefited greatly from you correcting the record on those very important facts.

Senator KIM CARR: I was seeking advice on the number of witnesses who have given evidence. We were told there were 186, and on how many more witnesses would like to give evidence we were told it is not possible to determine that number, is that correct?

Senator Brandis: I think the only answer to your question is that this is a royal commission that, at the moment at least, is due to wind up its hearings at the end of next year and report in 2016. Assuming that there is no extinction of its hearings, I do not think it is possible in May of 2014 to say with any certainty how many witnesses are going to appear before it in the next 20 months or so. As a matter of common sense, of course not.

Senator KIM CARR: Is it true that the budget has been calculated on the basis of how many witnesses will appear?

Mr Wilkins : No.

Senator KIM CARR: It is not true.

Mr Wilkins : No.

Senator KIM CARR: Let me go to your statement, with regard to this clarification that you sought to make, Mr Secretary. You said: 'In relation to the departmental funding, $2.7 million was savings from moneys not required for financial and legal costs that we expect to be incurred by the Commonwealth as a party to the royal commission. It did not impact on funding for other witnesses before the royal commission or the royal commission itself.' Is that the statement you made? Have I accurately presented that?

Mr Wilkins : Yes.

Senator KIM CARR: But, in answer No. 16 to the questions on notice, your department has told me that $2.7 million was 'redirected from funding provided to the department and not required for 2013-14 for financial assistance for legal costs and related expenses for witnesses'.

Mr Wilkins : Yes, but that is just the way it is described. It is actually money that the Commonwealth spends on the Commonwealth's own appearances before the royal commission.

Senator KIM CARR: So the Commonwealth is now a witness?

Mr Wilkins : No, the Commonwealth has a right to appear, as it does before any of its royal commissions—as it did before the bushfire royal commission.

Senator KIM CARR: So why does the budget paper refer to expenses for witnesses?

Mr Wilkins : I do not write the budget paper. I will let Mr Minogue explain the vagaries of finance-speak.

Senator Brandis: Can you direct us, please, to the page of the budget papers and the item number?

Senator KIM CARR: It is not just once.

Senator Brandis: One example will be fine.

Senator FAULKNER: I might point out, Mr Wilkins, that, if Mr Minogue is able to explain this, it will be a first in the history of the government of Australia. Good luck.

Senator KIM CARR: Let me assist you, Mr Minogue. If we take the budget papers from 2013-14, there is a table published there, 1.3, 'Expenses'.

Senator Brandis: This is the 2014-15 budget.

Senator KIM CARR: I understand that. I am going to make the point to you in a moment. It gives financial assistance towards legal costs and related expenses including expenses for witnesses to the Royal Commission into Institutional Responses to Child Sexual Abuse. It then goes on with the figures appropriated: $14 million, $14 million and $14 million. Then we go to MYEFO. For the Royal Commission into Institutional Responses to Child Sexual Abuse the figures are listed there, but then there is another one that gives expenses for witnesses to the royal commission and the figure has been reduced to $11.6 million, $11.6 million and $11.6 million in the out years. If we go to the budget papers themselves, once again there is a reference to the financial assistance towards legal costs and related expenses for witnesses to the Royal Commission into Institutional Responses to Child Sexual Abuse, and that is presented as $11.6 million, $11.6 million and $11.6 million. I take it that is the amount of money that the secretary referred to as the $2.7 million reduction.

Mr Minogue : I think the way the response to the question on notice reads does not sufficiently clarify that the $2.7 million does not come from that line item that you are talking about.

Senator KIM CARR: Can I get you to clarify—it does come from that?

Mr Minogue : It does not come from that line item. There are three core elements of funding towards the royal commission that the Attorney-General's portfolio is responsible for. One line is the funding for the royal commission itself and its operations, and the CEO will be able to talk about how the commission itself manages its own budget. The second item is financial assistance for witnesses appearing before the royal commission, and that is the financial assistance, legal aid and legal assistance that Mr Manning and his colleagues are able to talk about. Then there is the third element, which is the Commonwealth as a party before the royal commission. That is the source for the $2.7 million that was unspent and so was available for other legitimate purposes of government. The response to the question on notice does not identify that that $2.7 million was for legal costs and related witness expenses for the Commonwealth's appearance. That is why in the secretary's statement he clarified that. So, to the extent that the response to the question left that open, it warranted further clarification and that has been given.

Senator KIM CARR: Would it be true to say that this is an additional amount of money?

Mr Minogue : No. On the question of how that is achieved and how the Commonwealth knew that it was not going to spend that $2.7 million on its own appearance before the royal commission, the Commonwealth has sought and was granted general leave to appear before the Royal Commission into Institutional Responses to Child Sexual Abuse as a general right. So, where an interest of the Commonwealth arises before that royal commission, the Commonwealth could seek to appear before that commission to either lead evidence or make submissions. It has not done so at this stage, quite properly, because the way the commission is operating is looking at particular institutions that are of interest to it, based on evidence the commission itself gathers about institutions it wants to examine, and taking evidence from victims and survivors and also from the managers or operators of those institutions.

Were a Commonwealth institution to be examined by the commission, then the Commonwealth would certainly need to appear to lead evidence around what it did or did not do in relation to that institution. Where there were recommendations or material coming from the witnesses who spoke of their experiences in that institution, the Commonwealth would need to be in a position to respond to that. Because that has not happened to date, that is why the funding was made available for the Commonwealth to do that. It was available for redeployment.

Senator KIM CARR: Explain to me, then, why question on notice No. 16 states 'expenses, legal costs and related expenses for witnesses'.

Mr Minogue : Because there are potential Commonwealth witnesses—but I do acknowledge that it was more open than it should have been; hence the clarification.

Senator KIM CARR: It is exactly the same wording in all the papers.

Mr Wilkins : I think what has happened is that we have just used the description in the budget papers, which, as I say, is misleading once you hear the explanation of what the money is actually for.

Senator KIM CARR: It is not misleading; it is what the budget papers say.

Mr Wilkins : Well—

Senator KIM CARR: It is not misleading at all.

Mr Minogue : But what the response does not do is tie that back to the Commonwealth's appearance as a party, which is where the $2.7 million comes from. The $11 million that you refer to in the budget papers now is not affected and is not related to that money at all. What is relevant is the Commonwealth representation, which is a separate line item.

Senator Brandis: Just because you do not understand it, Senator Carr, does not mean that it is misleading. Perhaps it is just that you are a little dim.

Senator FAULKNER: To be fair, I think the witnesses at the table, Senator Brandis, have acknowledged that it is at best a very imprecise use of the English language. At worst—and they have used the term 'misleading'—I would have used the term 'just plain wrong'. So I do not that is a very fair intervention from you.

CHAIR: Is there a question here? We are here to ask questions.

Senator KIM CARR: There is a question. In the 2013-14 budget a figure of $14.03 million is allocated for legal assistance for survivors of child abuse appearing before the royal commission and administered by the Attorney General's Department. In MYEFO the figure is $11.632 million. Can you explain to me the difference?

Mr Wilkins : Yes, we can. Can I get Mr Manning to explain it to you?

Mr Manning : The $14.032 million per year is the original appropriation for legal and witness expenses, the category we were discussing earlier. In January of 2014, the full amount for witness expenses of $2.4 million was transferred from the department to the royal commission to be administered by the royal commission. That was done at the request of the royal commission because they thought it would make it easier for potential witnesses who were approaching the royal commission to just have to deal with one entity in relation to that potential entitlement.

Senator KIM CARR: Is this $2.4 million that you transferred to the royal commission different from the $2.7 million that has been referred to in question on notice No. 16?

Mr Wilkins : Yes, exactly—it is.

Mr Manning : It is.

Senator KIM CARR: So these are different amounts of money for different purposes?

Mr Wilkins : Exactly.

Senator KIM CARR: In addition to MYEFO, the government's statement makes it clear that $2.4 million has been cut from the budget for the out years as well. Is that right?

Mr Manning : There has been no money cut from the money put aside for legal and witness expenses. The $2.4 million was transferred from the department to the royal commission.

Senator KIM CARR: That has been also transferred in the out years—is that your proposition?

Mr Wilkins : It has been transferred for the years in which it was appropriated.

Mr Manning : That is right.

Senator KIM CARR: But it goes for the forward estimates period as well, does it not?

Mr Wilkins : As the Attorney has said, the funding has been provided to the royal commission up to a certain point in time and we are anticipating that the royal commissioner in his report may come forward and ask for extra time. But he has not done that yet, so the funding for the royal commission is whatever the funding for the royal commission is.

Senator KIM CARR: No, there are two separate questions, Secretary. I am getting officers along the table indicating a slightly different response. I want to know: is the money in the out years, insofar as is contained in the budget for future years, while the commission is in existence?

Mr Wilkins : Yes.

Senator KIM CARR: Is that the point?

Mr Wilkins : Yes. That money has been transferred.

Senator KIM CARR: I will just come back to the number of witnesses. Since you cannot tell me the number of witnesses that are going to appear before the commission, how can we allocate an amount of money for them or, equally, reduce the amount of money available for them?

Mr Wilkins : We have not reduced the amount of money.

Senator KIM CARR: I still say to you that that is a matter of dispute. How many witnesses will appear in the out years?

Senator Brandis: It may be disputed by you, Senator Carr, but the secretary's evidence and the evidence of the officers is completely clear about this. It has not been reduced.

Senator KIM CARR: How many witnesses will appear before this commission?

Ms Dines : On average at the moment you would see 17 witnesses appearing per hearing. I do recall, when we attempted to estimate the amount of money that would be required, we had a working proposition that perhaps 20 witnesses would appear each hearing. As I indicated in my previous answer, whilst there might be 17 witnesses, the reality is that the majority of those witnesses do not require assistance with their legal costs, because the institution that that witness comes from is paying those costs. The other fact that affects the funding that is required is that the commission is holding hearings around the country. Therefore some of the witness support costs—the travel costs for people to attend a hearing—have been less than what we originally envisaged, when the costing was done on the basis of all hearings of the royal commission being held in Sydney.

Senator KIM CARR: Minister, can you agree that all the survivors of child sexual abuse who wish to give evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse will receive the financial assistance they require?

Senator Brandis: The government has always been fully supportive of the work of the royal commission. It has provided for legal assistance to witnesses who require it. As Ms Dines has said, a lot of them do not because of the circumstances in which they have come before the commission. As far as I can foresee, that will continue.

Senator KIM CARR: That is not a guarantee, is it?

Senator Brandis: I have no reason to doubt that that is the case.

Senator KIM CARR: Can you give this committee a guarantee?

Senator Brandis: That is the position of the government. I cannot foresee that position changing—I am sure it will not. I really cannot go beyond that.

Senator KIM CARR: I appreciate that is the position of the government, but that is hardly a guarantee given the way these budgetary papers have been presented.

Senator Brandis: That is a silly thing to say. There has been absolutely no financial constraint placed on this commission. Nobody who has needed assistance has been unable to avail themselves of the assistance, as I understand it from the CEO. That is the position and that will continue to be the position.

CHAIR: This will have to be your last question, Senator Carr.

Senator KIM CARR: But you cannot tell us how many witnesses are going to require assistance.

Senator Brandis: This is not a precise science. There will be a large number, one would expect. In setting a reporting date of 30 June 2016, the previous government made some estimates of how long this royal commission would be likely to go. As has been indicated to you by the secretary, I think, there has been an informal intimation that the commission might require an extension, but no application or formal request has been received by the government—although I am expecting to receive one, to be frank. The point I am making is that the government of which you were a member made some estimates as to how long this would take. We do not call your methodology into question. It may take longer. If it takes longer, it takes longer.

Senator KIM CARR: It is just that you have transferred money to the commission on the basis that you are claiming that it is more efficient for the commission to administer the funds. Yet the department has kept $11.6 million to administer itself. Is that the case? If it is more efficient for the commission to administer the funds itself, why have you kept back so much money?

Mr Wilkins : I think I will get Mr Manning to answer that question, but it is a scheme that we administer.

Mr Manning : As I said earlier, there are two components of it. One is for legal assistance and one is for witness expenses. It was the witness expenses component, or the $2.4 million, that was transformed not because it was more efficient but because it might make it easier in terms of people engaging with the commission to just have to deal with the commission in relation to that matter. The legal expenses are a different matter, and in relation to them there is still the remaining $11.63 million per year. For example, this year to date we have committed $840,000 of that $11.63 million for legal expenses.

Senator KROGER: I find it amusing that the opposition cannot get their heads around inquiries that can being conducted not only within budgets but less than the preliminary. It is clearly something they have been spending their time trying to come to grips with. I was wondering if the officers at the table could provide me with a general update on the Royal Commission into Trade Union Governance and Corruption?

Mr Wilkins : We can, but we will need to make a little shuffle of the table.

Senator KROGER: I thought it would be refreshing to talk about a different royal commission for a little while.

Mr Wilkins : Ms Fitzgerald is the CEO of that royal commission.

Ms Fitzgerald : In terms of your question, you want a general update. Letters patent were issued by the former Governor-General on 13 March, which means that at the end of this week or next we will have been in operation for approximately three months. A royal commissioner was appointed, Hon. John Dyson Heydon QC, AC, a former High Court judge. Three counsel assisting have been appointed too who are led by Mr Jeremy Stoljar SC. Complementary letters patent have been issued by the states of New South Wales, Victoria and Queensland at this point in time. We have appointed solicitors to assist the commission and we have premises and are operating out of Sydney. We conducted a preliminary hearing on 9 April and we held our first substantive hearings last week or the week before with one witness.

Senator KROGER: Could you just remind me, what is the time frame for that?

Ms Fitzgerald : We are due to report on 31 December.

Senator KROGER: It is roughly an eight-month process from when the first patents were issued.

Ms Fitzgerald : Yes, that is right.

Senator KROGER: What are the preliminary costings for that?

Ms Fitzgerald : I can give you the budget by financial year. For 2013-14 the royal commission was allocated in administered funds $14.9 million in operating funding and $5 million in capital funding. For 2014-15 it is $22.37 million in operating funding and $250,000 in capital funding.

Senator KROGER: Does some of that funding go towards assisting witnesses to fly to Sydney should they not be able to attend without support? Is that sort of assistance offered as well?

Ms Fitzgerald : I might refer to Mr Manning on that.

Senator KROGER: I do not know whether it applies to the witnesses that are actually being sought.

Ms Quinn : The department was allocated an appropriation for this specific royal commission. Our appropriation in the 2013-14 financial year was $1.556 million, which is to cover both legal-financial assistance and witness expenses. In the 2014-15 financial year we have $3.889 million for the same purposes. As Mr Manning said earlier, there are two different entitlements for people, or options for people, and avenues of assistance. Whilst is witness expenses, as you have just said, about flights to attend hearings and those sorts of things. They are covered under a regulation that sits under the Royal Commissions Act, so that is an entitlement that anyone can access. Then there is also our scheme that we administer for legal-financial assistance, which would assist a person with reasonable legal costs provided they meet the requirements of the scheme.

Senator KROGER: You mentioned that the first hearing has taken place. When was that?

Ms Fitzgerald : The preliminary hearing was on 9 April. The first substantive public hearings were 12 and 13 May.

CHAIR: Sorry, Senator Kroger. Has any application been made for parliamentarians to get legal assistance in the way that we were talking about previously, without naming names? I am not sure if you were listening, Ms Fitzgerald.

Ms Fitzgerald : I was, Senator. I would not know that, necessarily, if that were the case.

Mr Minogue : Senator, there is nothing that we are aware of.

Mr Wilkins : It is a matter for the Department of Finance. We would not necessarily know, Senator, but as far as we know the answer is no, nobody has made an application. You would be better to ask the Department of Finance to get a definitive answer to that.

CHAIR: For anyone who is a 'normal' person, that is, not a parliamentarian, that is paid through your department.

Mr Wilkins : That is right.

CHAIR: But there is this other scheme.

Mr Wilkins : The other scheme for parliamentarians and ministers, and also for some public servants, is paid through either their department or through the finance department.

CHAIR: Conceivably, then, what minister would be relevant to this sort of inquiry? That is perhaps hypothetical. If an application were made, that would be determined by the Department of Finance.

Mr Wilkins : Exactly.

Senator Brandis: It is a function of the terms of reference, Mr Chairman. The terms of reference deal with matters of trade union governance and corruption. They do not specify any particular public office. I guess the answer to your question is: any minister who may have been involved in corruption or issues of trade union governance that are relevant to the inquiries of the royal commissioner.

CHAIR: But they would not have been involved as ministers in that, surely. They would be involved as individuals, in which case they would not be entitled to payment.

Mr Wilkins : No.

Senator Brandis: That is true.

CHAIR: In any of these royal commissions—the pink batts, the child abuse or the union corruption—if people are found by the royal commissioner to be at fault in a criminal or quasi-criminal way, are they required to pay back any assistance they may have got? If a minister, for example, had done work with, say, pink batts that was entirely beyond his role as a minister and had caused some criminal happening because of it, do you have the right to claim back the legal assistance?

Mr Wilkins : I do not think so, but I might get Mr Minogue to expand on that. I think it is different if the person is then taken before a criminal court on the basis of a finding of a royal commission. That is different.

Senator Brandis: The way the scheme operates is that it has to relate to the conduct of a minister in office. There is, as I understand it, a crime-fraud exception. So, if what is being alleged is of criminal or fraudulent conduct, then it may be that the legal assistance is not provided. Of course, in the home insulation program royal commission no issue has arisen as to whether or not the ministers were acting in their capacity as ministers, and no allegation has been made against any of them that they were involved in the commission of a crime or the perpetration of a fraud.

CHAIR: Just so I can understand this, and please tell me if this is your department or Finance, I will use a hypothetical example. If someone with my name who was a member of the Labor Party—but it does not matter what party, but I just want to distinguish him from me—was found to be corrupt, and I am not suggesting that that is the case, would you then be seeking back any legal assistance?

Senator Brandis: It is really a hypothetical question. In these royal commissions, as I said before, in relation to the Home Insulation Program royal commission there are no allegations of corruption against anyone. In relation to the trade union corruption royal commission, if a person who happened to be a minister, or subsequently to be a minister, were found to be corrupt, then plainly they would not be acting in their capacity as a minister so they would not be eligible for the assistance for that reason.

CHAIR: And that is in the Department of Finance in any case. But in your department, if you give money or legal assistance to any witness, whether they be politicians, union leaders, or pink batt installers, and they are then found to be corrupt or to commit some other crime, do you have redress to recover the legal assistance given?

Mr Wilkins : I am not sure that we give assistance in this relation to criminal matters. I do not know that that is actually covered.

CHAIR: If in relation to a royal commission, any royal commission—let me pick the trade union one—if a trade unionist was brought before the commission, sought legal assistance from the commission, was given legal assistance and then was subsequently found to be corrupt, would the department seek to recover the legal aid given?

Mr Wilkins : I think the answer is probably not normally. Partly the philosophy of providing assistance to people is to assist the royal commission rather than necessarily just to assist the person.

Senator FAULKNER: The issue is whether there are Commonwealth laws that enable the circumstances that Senator Macdonald points to, knowing full well there are some laws in the state of New South Wales where a namesake of his has been found to have engaged in corrupt conduct by the New South Wales Independent Commission Against Corruption. Let's just call a spade a spade. There are certain provisions in New South Wales statutes that relate to this.

CHAIR: Senator Faulkner, in my chairman's role, it is not your turn, but I know you are trying to be helpful. My question is in relation to people who are assisted by the royal commission to give evidence and are paid money, are they then subject to recovery if they are subsequently found to be corrupt or involved in some criminal activity?

Mr Manning : Not under the scheme administered in this department.

CHAIR: Not under the scheme administered by your department. I am sorry, Senator Kroger, you now only have two minutes left.

Senator KROGER: Could I ask for clarification on the back of that. Who is entitled to legal support, legal counsel or representation at a royal commission? Is everybody entitled?

Mr Wilkins : I do not think you can just turn up.

Mr Manning : Generally speaking, people who have been called or have been given leave to appear as a witness are entitled.

Senator KROGER: So everybody is entitled.

Mr Wilkins : If the royal commissioner thinks they should be.

Senator KROGER: I am speaking in terms of the royal commission. On the back of that, I was—

Mr Wilkins : The royal commission makes a decision: 'This person is relevant to our inquiry. We are going to call them.'

Mr Manning : The arrangements for each royal commission could be slightly different. My answer is a general one. So it is generally where they are called or given leave to appear before the royal commission. Sometimes there will be eligibility differences in relation to whether iit is an organisation or individual.

Senator KROGER: Thank you.

Senator KIM CARR: I would like to go to some matters that relate to the proceedings before the Royal Commission into home insulation. On the afternoon of 14 May this year arguments were made in the royal commission into the Home Insulation Program regarding the issue of cabinet confidentially. Counsel for former Prime Minister Kevin Rudd, Bret Walker SC, argued that the basic requirements of justice required that his client be able to tender his entire statement to the royal commission, including references to confidential cabinet deliberations. Mr Walker submitted to the royal commission—and I understand that it is on page 470—that, with respect to the terms of reference:

… the fact is that everything, including what I might call the particulars by way of suggestion, that the executive government in its wisdom or lack thereof decided to use to frame the terms of reference, places Cabinet process, not peripherally or incidentally, but at the heart of the first issue. The present executive—the present government—can't have it both ways. It can’t require you to report faithfully on that matter and prevent you from pursuing the evidence about it, and worse, committing the unfairness of not permitting the Prime Minister of the former government to give his answer to the allegations.

CHAIR: Is there a question here, Senator?

Senator KIM CARR: There is a question. Do not worry, Mr Chairman, there will be a question here. Bret Walker continues:

We are entitled publicly to answer the suggestion that the current government, in commissioning you, decided to make publicly a public allegation, as a matter of ordinary fairness, calls for a public refutation. A proper opportunity to defend yourself against adverse comment by an administrative tribunal, an investigative tribunal such as yourself, requires that match.

If that match is not possible, and worse, if we are not entitled—in my client’s answers in the witness box, in my submissions and open session—if we are not entitled to answer fully the suggestions that are made by the current government in its terms of reference, then your report would be impossible.

Who determined the terms of reference for that commission?

Senator Brandis: The cabinet.

Senator KIM CARR: On your recommendation?

Senator Brandis: When the submission was brought to cabinet, I was the lead minister.

Senator KIM CARR: Was it your submission that cabinet documents of the previous government be made available to the commission?

Senator Brandis: That is a different question—the terms of reference for a public document. It is a matter of public record that I was the lead minister as Attorney-General. I do not think I can go beyond that, Senator, for reasons you well understand.

Senator KIM CARR: I am just wondering who made the decision to provide cabinet documents to the royal commission.

Senator Brandis: It was decision of government. But be careful in your language, Senator, because it is not as simple as that. We explored this at the last estimates hearing and you may or may not be aware that I tabled a letter dated 31 January 2014 from the Australian Government Solicitor to the CEO of the royal commission setting up the terms under which certain cabinet documents were being provided to the royal commission. The terms of that letter make it clear that the Commonwealth was providing those documents to the royal commissioner for his inspection but not in a public sense producing them to the royal commission, that the Commonwealth reserved all of its rights in relation to public interest immunity and, contrary to some other very misleading statements that were made at the time by the shadow Attorney-General, there was no waiver whatsoever of cabinet confidentially or public interest immunity. What the letter, if I may paraphrase it, does say is that if there is an application for matters to be brought into the public hearings of the commission then the Commonwealth might argue, through its counsel, either that those matters should not be dealt with by the royal commission in public session or should be dealt with with certain protections being put in place.

Coming to the preamble of your question in relation to Mr Rudd's witness statement, Mr Rudd's witness statement was, I gather, prepared by Mr Rudd in consultation with his lawyers. The witness statement was not a cabinet document, but there were a number of elements of Mr Rudd's witness statement that referred to cabinet discussions. Under the procedures that were in place between the Commonwealth and former ministerial witnesses, that witness statement was submitted, I think, to the Department of the Prime Minister and Cabinet so that those in PM&C who were responsible for administering the cabinet confidentiality rules could indicate that they wanted to redact from the statement content which referred to cabinet discussions so as to protect—on the same basis that cabinet documents were being protected as well. As I understand it, that was done.

At that point, Mr Rudd, through his counsel, objected. He said, through his counsel, words to the effect of: 'Because there are all these redactions from my statement, it is not a complete statement of my position. Therefore, I am not going to sign it or tender it into evidence, because I want to be able to tell the full story in my own words.' I am paraphrasing what I understand to be the submission made on his behalf. There was a dispute about that. I considered the matter overnight, and I discussed it with the Prime Minister the following morning before the royal commission resumed its hearings. The Prime Minister and I had a consultation. I am obviously not going to say what was said in that meeting, but the result of the consultation is that a decision was made to allow Mr Rudd's statement to go forward in an unredacted form. I instructed counsel for the Commonwealth, who had made the submissions the previous day in relation to these matters, that that was now the Commonwealth's position. If I may say so, I thought that the point Mr Rudd made was a fair point and that he should be able to put forward his statement in an unredacted form.

Senator KIM CARR: If we are to paraphrase, then I think Mr Dreyfus would say that his concern was that the processes that you set in train, in providing cabinet documents, were not able to protect cabinet confidentiality. Would it not be true to say that that has been demonstrated through the proceedings that have followed the events on 14 May.

Senator Brandis: I do not agree with that at all. No cabinet documents have come into the public arena. The reservation of the Commonwealth's position in relation to cabinet documents remains. In relation to Mr Rudd's own statement, which as I say is not a cabinet document but nevertheless refers to some events that occurred in cabinet, it was Mr Rudd's counsel who applied for the statement to be received by the royal commissioner in unredacted form. Having considered carefully what was said by Mr Rudd through his counsel, the government—and specifically the Prime Minister and I—decided that Mr Rudd had a fair point and that he should be able to put in his statement in an unredacted form. But that is not a cabinet document.

Senator KIM CARR: This is sophistry now.

Senator Brandis: I am telling you precisely what happened.

Senator KIM CARR: This is absolute sophistry now. If you are now saying—

Senator Brandis: Are you now attacking Mr Rudd?

Senator KIM CARR: No, I am attacking you for failing to defend the confidentiality of cabinet documents, a proposition which has meant that a document has gone into the public arena.

Senator Brandis: No document has gone into the public arena, Senator Carr.

Senator KIM CARR: That is at the heart—absolutely at the heart—of how cabinet government operates.

Senator Brandis: No cabinet document has gone into the public arena. The reservation that I pointed out to you in the letter of 31 January 2014, of which you seem to be ignorant, has been maintained absolutely. Mr Rudd's statement is not a cabinet document. You may be attacking him for revealing what was said in his own cabinet. That is a matter between you and Mr Rudd.

Senator KIM CARR: Do you now accept that the arrangements you belatedly put in place in response to the criticism of the way in which you have handled this matter go to exactly this issue of cabinet confidentiality? And you cannot protect it, once you provide those documents to another party.

Senator Brandis: Senator Carr, you say 'belatedly', but the arrangements were put in place, as communicated by the letter of 31 January this year, before the first witnesses appeared.

Senator KIM CARR: But well after the criticisms of your behaviour in releasing cabinet confidential documents.

Senator Brandis: No cabinet confidential documents were, or ever have been, released.

Senator KIM CARR: They have been released. They have been released to the royal commission.

Senator Brandis: No, they have not at all. They have been provided to the royal commission on strictly limited terms and with a total reservation of the Commonwealth's position in relation to cabinet confidentiality and public interest immunity. When you say, Senator Carr, that those protections were specified in response to criticism, you have, if I may say so, an extraordinary view of causality. There is no relationship whatsoever between the decisions the government made in relation to these matters or anything that may have been said prior to that. This was the appropriate course of action. It is what the government decided to do and would have done in any ordinary event.

Senator KIM CARR: Senator, if you are taking the view that Mr Rudd's submission to the royal commission did not contain confidential cabinet deliberations, why did the counsel, acting on your advice, seek to have that submission suppressed?

Senator Brandis: You have made at least two errors in that short question. First of all, counsel does not act on my advice; counsel acts on instructions, not on advice. But, in any event, the instructions were not mine. The basis on which these matters were being dealt with, and the instructions to counsel appearing on behalf of the Commonwealth, came from the Department of the Prime Minister and Cabinet. On this occasion the submission made, on the basis of those instructions, which would have had the effect of preventing Mr Rudd's statement going in in an unredacted form, was revised in that one particular instance following a discussion between the Prime Minister and me. Which way you want it, Senator Carr? Are we suppressing something that should not have been suppressed or are we failing to protect something that should have been protected? You cannot have it both ways.

Senator KIM CARR: I can have, clearly. As the Attorney-General your job is to protect confidential cabinet documents. You have failed to do that.

Senator Brandis: No, as a matter of fact. Again, there are so many errors in that brief question. Let me take you through it. First of all, no cabinet document has been put into the public arena.

CHAIR: You have said that about 10 times.

Senator Brandis: I have, but it does not seem to get through to Senator Carr. Mr Rudd's statement was not a cabinet document; it was Mr Rudd's statement. Secondly, Senator Carr, if I may attack the premise of your question, my obligation as the Attorney-General ultimately is to see that justice is done. In this particular case it seemed to me, and the Prime Minister agreed, that Mr Rudd should be able to put in his statement so he could tell his full story in his own words.

Senator KIM CARR: Why did the counsel for the Commonwealth oppose the release of Mr Rudd's submission?

Senator Brandis: The standing instructions were that statements by ministers should be subject in the first instance to redaction by the Department of the Prime Minister and Cabinet in consultation with the Australian Government Solicitor. For the reasons I have explained to you ad nauseam, having considered carefully and respectfully the submissions Mr Rudd made through his counsel concerning his statement, the Prime Minister and I decided that the point he made was a fair point, and the instructions to the Commonwealth's counsel were changed in that respect.

Senator KIM CARR: Minister, I put it to you directly that you have, in instructing the royal commission to inquire into a matter—

Senator Brandis: I do not instruct the royal commission.

Senator KIM CARR: You have established a royal commission, under terms of reference which you have established through the cabinet, to enquire into a matter that goes to the heart of the cabinet deliberations of the previous government and, in so doing, you have permanently damage the doctrine of cabinet confidentiality. Why is that not true?

Senator Brandis: Senator Carr, you are entitled to your opinion. The government does not instruct a royal commission. The royal commission is established by letters patent, which set out its terms of reference, and its powers are set out by the Royal Commissions Act. The whole point of a royal commission is that it ranges free, subject to those two constating documents—the terms of reference and the powers in the statute. It would be quite improper for any government to tell the royal commission what to do, once it has been established. Obviously, as any government ought to do, we have allowed this royal commission to conduct its own affairs and have had nothing to do with it. The only intersection between the Commonwealth and the royal commission has been the administrative support provided to it through the Attorney-General's Department and the submissions made before it on behalf of the Commonwealth through counsel.

Senator KIM CARR: Mr Rudd's submission was redacted because it went to issues concerning the deliberations of the cabinet. Is that true or not?

Senator Brandis: You would have to ask that question in the Prime Minister's estimates because it is PM&C that superintended that process. But my point to you, Senator Carr, is that, having heard the submissions made on Mr Rudd's behalf by his counsel, the government decided that this document, which is not a cabinet document, should be allowed to be tendered by Mr Rudd so as to give him natural justice.

CHAIR: May I just remind the committee members that we have set a notional completion for group 1, which includes royal commissions at 3.30 pm today. At 3.30 pm, the committee will have to decide whether we allow more time for that or finish there. I just alert committee members to a decision that they will have to make at 3.30 on the basis that the longer we spend on this the less time we spend on other things. I am completely neutral and do not have a view. I am happy with whatever the Labor and Greens senators want to do with the timing.

Going back to the royal commission into the alleged union corruption, how many witnesses have been called so far?

Ms Fitzgerald : We have only had one substantive public hearing to date and so there has only been one witness called at this stage.

CHAIR: Are you advised in advance of additional witnesses to be called, and do you have any idea of how many witnesses are likely to be called?

Ms Fitzgerald : Not at this stage. As I mentioned, we have been very much in an establishment phase during the initial period, and we are in the process of working with the commissioner and the counsel assisting to set out a hearings plan for the remainder of the year. Obviously, falling out of having a hearings plan there are witnesses, evidence gathering and investigations to be done. I am just not in a position at this stage to be, in any way, shape or form, certain about those type of matters.

CHAIR: I want to ask you another question about that royal commission, but next I want to ask you about the Defence abuse royal commission. So officers in that area might get ready. Minister Brandis, you might be able to indicate.

Senator Brandis: Sorry?

CHAIR: I am talking about the royal commission into union corruption. Apart from the much publicised case of the Health Services Union, were there other events or incidents which led to the creation of this royal commission? Was it just that single event?

Senator Brandis: I think the most accurate way to answer your question, rather than engaging in political commentary, is to refer you to the terms of reference of the royal commission, which descend into some particularity. In particular, subparagraph (b) of the terms of reference says the commissioner is directed by Her Excellency to inquire into:

(b) without limiting the matters in paragraph (a)—

which sets out the general subject matter of the royal commission—

activities relating to the establishment or operation of any relevant entity—

'relevant entity' is a defined term but, for the sake of brevity, let's call it a 'slush fund'—

as it relates to the following employee associations or any of their branches:

(i) The Australian Workers Union;

(ii) the Construction Forestry Mining and Energy Union;

(iii) the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;

(iv) the Health Services Union;

(v) the Transport Workers Union of Australia …

That is the only term of the terms of reference which identifies particular suspect unions. I do not want to be a political commentator, but I think we all know that in recent years there have been specific allegations made in relation to the conduct of officials of each of those five unions to do with misconduct or corruption. I think that is the best way of responding to your question.

CHAIR: That clarifies that for me. Thank you for that. Can we go to the Defence Abuse Response Taskforce and get a general update on where that is at, what witnesses have been called, where it is heading, when it is finishing and some broad items of cost.

Mr Hall : The task force was established in 26 November 2012 to look at all of the cases of abuse that had been brought forth through the DLA Piper inquiry and to take on any new cases of abuse. It took further notifications of abuse until 30 May 2013. The total number was approximately 2,400 cases. The task force was asked to provide one of five different possible outcomes for each of those cases. That is a reparation payment of up to $50,000, referral to counselling, a restorative process, a possible referral to state and territory police if there is a possible matter of criminal investigation and possible referral to the Chief of the Defence Force if a still-serving officer was an alleged abuser and there was possible administrative action that could be taken. Those are the five outcome areas. That is the background.

The task is to go through all of those cases and also to provide reports on any systemic findings that come out of the assessment of those cases. At this point the number of complaints that have been assessed out of that 2,400 is approximately 1,900. Of those cases, 1,040 have been assigned a case coordinator or case officer who provides support throughout the complainant's engagement with the task force. The independent reparation assessor has made 724 decisions to make a payment. The total figure of payments that have been paid out to complainants is now approximately $29 million. Two hundred and seventy-five complainants have been referred for counselling. There have been 63 matters referred to state or territory policing agencies, 14 matters referred for Defence administrative action, and the Restorative Engagement Program, which is just beginning its national rollout phase, has conducted 34 restorative engagement conferences. Restorative engagement conferences are conferences facilitated between a senior Defence Force member and a victim in order for victims to tell a story of abuse and have it acknowledged, as a restorative practice. We are anticipating around 1,000 of those cases.

The formal task force has been extended to 30 November 2014. When I say the formal task force, that is the point at which all decisions in relation to outcomes need to have been made by the chair and the leadership group. A period following that will be required to complete all of the programs under it—the Restorative Engagement Program and the counselling program—and it has been agreed with the Department of Defence, who meets the cost of the task force, that that will be completed by the end of the 2015-16 financial year.

CHAIR: When do you expect that the work of the task force will be concluded?

Mr Hall : The work of the task force will be concluded on 30 November 2014.

CHAIR: But then there will be follow-up action?

Mr Hall : There will still be some things to be delivered to complainants, because those processes take a little longer.

CHAIR: Did I hear you say that the total costs of this task force are borne by the Department of Defence rather than your department?

Mr Wilkins : That is correct. It is not an appropriated figure; it is a situation where Defence meets costs that are invoiced. We agree to a budget with Defence and those figures are formally agreed between departments.

CHAIR: So what has it got to do with the Attorney-General's department?

Mr Wilkins : The view was taken by the government at the time, and in my personal view probably correctly, that there needed to be some distance from the Department of Defence. It did not need to be in the Attorney-General's department—it was just a logical place to put it if you did not want to put it in the defence department. That is what it is doing in the Attorney-General's department.

CHAIR: I take it what you are saying is that you did not want undue influence coming from the department—

Mr Wilkins : It was all optics.

CHAIR: Does your department have any oversight role?

Mr Wilkins : There is the head of the task force, who has been appointed separately.

Mr Hall : There are four members of the task force.

Mr Wilkins : They are appointed by the defence minister, and they run the task force—I do not. It is a bit similar to the relationship I have with royal commissioners. People work for the task force leaders, not directly for me.

CHAIR: This was a task force set up in November 2012, so clearly by the previous government. You are saying it was intended to make sure Defence was one step removed, and yet the Minister for Defence appointed the task force members.

Mr Wilkins : That is right—he appointed Len Roberts-Smith as head of the task force. It has been set up administratively rather than as a royal commission or anything like that.

CHAIR: I am struggling to see how the Attorney-General's department is involved or relevant, but I guess not a lot turns on it. Is the report of the task force to your department or to the defence minister?

Mr Wilkins : It is to the defence minister and the Attorney-General.

CHAIR: Jointly?

Mr Wilkins : Yes. It goes to the parliament after that.

CHAIR: Was it a report to parliament or to the ministers?

Mr Wilkins : It goes to the ministers, and they table it in parliament.

CHAIR: So it is not a report to parliament as such—it is a report to the executive government?

Mr Wilkins : Yes.

Senator SINGH: Are we going to move on now to group 2?

CHAIR: If nobody else has any more questions about the royal commission.

Mr Minogue : I might just correct an answer I gave earlier. I earlier said that we had not received an application from Senator Wong in relation to parliamentary entitlements assistance for the home insulation royal commission. We have checked our records, and she has applied for assistance, but as far as we know she has not engaged counsel. My earlier statement was that she had not applied; I have expanded on that and clarified that she has applied but has not engaged counsel. I thought I would correct the record before we leave.

CHAIR: Thank you for doing that. It is important to be accurate. Has she been paid anything?

Mr Minogue : As far as we know we have not received an invoice from her.

CHAIR: If she has not got counsel—perhaps she is being her own counsel and sending the bill?

Senator Brandis: She may have a solictor.

CHAIR: She may be acting as a lawyer for herself.

Mr Minogue : No, you would not be covered for your own costs.

CHAIR: It seems we are in wild agreement we have finished with 1.8 so all the royal commission people can go back to more productive work.


CHAIR: We will now move onto group 2, Program 1.1: Civil Justice and Legal Services Group. Again, we will sort of roll these over in 15 minute segments to try and give everyone an opportunity. We will start with Senator Wright.

Senator WRIGHT: I would like to ask questions first of all about the Racial Discrimination Act consultation and the section 18C proposed changes. What was the time frame for consulting on the government's proposed changes to the Racial Discrimination Act?

Senator Brandis: Are you talking about the invitation for public submissions?

Senator WRIGHT: Yes.

Senator Brandis: The exposure draft was released for public consultation on 25 March, and advertisements were placed then—or a couple of days later it may have been—in the major newspapers inviting public submissions. The consultation period closed on 30 April; however, that was a Wednesday and they were still coming in, so we decided to extend it a little bit and closed it at the end of that week on 2 May.

Senator WRIGHT: How many submissions did the department receive?

Senator Brandis: It was around about 3,500.

Senator WRIGHT: How many were in favour—

Senator Brandis: Sorry, I am corrected. It was 5,557.

Senator WRIGHT: Thank you. How many were in favour of the proposed change and how many were against?

Senator Brandis: There was a variety of views expressed, and at the moment I am going through other submissions. This is not an opinion poll, I am not going to go into the question of how many were of one point of view or how many were of another. I think it is enough to say that a wide variety of views were reflected in the submissions, as you would expect, because there is a wide variety of views in the community. There were many who said that section 18C should be repealed entirely and not replaced; there were many who said that section 18C should be left alone and untouched; and there were many who said—which is the government's view—that section 18C should be reformed, and, within that third category, there was a wide variety of different views about how the section could be reformed.

Senator WRIGHT: When will the submissions be published?

Senator Brandis: They will not be published, because they were invited on the explicit terms that they were submissions to government that would be treated in confidence. Whether or not members of the public, or organisations, who have made submissions wish to publish them is entirely a matter for them. A number of organisations—including, for example, the Australian Human Rights Commission, the Law Council of Australia, some of the civil liberties lobbies and the Institute of Public Affairs—have published their submissions, and that is entirely a matter for them. It is not for me, as the recipient of submissions invited on the basis that they would be treated by the government in confidence, to breach that confidence by publishing them.

Senator WRIGHT: There are a couple of things I would take up there. I understand from stakeholders that when the submissions were called for there was an understanding that if they explicitly consented to publication then indeed they would be published, rather than the default position where normally, in any inquiry where the public wants to know what the community view is or know about the consultation, submissions would be published unless people ask for them not to be published. It is being put to me by stakeholders that they understood that if they explicitly consented to the publication of their submissions then that would occur. In fact, quite a lot of stakeholders have explicitly put in a clause like that.

Senator Brandis: They may have done, but that is not the basis on which this was done. This is not like making submissions to a parliamentary inquiry. When the amendments to the Racial Discrimination Act are brought forward by the government later this year, I am very confident that there would be Senate hearings into the bill—before this committee in fact—and on that occasion the ordinary process of public submissions to a parliamentary inquiry will no doubt take place. But that is not what this exercise was.

Senator WRIGHT: Attorney-General, you would agree, I think, that this question has excited a great deal of interest in the community.

Senator Brandis: I think there are a lot of people in the community who feel very strongly about it one way or another. Frankly, I would not overstate it. I think the people who feel strongly about it feel very strongly about it. When I go around my own state, very few people raise the issue with me. I think that this is an issue that has raised a lot of interest amongst certain groups in the community, but other groups in the community have not engaged in it. I would not be able to quantify what those are; I am not an opinion pollster. I do not think that because a lot of people feel strongly about this you should assume that it is something that the entire country feels strongly about.

Senator WRIGHT: With respect, there is a lot of objective evidence to suggest that that is not accurate. First of all, there is an opinion poll that showed that 88 per cent of Australians are not in favour of the change. There is also the sheer number of submissions that were received. According to what I have heard from you today, there were 5,557 in just over a month,

Senator Brandis: About five weeks.

Senator WRIGHT: I think that is an objective indication of the degree to which people were not just concerned about it but motivated to write, given that—from what you are saying—there was not even an undertaking that those opinions would be made public.

Senator Brandis: There was more than that. There was an assurance that they would not be, because people do have a right to put their views to government and to have their privacy protected.

Senator WRIGHT: But the point is that, clearly, there is a lot of interest. I think that it is not just academic to suggest there is not.

Senator Brandis: There are 23 million people in this country and five and a half thousand made submissions. As I said before, I think a lot of people feel very strongly about this. Most of the people who approach me on the issue tend to say, 'What are you doing? Why don't you get rid of section 18C entirely rather than mucking around with amendments to it?' But I acknowledge that there are many other people in the community who would rather see section 18C left alone. And, as I said before, there are people in the middle who think, as I do, that section 18C is not perfect; that it should be reformed but not repealed.

Senator WRIGHT: With respect, earlier in response to one of my questions about publication and how many submissions were in favour or against—so we can look at whether that means totally in favour of what you are proposing, on middle ground or wanting some change or no change at all—you said, 'It's enough to say that there were many, many and many'. I put it to you that that actually is not enough, that people genuinely want to know what their fellow Australians are feeling about this. Many, many, many: does that actually mean a third, a third, a third? Does it mean eighty per cent? How will we know the proportions of people who are in favour of those three broad stances you have outlined?

Senator Brandis: I think you misunderstand the exercise. This was not an opinion poll.

Senator WRIGHT: It is a canvassing of opinion.

Senator Brandis: This was not an opinion poll. This was to solicit views of the community about what was the best way to deal with this matter. We did not embark upon an opinion-polling exercise. What we did was ask the community to tell us their ideas. The government went to the election with the announced policy of reforming section 18C or, as I sometimes put it, repealing section 18C in its current form. That is our policy; that is what we are going to do. For that reason our policy was not to leave section 18C unamended, nor was it our policy to repeal section 18C entirely, as a lot of people would like to see us do. What I am particularly interested in are those people who have good ideas about ways in which the section can be improved. That is what I am looking for; I am looking for ideas. If I can put it this way, this is a qualitative, not a quantitative, exercise.

Senator WRIGHT: It seems to me that, given there is no commitment to making those interesting ideas known to the general community, this was totally for the benefit of you and your government in understanding what people's views are about it. Is that right?

Senator Brandis: I suppose you might put it that way. The purpose was to inform the government's thinking by asking people to contribute to that thinking.

Senator WRIGHT: I might take you now to the wording of the exposure draft. I will come to whether or not there might be any change to that, but let us go with what we know at the moment, the exposure draft that is there. I am interested in knowing who drafted the exposure draft. I am thinking it may have been all your own work, maybe with a bit of assistance from someone else or from a couple of other people. Was Parliamentary Counsel involved in it at all?

Senator Brandis: It was primarily drafted by me in consultation with the department and with others, yes.

Senator WRIGHT: Did Parliamentary Counsel cast their eyes over it and give any advice about it?

Senator Brandis: This is not legislation; this is an exposure draft. So that would not ordinarily happen.

Senator WRIGHT: No, that is right. I am just interested. I have read it. I read it when you first announced it, and I am really interested in understanding how it would apply on the ground. I am particularly interested in the exemption clause. It is extremely wide. I am wondering who would actually be caught. What comments or discussion would actually be caught by subsection (4) of that proposed amendment?

Senator Brandis: I am not going to discuss with you, or offer my views about, the meaning of these provisions. As is apparent from your earlier questions, and as we know, this draft is the subject of review following the contributions that have been generously made by so many people who have taken an interest in the matter. Frankly, I think it would be disrespectful of the people who have contributed to the process for us to treat this document as having any status other than as it was described—an exposure draft for the purpose of soliciting feedback. As I put it elsewhere recently, the government did not put this out for discussion with the intention of not listening to what people had to say about it. That is why we are going through all of these submissions, some of which—not all of which—I find very illuminating, just as I found the private discussions I had with certain key stakeholders before that also very illuminating. I do not think any purpose would be served by me offering my own views about what this document means, given the process on which we are now embarked.

Senator WRIGHT: With respect, Attorney-General, this was put out in good faith as a statement of what the proposal was. It was an exposure draft. You invited comments on it. I would suggest that the community is entitled to understand the thinking behind it. Presumably you felt an exemption of some kind was necessary. The width and the breadth of the exemption has excited a lot of interest. Given that we will be looking at some further potential changes to it, I am interested in knowing—given that this was put out as a serious document and this is my first chance to ask you about it—what behaviour would be caught as unacceptable by this extremely broad description of what the exemption would be? Does it include a discussion in a city square? Does it include a discussion in a workplace? Is that a public discussion? Does it include a discussion on television or on public transport?

Senator Brandis: As a matter of fact, that expression on which you have fixed does not really take the matter very far, because the existing section 18C also only applies to public acts, or acts, as it were—to use the vernacular expression—in the public square.

Senator WRIGHT: But it is a far broader range of behaviours that are caught, whereas, with this exemption, there is a lower bar, in a sense.

Senator Brandis: You may think that. Perhaps it might be helpful if I approach your question this way. You asked what the thinking was behind this. I have tried to explain this in answer to questions from Senator Singh.

Senator WRIGHT: It is the exemption I am talking about.

Senator Brandis: Yes. There were also questions from Senator Peris—and I thought perhaps from you, Senator, but a Greens senator anyway—in the chamber. My thinking is that the existing section 18C is imperfect for two principal reasons. I am not saying these are the only reasons, but they are the main ones. The first is because it is, in my view, way too restrictive of freedom of speech and freedom of discussion. The second is that, although it purports to deal with racist language, it actually does not provide for racial vilification, which is the core concept here. In a sense it fails, in its current wording, at both hurdles. It does not provide effective protection against racial vilification, which is the core mischief to which it is meant to be addressed, and, because of the way it is worded, it is, in the government's view, way too restrictive of freedom of discussion.

Senator WRIGHT: But with the exemption itself—that you proposed in the exposure draft—what area of public discourse or public behaviour would that exemption not apply to? What is left? That is the question that many people have been asking.

Senator Brandis: The exemption would not exempt, for example, racial abuse. It would not exempt racial vilification.

Senator WRIGHT: 'Words, sounds, images or writings spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic or scientific matter'—the question I had was an example of—

Senator Brandis: I do not regard the utterance of a racist jibe, for example, or racial vilification, as words uttered in the public discussion of a matter.

Senator WRIGHT: What about a discussion on public transport near a person of a particular appearance—a general discussion where someone invites the others on the public transport to engage in comment about the merits of a particular race, their attributes, their characteristics? I would suggest that that would be caught within that exemption. It is 'in the course of public discussion'. It is 'any political matter'.

Senator Brandis: You are entitled to your view.

Senator WRIGHT: I am asking you: why am I wrong?

Senator Brandis: The point I make is that the same could be said for the existing section 18C.

Proceedings suspended from 15:35 to 15:50

CHAIR: Can any of you tell me about the 18C inquiry, which was being discussed before the break—about the submissions that have come in?

Mr Fredricks : In relation to section 18C?


Mr Fredricks : Yes, we can assist on that.

CHAIR: Mr Wilkins, are you able to comment on the submissions to the 18C inquiry that were being spoken about?

Mr Wilkins : I have not actually read any of them. It depends.

CHAIR: I am just wondering how many of them were form letters. You know, the sort we all get. I think I had about 10,000 on same-sex marriage. This one pales into insignificance against that. Minister, do you know how many of the submissions that have been received are the sort of form letters we all get?

Senator Brandis: A very large number of them were. I do not disrespect them, by the way, for that reason. People are entitled to register a point of view, but a lot of them were. Most of them just put a point of view. That is fine, but the utility to me and to the government of this exercise frankly will be primarily with those who make a submission—Senator Wright was asking me about the formal words in the exposure draft, which suggest 'Senator Brandis, we understand what you are trying to do but don't you think it could be better done by these words rather than those words.' The government and I do not pretend to being the fount of all wisdom on this. This is an exercise in language, and it may well be that there are better ways of expressing the basic concepts that I was discussing with Senator Wright, but in the very words that have been used in the exposure draft. I acknowledge that the exemption is broad. That has, I think it is fair to say, attracted most of the commentary, which is fair enough. So those submissions that do more than just say, 'get rid of section 18C completely' or, 'do not touch section 18C' but which say 'we understand your objectives but we think they would be better achieved by these words,' are going to be the most useful.

CHAIR: There was something made of this as being a huge issue. It is an important issue and I hear what you say. I think we all respect people who take the time to make a view. But a couple of years back you would have also received the preponderance of submissions in relation to the same-sex marriage issue?

Senator Brandis: Yes.

CHAIR: How do they compare with that?

Senator Brandis: I did not count how many emails I got on the same-sex marriage issue, but there would have been thousands. Whether it was 3,000, 5,000 or 7,000, I do not know—it would have been thousands. A few years ago I remember getting a lot of emails about the emissions trading scheme. And there have been other things, too. These are really in the nature of petitions rather than submissions, but nevertheless they reflect the views of citizens who have taken the trouble to record their view, so, as I said before, they are to be respected. My own feedback in Queensland is that most of the people who have taken the trouble to raise this issue with me face-to-face have tended to say, 'For goodness sake, why don't you just get rid of section 18C entirely.'

CHAIR: I heard you say that before, Minister, and that is certainly my impression, but I do not pretend to be the scientific or bellwether assessor.

Senator Brandis: There are no scientific studies—

Senator WRIGHT: We heard many were against it, so we do not know how many—

Senator Brandis: That is right. And on that opinion poll you referred to, for heaven's sake, you only had to read the question to realise what an unreliable assessment of public opinion that was.

Senator WRIGHT: It would be very elucidating to know how many were received on all different points of view. Then we would be in a position not to speculate but actually to have some sense—

Senator Brandis: If you choose to speculate, Senator, that is a matter for you.

Senator WRIGHT: In fact you were both speculating about the number of people who have approached you.

Senator Brandis: I am not speculating. I am telling you that most of the people who have approached me have said to get rid of section 18C entirely.

Senator WRIGHT: Isn't it funny that most of the people who have approached me have said the opposite. So where does that leave us. In fact—

Senator Brandis: It leaves us precisely where I said we were at the start—that is, that this is a debate about which a lot of people have strong views across a variety of points of view.

CHAIR: Getting back to my original question, is it easy to assess how many of the submissions you have received have been of the type that we call form letters?

Senator Brandis: Most of them, certainly.

CHAIR: Is anyone going to count them at some stage. If someone is looking through them—and I do not want you to do this as a special exercise for me—is it possible to get, to the nearest couple of dozen, a count of how many of the total number of submissions received, because someone obviously counts them, were of the form-letter type, whether there are for one view or another.

Senator Brandis: I will take that on notice.

CHAIR: I do not want you to spend too much time on it.

Senator WRIGHT: Can I ask you to take on notice the number that were in favour and those that were against, and the number—

Senator Brandis: No, I am not going to do that exercise.

Senator WRIGHT: So what is the efficacy of that particular question as opposed to the one I legitimately put earlier? I do not understand why the distinction.

Senator Brandis: What we are searching for are people's ideas.

Senator WRIGHT: But you have agreed to take on notice a question about how many were form letters and how many were not.

Senator Brandis: I will have a look at it.

Senator SINGH: Senator Brandis, I take it that you have seen the front page of the Fairfax press today?

Senator Brandis: No.

Senator SINGH: Let me allude you to the headline 'Brandis backs down on race law changes'. My question—

Senator Brandis: I did read a report. I have not seen the front page, as you put it. I think I have seen the text of the article to which I think you were referring. And if it is the article—

Senator SINGH: I ask if it is correct that you are—

Senator Brandis: Which journalist wrote that article? I just want to make sure we are talking about the same article.

Senator SINGH: James Massola and Mark Kenny.

Senator Brandis: Yes, that is the article. I have read a copy of the text of it.

Senator SINGH: So you are familiar with the article. Is it true: are you now backing down on your race-hate law changes?

Senator Brandis: I read that article very quickly this morning. I must confess I did not study it carefully. But I was struck that there was not a single significant assertion in that article that was accurate.

Senator SINGH: So you are not watering down your race-hate law changes that are put forward in the exposure draft?

Senator Brandis: Senator—

Senator SINGH: That is a yes or no answer. I know you like them, Senator Brandis.

Senator Brandis: I will respond to your questions in my own way, if I may, please. At the last estimates you said, 'Well, are you putting up an innocuous position?' I said, 'Just wait and see what we come up with.' Then when we proposed the exposure draft you became very agitated and said, 'This is terrible—'

Senator SINGH: It is terrible—

Senator Brandis: 'This goes way too far—'

Senator SINGH: It does—

Senator Brandis: So your proposition in February that it was what you would regard as an innocuous proposition turned out to be wrong. You are now putting another assumption based on a largely incorrect piece of journalism—

Senator SINGH: No, I am asking a question. This is Senate estimates—

Senator Brandis: About which, by the way, neither of the journalists spoke to me. Might I suggest that your speculation in the May estimates is likely to be as unavailing as your speculation in the February estimates, and no more accurate.

Senator SINGH: I am not speculating. I am asking a question. This is Senate estimates—

Senator Brandis: What is the question again—

Senator SINGH: It is where we ask questions to you.

CHAIR: You were referring to a newspaper.

Senator SINGH: Regardless of the newspaper article. I was referring to the newspaper article because obviously it is very clear in the article that the minister is looking at watering down the changes, which I welcome.

Senator Brandis: My helper Mr Brennan here has very kindly given me his iPad with the article to which you refer. So let's go through it sentence by sentence.

Senator SINGH: No, Senator Brandis.

Senator Brandis: Sentence one is wrong.

Senator SINGH: No, Senator Brandis, that is not how Senate estimates works, and you know that very well.

CHAIR: Order! Senator Singh. Senator Singh has now said that she did not really mean to talk about the newspaper article. But she has a question. So let's start from the beginning. What is your question?

Senator SINGH: Are you going to bring to the parliament a watered down version of the current exposure draft?

Senator Brandis: The only honest and thorough way to answer your question is to tell you this. We are considering the exposure draft in view of the community consultations and the 5,574 submissions we have received. As I have said many times we did not go through that exercise not expecting to listen to what people had to say to us. So—

Senator SINGH: So you are considering a different exposure draft than the current one that is out for public discussion? I am trying to clarify what the minister said.

Senator Brandis: My expectation—it is more than an expectation; it is the fact—is that that consideration will inform the final proposal that we bring to the parliament.

Senator SINGH: What consideration?

Senator Brandis: The consideration of the 5,574 submissions I have received. But there are two things we will not be doing. We will not be abolishing section 18C entirely. So all those people who say we should be doing so, I am afraid that is not the policy on which we were elected, and we will not be doing that. And we will not be failing to reform section 18C, because that is not the policy we took to the election, either. As to what if any changes to the exposure draft there may be, that is a matter about which no final decision has been made.

Senator SINGH: But you were taking into account the fact that there are now some 5,300 submissions, the majority of which—

Senator Brandis: I think I clarified that: 5,574.

Senator SINGH: I have not finished the question. The majority of those are against your exposure draft.

Senator Brandis: I did not say that.

Senator SINGH: Well, they are. Let's face it, and I think that is why you—

Senator Brandis: There is no evidence to that effect at all.

Senator SINGH: Excuse me. I am asking the question. That is exactly why you do not want to release them publicly—because you would be embarrassed by them—

CHAIR: Senator Singh, do you have a question?

Senator SINGH: Yes, I am getting to the question.

CHAIR: These are accusations and you are attributing actions to the Attorney-General that are your view and are not questions. So ask a question. Do not verbal the Attorney-General, although I am quite sure he can handle himself. Ask the question.

Senator SINGH: Minister, is it correct that you are going to take into account the 5,000 submissions, as well as the coalition backbenchers who are also against your exposure draft—

Senator Brandis: Senator—

Senator SINGH: I have not finished asking the question—

Senator Brandis: Okay, but can I finish answering when you finish asking, please.

Senator SINGH: You can, when I have finished asking. As well as a number of important community and legal bodies in this country, which have also asked you not to pursue the exposure draft—or not to change the law, in fact—and oppose the current draft—

Senator Brandis: Those are two very different propositions that you are running together—

Senator SINGH: Are they the reasons why you are now going to provide a watered down version of the current exposure draft you have out for public consultation?

Senator Brandis: There are so many false assertions in that question that I do not know where to being. But rather than, as it were, parse you questions and identify and refute each of the false assertions, which would take about 15 minutes, let me just respond to you in this way. I am considering the submissions that have been provided to the government in response to the public call for submissions. We will not be repealing section 18C in its entirety, because that is not the policy we took to the election. We will be reforming section 18C. That is the policy we took to the election. The starting point of this process is the exposure draft. I am considering the ideas that have been offered by various citizens and organisations who have taken an interest in this matter to consider whether or not improvements can be made to the exposure draft.

Senator SINGH: Why don't you just drop it? Why don't you just drop trying to repeal a law that works perfectly fine?

Senator Brandis: I do not think it does.

Senator SINGH: If it is not broken why try to fix it?

CHAIR: You have asked the question: why don't you drop it? I though you had answered that.

Senator Brandis: The answer to your question is a) because I do not accept that the law works well. I think the law has a chill effect on freedom of speech, which I think is invidious and dangerous in a free society. Secondly, we promised at the election that we would reform section 18C to protect freedom of speech, and that is what we are going to do.

Senator SINGH: If you think the law does not work well, what is it that you want to say to ethnic groups at the moment that you cannot say under section 18D? What is it that you want to say to Aboriginal people in this country at the moment that you cannot say under section 18D?

Senator Brandis: Senator Singh, I do not want to say anything in particular. I just want a law that serves the two values, neither of which is well served by the section, in its current form—namely, the protection of freedom of speech and the prohibition of racial vilification. The section, in its current form, does neither of those things well.

Senator SINGH: I will ask the question again—

Senator Brandis: No, don't ask the question again—

Senator SINGH: What do you want to say to Jewish people, the Aboriginal people, to Indian people at the moment that you cannot say under section 18D?

CHAIR: You have already answered that, Minister. I would not waste the time of the Senate.

Senator Brandis: I am sure your rhetorical flourishes will sound very nice on Radio National, but we know the game you are playing here—

Senator SINGH: No, Minister, I am angry about these changes, because what we have seen—

Senator Brandis: If you are angry then perhaps you should settle down, because you should not be angry in this process. You should be asking questions.

CHAIR: You and the minister have to let each other finish their sentence before you speak. The minister was speaking and you have interrupted him. Minister, would you complete what you were going to say.

Senator Brandis: I was asked a question. I gave an answer. Senator Singh asked the same question again. The answer will be no different.

Senator SINGH: Why have you seen it necessary to politicise race relations in Australia.

Senator Brandis: If I may say so I do not think my side of politics has done that. If anyone has done that it is your side of politics.

Senator SINGH: Your side of politics has done that. Isn't it the case—

Senator Brandis: If I may finish my answer, this is not about race relations. This is about the way in which a society that is respectful of freedom of speech deals with certain kinds of conduct. Your view is that that sort of conduct should be politically censored, and my view, which happens to be, among others, the view of President Obama, in a famous recent case, is that it should be exposed to the light of day.

Senator SINGH: You tell me, who in Australia is supporting your view? Other than the Adelaide Institute, Fredrick Toben, the IPA, Andrew Bolt; who is supporting your view?

CHAIR: Ian Macdonald, Helen Kroger—

Senator Brandis: The government that was elected by the Australian people last September on this very policy.

Senator SINGH: Is it not the case that a number of coalition members will cross the floor if you go ahead with these proposed changes?

Senator Brandis: Given that the proposed changes have not been finalised, because we are going through a process of community consultation, I do not know how you can possibly even ask that question.

Senator SINGH: That is why I do not understand why you do not just drop the changes altogether. I want to refer you to Arthur Moses QC, who provided some advice to the former Premier Barry O'Farrell, in relation to your proposed exposure draft.

Senator Brandis: I had read Mr Moses' opinion. I think it is wrong.

Senator SINGH: You think it is wrong.

Senator Brandis: Not only do I think it is wrong, but I will tell you, Senator Singh, that I was recently at an event which Mr Arthur Moses QC gave an extremely emotional speech about this issue. One thing we know is that good legal advice is clinical and it is analytical, and it is well informed by the law; it is not emotional. I do not think that Mr Moses' advice is valuable legal advice.

Senator SINGH: If Mr Moses became emotional I think that shows his sense of humanity, Minister.

CHAIR: Do you have a question?

Senator SINGH: Yes I do have a question. In relation to Mr Moses' advice—

Senator Brandis: I have read the advice, Senator Singh, and the point I would make to you is that a person who happens to be an SC cannot state a political position, or author a political tract, and then dress it up as legal advice merely because it is described as an opinion. What Mr Moses has given us is a political opinion, not counsel's advice.

Senator SINGH: My question is: Mr Moses gave advice to former Premier Barry O'Farrell. In 5.1 of his advice he said, 'The effect of the proposed reforms by the Attorney General for Australia is to radically narrow the protection that Australian citizens will receive from racial vilification. In particular, a new legislative right to engage in racial vilification in the course of public discussion would, for instance, open the door to Holocaust deniers to publish their opinions on websites and on social media in the course of public discussion.' Do you not accept that your reforms will enable Holocaust denial to occur?

Senator Brandis: First of all, I think Mr Moses' advice from point of law, and if you look carefully at his reasoning, is wrong. Secondly, as I said a moment ago, Mr Moses, who personally is very emotionally engaged in this issue, in the document from which you are reading and which I have read, has written a political tract—to which he is perfectly entitled—dressed up as legal advice.

Senator SINGH: We have got a letter, I understand of 23 of April, written to the Prime Minister by Senator Peris, Deputy Chair of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, stating that the government's proposal completely undermines moves towards reconciliation and constitutional recognition of Aboriginal people. Have you or the Prime Minister met with Senator Peris as she has requested in her letter?

Senator Brandis: No, and I have not seen Senator Peris' letter. May I say, Senator, that Senator Peris is the only Labor Party politician, of whom I am aware, who has put the Indigenous recognition referendum in issue on the basis of this discussion about section 18C. Every other Labor Party politician, of whom I am aware, has been wise enough not to go there, not to play that card. Both sides of politics are committed to the success of the Indigenous referendum, and those of us who are committed to the success of the referendum do not want to, as it were by raising this issue in that context, as only one senator has done to my knowledge, politicise that issue.

Senator SINGH: Senator Brandis, you started this. So, if it muddies into other areas—

CHAIR: Do you have a question?

Senator SINGH: Yes I do, Chair. You do not need to raise your voice.

CHAIR: I do not want statements.

Senator SINGH: My question is in relation to the Indigenous leader, Patrick Dodson. He may not be a senator but he is an Indigenous leader. Speaking at the annual Lowitja O'Donoghue Oration in Adelaide, he did make that connection. He said, 'You can't have recognition of the Aboriginal and Torres Strait Islander peoples, and then maintain the Commonwealth's ability to racially discriminate against us.'

CHAIR: What is the question?

Senator SINGH: How do you respond to that?

Senator Brandis: Well, (a) I have not seen Professor Dodson's speech; but (b) the Commonwealth has absolutely no intention of doing any such thing; and (c) it is not apparent to me from the remarks of Professor Dodson, which you have quoted to me, that he was speaking about this debate at all. The issue of the way in which the Constitution should deal with the matter of racial discrimination is, as I am sure you are aware, one of the issues with which the joint parliamentary committee, which is looking at this, is seeking to come to terms. It is nothing to do with section 18C.

Senator SINGH: Given that the National Congress of Australia's First Peoples, the Armenian National Committee of Australia, the Arab Council Australia, the Chinese Australian Services Society, the Korean Society of Sydney, the Australian Hellenic Council, the Chinese Australian Forum—

CHAIR: What is the question?

Senator SINGH: the Executive Council of Australian Jewry and many, many more groups oppose these proposed changes, the exposure draft, who does the government represent on this issue?

Senator Brandis: The government represents the majority of the Australian people who elected us on this policy last September.

Senator SINGH: Who do you represent in the broader community? I have just given you a huge range of groups that do not support your proposed changes.

CHAIR: The Australian voter.

Senator SINGH: On this issue, on 18C.

Senator Brandis: I cannot do better than the chairman's observation. We went to the election last year with a number of policies. In my area, this was one of our signature policies. We were elected.

Senator SINGH: Does the government agree with the Sikh Council of Australia's argument that the proposed changes remove any protection against public insults and humiliation on the grounds of race and culture of the person or group of persons.

Senator Brandis: Mr Chairman, could I have a point of order on this?

CHAIR: Just before you do, Senator Brandis, I think I know what your point of order is. I have been trying to counsel Senator Singh not to go with long statements of a list of people who share a view that she might share. That is not a question. If you have a question for the minister, ask the question. We do not need to know what everyone in Australia else might think. We are after the Attorney's view.

Senator Brandis: There are many people who disagree with what the government is doing, either because they would not wish to see section 18C amended or because they wish to see section 18C entirely repealed. I get that, and you should get that. There is more than one point of view about this in the community.

Senator SINGH: But they are weighted on one side—

Senator Brandis: If I may finish my answer, please, Senator Singh. It is a given in this debate that there is a variety of views. It is a given in this debate that a lot of people have interested themselves in the matter and feel very strongly about it. The most vehement comments I have seen are from people who say to me, 'You should repeal section 18C entirely.' But I know, as we both do, that there are many people who have the opposite view that section 18C should not be changed. If you are asking me what I think, you know what I think. I think section 18C should be changed and that the language that should be used in effecting that change is language which respects freedom of speech more than the existing language of section 18C does, but also gives more effective protection against racial vilification than the existing section 18C does too. That is my objective.

CHAIR: This will have to be your last question.

Senator SINGH: Senator, 88 per cent of people oppose your changes that you have put forward.

Senator Brandis: I do not accept that at all. That is not true.

Senator SINGH: You have got over 5,000 submissions. The majority—

CHAIR: What is the question?

Senator SINGH: I am getting to that, Chair. The majority—

CHAIR: You have told us all this before. It is just a waste of time. It is your time.

Senator Brandis: Senator, 88 per cent of people—

Senator SINGH: How can you ignore—

Senator Brandis: There has been no study that demonstrates that claim.

Senator SINGH: How can you ignore the majority of key community groups, the Law Council of Australia and a number of individuals who are against this change? How can you ignore them?

Senator Brandis: You obviously have not read the Law Council's submission. The Law Council, in its submission—

Senator SINGH: The Law Council opposes the current proposals.

Senator Brandis: You obviously have not—

Senator SINGH: The Law Council opposes the current proposals.

CHAIR: Senator Singh, you have asked the question; please let the minister answer.

Senator Brandis: You obviously have not read the Law Council's submission. The Law Council does not support the exposure draft in its current form but does accept the government's position that section 18C should be reformed.

Senator WRIGHT: I might move away from this. I might come back to it. I am going to ask now about the Community Legal Services Program. I will start off with the restriction on advocacy that is apparently being included in Commonwealth funding arrangements for community legal centres. This month, community legal centres were advised that they will no longer be able to do advocacy or law reform work with Commonwealth funding. First of all, I am interested to know how this restriction will be effected.

Senator Brandis: You say restriction, but in the way in which you have put your question you actually demonstrate my point that it is not a restriction at all. There are a range of tasks, a range of kinds of work, in legal services, or in the legal sphere, broadly understood, that community legal centres or access-to-justice providers could potentially do. The Commonwealth has decided to direct its funding to some of those activities in particular—that is, front-line services for people in need—

Senator WRIGHT: All right—

Senator Brandis: Please may I finish my answer? I have not finished.

Senator WRIGHT: Please do. I think we are playing semantics in terms of whether it is a restriction or not.

Senator Brandis: No, we are not playing semantics, and the fact that you think it is a semantic difference, I think, really reveals how you are missing the point.

Senator WRIGHT: It is the definition of 'restriction' that is semantic.

Senator Brandis: The Commonwealth funds some community groups to do certain things and it does not fund community groups to do other things. What it funds community groups to do reflects its priorities, in a budget-constrained environment, as to what is most important. What I have decided to do in this area of policy, where I am sure we would all agree there is not as much money as we would like to see to go around, is to spend all the money on the most important work—that is, acting for clients, for needy people in difficult circumstances, providing front-line services—rather than to spend that finite pot of money doing other things.

Senator WRIGHT: I come back to the question then. Whether we call it a restriction or not, it is a direction as to what work can be done and it is now saying that work that previously could be done with Commonwealth funding cannot be done.

Senator Brandis: So that it can be all spent on the people who need it most.

Senator WRIGHT: I call that a restriction; you may not—that is fine, but how will it be effected? My question is: will the Community Legal Services Program guidelines be varied to that effect? How will it be effected?

Senator Brandis: At the moment, as you are probably aware, because I acknowledge that you take a great interest in this area, Senator Wright—and your objectives are probably the same as mine, but I think I am just a bit more realistic about need—

Senator WRIGHT: How will it be effected?

Senator Brandis: We are at the moment waiting to receive the final Productivity Commission report into access to justice services. I think that you would understand that, if we are to develop the right policies, they should be as well informed as possible, and they will be informed in the end having regard, among other things, to the Productivity Commission report.

Senator WRIGHT: I am actually very pleased that you came to that, because that is a nice segue into the next question I had, which was about the interim Productivity Commission report that we have received. It is interesting because I would like to come back to the rationale, but I would go to the Productivity Commission report itself which strongly concluded in its draft report on access to justice arrangements in Australia that the legal assistance sector, which includes community legal centres of course as you know, is uniquely placed to conduct advocacy, and advocacy is a useful and efficient—that was the word they used—use of its funding. I was heartened to read that, because that is certainly a view that many community legal centres and legal stakeholders have put to me, and I will ask you more about that—

Senator Brandis: I know a lot of people agree with you, Senator.

Senator WRIGHT: What is interesting is that the productivity commission draft report actually acknowledged that very clearly, and also I saw reported in The Australian today—and it may or may not be accurate, but I would be interested to know—that the Attorney General's Department apparently told the ABC:

The findings of the Productivity Commission's inquiry into access to justice arrangements and the recent Review of the National Partnerships Agreement will inform future decisions concerning legal aid services …

You have that in the report, you have that acknowledgement, so what is the rationale? How does that square with what you have just said?

Senator Brandis: I think I, in fact, may have signed off on those words, Senator Wright.

Senator WRIGHT: You may have.

Senator Brandis: The fact is that advocacy services may be a useful thing. I do not dispute that. They may be a desirable thing. But I come back to the point I am at pains to make to you that, where resources are finite, we need to spend them on the people who need them most, and it is my view that spending those resources on flesh and blood men and women and children, actual clients in needy circumstances, should be the first call on the resources in the access to justice budget. If all of the needy people who need those services were to be catered for there would be no money left. In fact there is not even enough money in the system at the moment to cater for their needs. Advocacy services, a good thing though they may be, are in my view a secondary matter.

Senator WRIGHT: I hear that that is your belief, and I know you genuinely agree.

Senator Brandis: I have said that time and time again.

Senator WRIGHT: I know that we both would be wanting the same outcome, which is more access to justice for Australians. I have no doubt about that. What I am interested in is that you clearly said then that that was your view. You have also said that you will be guided by the Productivity Commission's review. You have employed an expert body to look into it, and they are renowned.

Senator Brandis: I think 'informed' rather than 'guided'. Let's not have a semantic difference.

Senator WRIGHT: Well, let's go back and look at that, because I think that is quite important.

CHAIR: Well, get to the question, would you?

Senator WRIGHT: I will, and the question is following on from the answer that I have already received, and I think I am entitled to do that because I am trying to make sense of it. You have said that you will be guided or informed. Basically you have asked an expert body, expert in efficiency indeed,—that is certainly what they would say about themselves—to give you advice on access to justice arrangements in Australia. Unless there is some reason to think that their final report would be different to their interim report, they have said that the legal assistance sector is uniquely placed to conduct advocacy and advocacy is a useful and efficient use of its funding. Will you be guided by that sentiment or not?

Senator Brandis: Two things, Senator. First of all, I think we should wait for the final report. Secondly, I share that sentiment, by the way, I am not disputing that sentiment, but it does not follow from the proposition you have put to me that, nevertheless, in the allocation of resources the first call on resources should be needy people. If there were more money in the system, it may be that other things that access to justice providers can usefully do would also be able to be funded, but given the finite resources available—do not forget that our public finances today are in the worst shape they have ever been in in Australian history by a factor of many times—

Senator WRIGHT: With respect, I am just watching the clock and I am going to come back to you. What if there were evidence that, in fact, by allowing advocacy to rectify systemic injustice you could actually assure that you would assist more of those very flesh and blood, needy Australians than by having services where you have a lawyer go to court, attend to them in court, spend a couple of hours dealing with their case and coming back?

What about the change of legislation through advocacy? You could actually change a situation where you would not have those very flesh-and-blood Australians going to court. Would that be something that you would take on board or would that be something that would convince you of the efficacy of meeting the needs and addressing injustice in that way?

Senator Brandis: My view is that where people are missing out on legal representation and legal advice, then that is a bad thing. If they miss out because there are not enough resources in the system, then an injustice is done. Whereas, the kind of advocacy work or law reform work of which you are speaking can still be done by those very access to justice providers in a voluntary way, rather than funded through government, and often they do. The many witnesses before this very committee over the years, who have come and commented on various pieces of legislation, very often do so in a voluntary capacity. It is not an either/or question. If the unrepresented litigate misses out on their day in court, they will never get that day in court back again. But if money is not provided for advocacy services, it does not mean that the legal aid provider cannot be an advocate anyway by volunteering their services in writing papers, appearing before parliamentary committee or all the other range of activity comprehended by that term.

Senator WRIGHT: What if effective law reform meant that they did not need their day in court because they were not going to be caught up in court without legal representation?

Senator Brandis: I understand the argument. It is a bit of an amorphous argument though, if I may say so, because you never know for sure, do you?

Senator WRIGHT: There are clear case studies that have been put to the Productivity Commission and, presumably, that is the basis on which they have formed their view about law reform that has then meant that people do not need to have legal representation in court because they are not ending up in court. There is evidence there if you want to see it. I will—

Senator Brandis: There are opinions there. I do not think we should fall for the delusion that all people who purport to speak as experts necessarily approach this issue value free. They are entitled to their values and opinions, of course.

Senator WRIGHT: What are the values of the Productivity Commission then? I would have thought efficiency and effectiveness would be—

Senator Brandis: No, you referred to evidence before the Productivity Commission.

Senator WRIGHT: That is what I am saying. I am presuming that they—

Senator Brandis: You referred your submissions before the Productivity Commission.

Senator WRIGHT: I am presuming that they looked at the evidence. Their interim report is based on the evidence that they have seen, so I am interested in what values they are bringing—

Senator Brandis: No. I think we are slightly at cross purposes. I was referring to your earlier question about the people who made submissions to the Productivity Commission.

Senator WRIGHT: Yes. Well, would you agree that the Productivity Commission is probably basing their recommendations on the basis of the evidence and submissions that they have received?

Senator Brandis: The Productivity Commission, as I say, is yet to deliver its final report. I am sorry to be repeating myself, but the sentence that you have quoted from its interim report is not inconsistent with anything I have said. It is a question of priorities where there are finite resources.

Senator WRIGHT: You raised the issue of evidence before parliamentary inquiries. We are all aware here that there is a plethora of inquiries into law reform in Australia, both in states and territories and also the Commonwealth—

Senator Brandis: Maybe too many.

Senator WRIGHT: Does the 'no advocacy' clause include submissions to government inquiries?

Senator Brandis: When we say the 'no advocacy' clause: 'no spending of Commonwealth money on advocacy' clause—that is what it is.

Senator WRIGHT: All right, does that include—

Senator Brandis: They are as free as anybody else in the community to be advocates.

Senator WRIGHT: Does that include work during work time or using resources that have been purchased with Commonwealth money on making submissions to government inquiries, such as submissions to inquiries held by this committee? I think they will need to know the detail.

Senator Brandis: In general, the answer to your question is 'yes'. There may be definitional issues at the margin. For example, you say, 'using Commonwealth provided resources'. If a particular legal service decides to spend some of their voluntary time preparing a submission to a parliamentary inquiry and wants to use the photocopier to print off copies of their submission, I do not think anybody is going to complain about that. But I think it is pretty clear what the government's position is, that the money that is used to fund access to justice should be used on access to justice—not on policies about access to justice.

Senator WRIGHT: Have you consulted with federal or state based policy makers, other governments who may have government inquiries and rely on the value that is provided by people at the coalface, often, in relation to the reform about the potential impacts of this?

Senator Brandis: I consult with people all the time and I visit community legal centres and legal aid providers very frequently.

Senator WRIGHT: Have you consulted specifically with your federal or state counterparts, both policymakers and people involved in political decision making, about the possible impacts of this restriction on the work that can be carried out with Commonwealth money in relation to providing information or submissions to law reform processes and inquiries?

Senator Brandis: There, as I think you should be aware, a framework whereby the Commonwealth and the state attorneys consult each other on a regular basis. It used to be called the Standing Council on Law and Justice, before that it was called the Standing Committee of Attorneys-General, and in future it is going to be called the Standing Committee on Law, Justice and Community Safety. That is the framework through which there is regular consultation between the law officers.

Senator WRIGHT: Did you raise this issue with them?

Senator Brandis: I have discussed this with various stakeholders, including other law officers, very frequently.

Senator WRIGHT: Have any of them expressed concern about the potential implications about the range of views they may be able to receive in relation to law reform inquiries?

Senator Brandis: There is no limitation on the range of views that they may receive, just as there is no restriction on the range of views that may be expressed. The fact is that people in the legal profession can and do and should give of their time voluntarily to provide access to justice, both in casework and in making submissions.

Senator WRIGHT: You say you visited community legal centres. You would be aware that many of the community legal centre lawyers work extremely long hours just in terms of trying to meet the demand.

Senator Brandis: I have very high regard for them.

Senator WRIGHT: There is the suggestion that somehow they will be able to find additional time. They already often work extra time, so the proposal that if they are committed enough they will find extra time to put together a submission to a government inquiry is—

Senator Brandis: I am not suggesting they are not committed enough. In fact, the very observation that you make in your question makes my point. These people work under tremendous pressure, both time constraint and resource constraint, and I want to see as much of that time as possible focused on their clients.

Senator WRIGHT: So that they can do the extra work in their own voluntary time, when they already put into the community in every way?

Senator Brandis: They can. You say they are stretched, and they are. I know that because I visit these centres and I have friends who work in these centres. The fact that you say they are stretched makes the point that there are not enough resources in the system already to deal with the problems of their clients. That is where the money should be spent.

CHAIR: This is turning into a bit of a debate. In Senator Kroger's absence, I will ask the questions. Could someone update me on the Indigenous Law and Justice program? What is the funding for that? How did it fare in the budget? Are there any new initiatives?

Mr Wilkins : That has been transferred to the Department of the Prime Minister and Cabinet.

CHAIR: I will not be able to ask that question, then. It is on our program. What was the funding in the budget for Family and Relationship Services? Are there any new programs or initiatives?

Mr Manning : The Family and Relationship Services program appropriation after MYEFO for the current financial year is $161.405 million.

CHAIR: Does that represent an increase or a decrease since the previous financial year?

Mr Manning : I gave you the figure for the current financial year. For next financial year, it is $165.895 million.

CHAIR: That is an increase?

Mr Manning : A slight increase, yes. It is a program that will be impacted by the indexation pause on a number of programs.

CHAIR: What does that mean?

Mr Manning : It is not currently reflected in the figure that is in the budget papers, but the government did announce a pause on indexation of 200 programs across government.

CHAIR: So the 165 includes the indexation?

Mr Manning : That is right. It will be, I would imagine, much the same as it is in the current financial year.

CHAIR: Without the indexation.

Mr Manning : That is right.

CHAIR: One would think that it would be. So it is not falling back apart from that?

Mr Manning : No.

CHAIR: Which programs are funded under that particular line item?

Ms Harvey : Under the Family and Relationship Services program, there are broadly three categories of things that we are funding. The majority of the funding goes to Family Law Services, which are administered by the Department of Social Services and form part of a broader program that they administer. In the appropriation this year, that was $155.353 million. They are the Family Relationship Centres and Children's Contact Services. There are about nine programs at the moment that fall under that.

CHAIR: That is funded by the department but it is spent by the department of family services?

Ms Harvey : That is correct.

CHAIR: I read or heard this somewhere. Is it in the area where people who are about to marry get a $200 voucher to get counselling? Is that in that program?

Ms Harvey : That is a program that will be administered by the Department of Social Services. I do not know if it falls in that particular program that this is part of. It may be separate. That would be a question for them.

CHAIR: Is it or is it not funded out of this department?

Ms Harvey : No.

Mr Wilkins : It is not funded by us.

CHAIR: Mr Wilkins, perhaps you can explain to me why it comes through this portfolio if it has little to do with this portfolio and it is spent by another portfolio?

Mr Wilkins : That is a reasonable question. It is historical. This was originally set up under the Howard government. It was a program that was pre-eminently trying to get people out of going to the Family Court, to take them outside of the law and allow them an alternative way of settling disputes—matrimonial disputes, disputes about kids, property and stuff like that—through a mediation, an ADR system. It was originally administered as well as funded by this department and then it became clearer that there were synergies with the work that the then families department was doing on a number of other fronts, with matters that did not have anything to do with the law as such, but they had a number of other programs. The idea was that perhaps they could administer it, which would cut down the costs of administration. Instead of having two departments administering two separate schemes, you would have one department administering it and this department just determining the policy parameters of that expenditure on the basis that it was still important for diverting people from the courts and into alternative dispute resolution. That is how it has come to be the way it is. It is a matter of history. The rationale, I guess, for it sitting here is that a pre-eminent interest around this is alternative dispute resolution and trying to divert matters out of the court system, where things are perhaps done more quickly, more effectively and with less confrontation.

CHAIR: There used to be a group operating in Australia. I remember opening one of their offices. I think they were called Family Relationships Australia. Are they still funded by the government? They were a quasi-private organisation.

Mr Wilkins : I do not know.

CHAIR: Are they still funded? I guess that is the question I should ask about this.

Ms Harvey : I would have to perhaps have a look or take that on notice. I am not familiar with an organisation called family relationships Australia. There is Family & Relationships Services Australia, which is the peak organisation for a number of the services that we fund under the Family Law Services program, but I do not know that there is a current family relationships Australia.

CHAIR: Thanks for that.

Ms Harvey : Sorry, there is Relationships Australia. That is a significant organisation in this area.

CHAIR: Perhaps that is what I am thinking of. Is that funded by your department?

Ms Harvey : It is.

CHAIR: To what extent?

Ms Harvey : I would perhaps have to come back on the total extent, but we do fund them to do a range of different things—to run Family Relationship Centres, for example. So there is a national body, and then there are also a number of state bodies that we fund to provide a number of the Family Law Services.

CHAIR: You say Family Law Services again. Are they the services that are now run by the Department of Families? If I ask you what they are, you cannot really tell me?

Ms Harvey : I can tell you what they are. We do not administer the money, but we are responsible for the policy and for determining which of those bodies provides those services. There are around 65 or 70 different providers, which is why it is—

CHAIR: What do they do?

Ms Harvey : They do a range of different things. Family Relationship Centres were set up as part of the reforms in 2006 to enable separating families—or people who might be separating—to go and get a range of services such as counselling or advice.

CHAIR: Or mediation.

Ms Harvey : Yes, they can access family dispute resolution.

CHAIR: So they are not staffed by public servants paid for by the taxpayer?

Ms Harvey : No.

CHAIR: They must be private charitable bodies, but those organisations get a block funding somehow from the Department of Families?

Ms Harvey : The appropriation is within this department, but the contract or agreement that is with them is administered by the Department of Social Services, because often the same provider might be providing services for them as well. So they might provide a wide range of services funded by different parts of government.

CHAIR: Not through your fault, but through my inability to understand, I am not sure I am much wiser, but thank you for trying.

Mr Manning : Chair, could I just give some clarification to make sure that we have not inadvertently misunderstood one of your earlier questions. Whilst the majority of Indigenous Justice Programs have transferred to the Department of Prime Minister and Cabinet, responsibility for funding the Aboriginal & Torres Strait Islander Legal Service still remains with this department. I just wanted to clarify that that is what your question was about.

CHAIR: It was.

Mr Manning : I can answer those questions. Sorry, Senator.

CHAIR: I might come back to that, because I have just about expended my time. If there is time I will come back in my next go.

Mr Manning : My apologies for that.

Senator SINGH: I do want to move on to some other issues in this group, but I do want to go back, Senator Brandis, to the Fairfax press article today. You did grab an iPad before and you were going to go through it—

Senator Brandis: I was handed an iPad.

Senator SINGH: You were handed an iPad. I just want to get some clarity around this front page of the Fairfax press today. Is what is written in this article in the Fairfax press—that you were in retreat on your reforms—correct?

Senator Brandis: I am not going to adopt words scribbled by some journalists who do not know what they are talking about.

Senator SINGH: So it is not correct?

Senator Brandis: That article is wrong and the journalist who wrote it did not, by the way, ask me, which strikes me as surprising. Would you not think, if a state of mind or an intention is being attributed to me by a journalist, that the journalist would have asked me what my intention is? Well, they did not. The article is wrong.

Senator SINGH: So you are not working on a further winding-back of the proposed law changes?

CHAIR: He has told you the article is wrong.

Senator SINGH: I am just clarifying.

Senator Brandis: You are not clarifying; you are confusing. And I know why you are doing it.

Senator SINGH: That is what the article says.

Senator Brandis: The article is wrong. That is my answer.

Senator SINGH: The article is wrong. We will move on to some other issues. Is there any new money in the budget in the Attorney-General's portfolio for family violence?

CHAIR: Avoidance of family violence, I hope.

Senator SINGH: Yes—avoidance of family violence.

Mr Wilkins : I do not think there is.

Senator SINGH: There is no new money for the AFP to work with state counterparts or for specialist legal services to help women?

Senator Brandis: The position, as I am advised, is that there are no additional programs and there has been no reduction of existing programs.

Mr Manning : The family violence prevention legal services responsibility transferred to the Department of the Prime Minister and Cabinet, along with the other Indigenous programs, as mentioned earlier.

Senator SINGH: How much of Legal Aid goes towards family law?

Senator Brandis: What do you mean by 'legal aid'?

Senator SINGH: How much of Legal Aid is used for female clients?

Senator Brandis: 'Legal aid' is a vague term. Legal assistance services are provided by the Commonwealth in three broad categories. They are provided primarily through national partnership agreements with the states and territories that fund state and territory legal aid commissions; they are provided through 'support the community' legal centres; and they are provided through a variety of individual targeted programs. All of those programs could globally be described as legal aid.

Senator SINGH: I am talking about Legal Aid, which you fund.

Senator Brandis: The Commonwealth's contribution under all three of those categories—is that what you mean?

Senator SINGH: No, I mean the Legal Aid service, like Legal Aid Tasmania.

Senator Brandis: Those are the Commonwealth and state legal aid commissions.

Senator SINGH: Yes, the commissions.

Senator Brandis: That is only a part of what the Commonwealth does in the broad sphere of legal aid.

Senator SINGH: Yes, I know. I am getting to the others. I am just starting with Legal Aid.

Senator Brandis: I am just trying to ask you to identify specifically what you are asking about.

Senator SINGH: And I have. It is Legal Aid commissions.

Senator Brandis: You did not say 'legal aid commissions' before. You said 'legal aid', and I had to ask you to explain with more—

Senator SINGH: I thought you would know that I was referring to Legal Aid commissions, but that is fine. I am happy to clarify.

Senator Brandis: I am not a mind reader.

Senator SINGH: Legal Aid commissions.

Mr Wilkins : I do not think we could answer the second component regarding how much went to women only.

Senator SINGH: I am happy if you can take that on notice.

Mr Wilkins : I do not think we can answer that, actually. We can possibly tell you how much goes on family law, but whether it is—

Senator SINGH: Can't you get that information from the state and territory Legal Aid commissions?

Mr Wilkins : I do not think we can. I could tell you how much goes to family law, but I am not sure I could tell you how much goes to a woman as opposed to a man.

Senator Brandis: You are assuming that the commissions maintain gender based statistics of all their matters. Some may, some may not. Whether all do, I do not know.

Senator SINGH: I would also like to know how many women use community legal centres.

Senator Brandis: It is really the same answer.

Mr Manning : I do not have that information. But, building on the previous answer, in relation to aid money given to states pursuant to the national partnership on legal assistance, the Commonwealth and states have agreed that that will be given to Commonwealth legal aid service priorities. The main priority there is family law priorities. It is not broken down much further than that, other than on granting that money the main emphasis is for family law matters, particularly where provided to assist children or people who have experienced or are experiencing family violence or other complex family law matters. The vast majority of that money is used for family law. Where there are allegations of family violence or risk of family violence, it is the main priority. But we do not have further detail than that.

Senator Brandis: I think you are probably aware, Senator, that there are some statistics collected by people like the Institute of Family Studies which show that the principal victims of family violence are women. I think one could comfortably say that, in relation to the first priority which Mr Manning has identified, more of that would be spent on female clients than on male clients.

Senator SINGH: I would agree with that. That is where it goes to the cuts you have made in this access to justice area. If the majority of clients are women—which I think we agree on—even though we do not have the data, what is the government doing about family violence? Obviously we know you are cutting services.

Senator Brandis: What we are doing is running these programs—which were not reduced in the budget. There were no new programs. The existing programs, many of which were established, I might say, by your government, have been continued.

Senator SINGH: But they are being defunded. There are funding cuts across the board.

Senator Brandis: That was not the evidence at all.

Senator SINGH: And that is going to impact on women accessing those services, women who are in need of those services.

Senator Brandis: That is the very point I was trying to make to Senator Wright before. That is why I have given a direction that the Commonwealth's contribution to legal aid is to be prioritised so it will be spent on case work. I do not know if the analysis has been done—whether or not more money in aggregate is being spent on case work as a result of the direction I gave that Senator Wright and I debated a moment ago. I suspect it is too early to know what those figures are. But, if there is a reduction in funding within the body of funding—there is a reprioritisation so that more of the money goes to case work—you may well find that, in aggregate, more money is being spent on the sorts of cases about which you were asking.

Senator SINGH: They cannot spend more money because there is less money coming in from the federal government. This is where you are in unclear waters, because you do not know what the effect is going to be on case work. You are hoping it does not affect case work.

Senator Brandis: I do not think you follow me.

Senator SINGH: I hope you are right, but I do not think you will be right. I think the cuts you have made to access to justice will affect case work.

Senator Brandis: You do not know that and I do not think you followed the point I was making to you. If, from a funding pool, less than 100 per cent used to be spent on case work but now, as a result of the direction I have given, 100 per cent will be spent on case work then, even if that funding pool might reduce somewhat, it may be that the increase in the relativity so that now 100 per cent of what is available is spent on case work means that, in aggregate, more dollars in nominal terms are being spent on case work than before. But it is too early to be able to do that analysis, because these directions have only recently come into operation.

Senator SINGH: I want to move on to other issues, but if you had an understanding of the work of community legal centres, you would know that one feeds into the other. The case work feeds into the advocacy and the legal reform—that informs government. You are just giving us words. You have just cut their budget. That is all you have done—and it will have an effect, I think, on women trying to flee family violence.

Senator Brandis: That is rubbish. It is for people like you and me, who are legislators, to deal with the shape of legislation and to take the primary responsibility for law reform. It is for people like the legal services providers, who are at the front line, to provide the front-line services to clients. I have made a decision that 100 per cent of their resources should be spent doing just that.

Senator SINGH: I want to take you to the announcement in last year's MYEFO of the cuts of $43.1 million to legal assistance in the areas of advocacy and law reform. Can you provide details? Which CLCs and service providers have received notice that planned additional funding will not be forthcoming or that they will have their funding reduced? Is there a list?

Mr Manning : We can provide a list.

Senator SINGH: Now?

Mr Manning : I can read you some. There are 57—

Senator SINGH: There are over 250 in the country.

Mr Manning : Fifty-seven community legal centres have received notification that additional funds that they had previously been allocated—that in relation to those funds, they would not get the final two years.

Senator SINGH: How will it be staggered? That will be in what years?

Mr Manning : It will be 2015-16 and 2016-17.

Senator SINGH: What will the impact on staffing levels be as a consequence of those cuts in those outlying years?

Mr Manning : I do not know. All I know is that—for example, I am just looking at the list of centres and the amounts in those years—they were amounts from $50,000 to about $120,000 per centre. I do not have with me information on what those centres were planning on spending that money on in two years time.

Senator SINGH: So $50,000 to $120,000 per centre?

Mr Manning : Sorry, it is $50,000 to $190,000, with the majority being between $50,000 and $100,000.

Senator SINGH: And you are taking that off 57 of the community legal centres in the country?

Mr Manning : That is right.

Senator SINGH: The removal of additional funding does not account for the $6 million cut scheduled in the budget papers for 2017-18, does it? I am trying to work out what services will be cut to achieve that measure.

Mr Manning : In relation to the community legal centre program, in addition to those 57 centres I have just mentioned, there are the environmental defenders offices as well which received a funding cut.

Senator SINGH: They are receiving no federal funding anymore; is that correct? After 30 June, the federal government will not fund environmental defenders offices anymore?

Mr Manning : I would not say 'will not fund'. Under the current proposal, that is correct. I cannot talk about the future.

Mr Fredricks : Just to be clear: that was the point in time at which those contracts with the environmental defenders offices were due to expire in any event, so the proper articulation of that measure is a nonrenewal of contracts that were expiring on 30 June 2014.

Mr Manning : That is correct in relation to their baseline funding, and they also received, like the other 57 I just mentioned, some additional top-up which was cancelled as at 31 December last year.

Senator SINGH: Given that the Productivity Commission's draft report Access to justice arrangements indicates that the 'commission considers that advocacy should be a core activity of LACs and CLCs, particularly peak bodies and the larger CLCs' and that advocacy can be an efficient use of limited resources, on what cost-benefit analysis was the decision to cut services, or the distribution of those cuts, made?

Mr Manning : The final decision was one that was taken by the government, so I do not think I am in a position to go into the—

Senator SINGH: But you have chosen 57. You must have gone through some process.

Mr Wilkins : No, the policy was to cut advocacy and that they should concentrate on casework. That is a very simple policy position. I am not sure what cost-benefit analysis you mean. The Productivity Commission is not God; it is contestable.

Senator SINGH: Well, it has been completely ignored in this situation.

Mr Wilkins : Well, it is only a draft—(a) it is a draft report and (b) it is—

Senator SINGH: How did you come up with the 57 that are going to be cut in the outlying years?

Senator Brandis: If I could offer the missing subparagraph (b): as well, the decision was made before the draft report to which you have referred, so it was not ignored. The Productivity Commission deals with productivity, not about policy choices in all senses. A policy decision was made to concentrate resources where they were needed most, and that was made before the draft report was received. And it would not have been affected by the draft report, because that reflects the values of the government that the neediest people should be looked after first.

Senator SINGH: Getting back to these 57 that are having their funding cut, are there going to be any more? Is that it?

Mr Fredricks : To extend the Attorney's answer just provided and to relate to the 57, the 57 CLCs were those in which there was a direct relationship between the Commonwealth and the CLC. There was a direct relationship between the Commonwealth and 57 CLCs, and the government has implemented the policy as articulated by the Attorney-General in relation to those relationships.

Senator SINGH: How were the 57 chosen?

Mr Fredricks : Fifty-seven represents the finite number of CLCs that are currently in a direct funding relationship with the Commonwealth.

Senator SINGH: You are saying that all the other CLCs are not in a direct funding relationship with the Commonwealth?

Mr Manning : There are 138 community legal centres, and the majority have a tripartite agreement between the Commonwealth, the states and the community legal centres. In addition, 57 of those 138 had been given some additional funding at a time in the past, two years ago, to run over four years. Some money was reallocated from the Family and Relationship Services program we were discussing before and some was obtained from some other sources. In implementing the MYEFO decision, the final two years of that four years of direct funding between the Commonwealth and the states for those 57 centres has been terminated.

Senator SINGH: I want to ask about the merger of the tribunals.

CHAIR: This might have to be your last question, Senator.

Senator SINGH: This is a new area.

CHAIR: But you time has finished, Senator Singh. I am just trying to be fair to everyone. Senator Ludlam, you have 15 minutes.

Senator LUDLAM: Thank you. Can we bring forward anyone in the room who has expertise around copyright policy. I will probably direct some of these questions to you, Senator Brandis. Given a speech that you made in February and subsequent media commentary around government policy on copyright, can you illuminate us? There was reporting earlier this year, in February, subsequent to your speech to the ADA, I think, that you had taken a couple of propositions to cabinet on graduated response.

Senator Brandis: No, I did not say that. If I saw that reporting at the time, I have forgotten it. In any event it is incorrect. I have taken no submission to that effect.

Senator LUDLAM: It is actually the second time today I have heard that. Let us start from a clean slate then: what is government's policy and what is happening on copyright policy?

Senator Brandis: My attitude to this is broadly as is set out in the speech that I gave to the Australian Digital Alliance, which was—as you are probably aware, Senator—only a day or so after the ALRC report was received. That report is under consideration. As we said at the time of the election last year, as a matter of fact, the government is of the view that there does need to be reform to copyright. One of the issues— but it is not the only issue which has been exercising my min—is piracy. Unlike the United Kingdom, New Zealand, Canada, the United States, France and many other comparable countries, Australia lacks effective protection against online piracy. Australia, I am sorry to say, is the worst offender of any country in the world when it comes to piracy, and I am very concerned that the legitimate rights and interests of rights holders and content creators are being compromised by that activity. You were not here for the Arts estimates, Senator, but I should tell you that of all the communities who were most concerned about this none is more concerned than arts practitioners—singers and film makers, people in those industries who see the fruit of their creative endeavours being stolen through piracy. So we want to do something about that.

Senator LUDLAM: The ALRC was precluded from dealing with questions of piracy and illegal file sharing, so it did not address the question at all.

Senator Brandis: The ALRC reference was a reference of the previous government.

Senator LUDLAM: Yes, I know. But it did not address the piracy question. I might set aside the ALRC's review for the moment, given that time is short, and concentrate on the piracy question. Where are you getting your information from to form your views? Who are you consulting and through what vehicle are you forming your views, as you have just presented to us?

Senator Brandis: Those are my views, Senator. The views that I expressed in the speech to which you referred are legal and philosophical views. In particular, I want to stress a point I made in that speech: the principles governing the protection of intellectual property, and the reasons we do that, do not change merely because the platforms change.

Senator LUDLAM: I was not suggesting that they did.

Senator Brandis: But you asked me where I got my views from. That is my view. I do not know; I have got that view on the basis of more than 40 years' reading about law and philosophy, I suppose.

Senator LUDLAM: Have you spoken to any consumer groups, such as CHOICE or ACCAN—who would probably contest your view that a graduated response, or three strikes, or any of those kinds of propositions—

Senator Brandis: Well, I am very—

Senator LUDLAM: I had not finished my question, Senator Brandis—or to any of those countries that you just listed at the outset that do have some versions of those schemes? If that is actually not working very well in those jurisdictions then there might be other ways to tackle the problem more effectively that still preserve artists' right to be paid for their work.

Senator Brandis: Either I, or my office, like Mr Lambie, who has become something of an expert in this field, speak to stakeholders, from all points of view, all the time, and we have been doing that well. Since we have been in government we have been doing it, and before that too, while we were in the opposition. I am very familiar with this debate. I have done a lot of reading about it. You asked about individuals; I doubt that there is a stakeholder group who, at one stage or another, has not either spoken to or communicated with me or my staff.

Senator LUDLAM: Would that include CHOICE, for example?

Senator Brandis: Mr Wilkins reminds me that when Mr Wilkins and I were recently in the United States and the United Kingdom, we consulted with industry leaders in those countries to learn from the experience in those jurisdictions as well.

Senator LUDLAM: I know industry leaders have very strong views on these things. I am asking you about groups like Choice or ACCAN or others who might represent the consumer interest or the public interest.

Senator Brandis: I am sorry, Senator Ludlam; you say 'the public interest'—there is a very strong public interest in the protection of private property, and that includes the protection of intellectual property.

Senator LUDLAM: Sure. You are not going to answer my question, are you?

Senator Brandis: You asked what I had done to inform myself about the public interest.

Senator LUDLAM: I have asked you twice whether you have met with CHOICE.

Senator Brandis: You keep interrupting me, Senator Ludlam. Let me finish my answer please. If you choose to interrupt me then you cannot expect to get an answer. Let me answer your question. You identify the consumer and the public interest as if it excluded the right of content creators and people in the creative industries to protect the fruits of their intellectual and artistic endeavour, and I challenge that entirely. There is a very strong public interest in Australia doing that. That is an interest that the government is very concerned to protect—not just to protect those individuals but to protect the public interest of all Australians in having a thriving, creative sector.

Senator LUDLAM: Have you met with CHOICE or ACCAN in the process of forming your views?

Senator Brandis: I cannot tell you whether my office has done so. I imagine they have.

Senator LUDLAM: 'Have you?' was the question.

Senator Brandis: I cannot remember whether I have done. I may well have done because I have been involved in this debate for several years.

Senator LUDLAM: I am talking about: in the formation of the speech that you gave to the ADA in February. You cannot recall?

Senator Brandis: No, that is not what I said. I said: I have been involved in this debate for several years and over those several years I have met with numberless stakeholders from all points of view, so I imagine I have but it may have been a while ago. In relation to the preparation of the particular speech about which you asked me, it is really not my practice to write speeches on the back of meetings with stakeholders. If you have read that speech—

Senator LUDLAM: I have.

Senator Brandis: you will see that it is a conceptual speech rather than a speech that goes into specific policy detail.

Senator LUDLAM: Is there a task force or a particular working group or unit—I will let you choose the most appropriate language—within the department that is working on copyright reform at the moment, either the narrow issues that I am questioning you with here or the broader issues?

Mr Wilkins : There is certainly a group of people who are working on copyright issues.

Senator LUDLAM: Great. How do we identify that group? What is their formal standing?

Mr Wilkins : What do you mean by, 'How do we identify them?'

Senator LUDLAM: What is their formal standing?

Mr Minogue : It is in the civil law division of the department. Given the comments the Attorney and government have made, we took a group of people offline to basically have the capacity to do some fresh thinking about copyright. It is essentially an internal working group.

Senator LUDLAM: What is its title? Who is its secretary?

Mr Minogue : It does not have a secretary. It is just a group within the department.

Mr Wilkins : It is part of the department.

Senator LUDLAM: I have been led to believe that there is some kind of formal task group that had been stood up to examine these issues. You are telling me that is not the case?

Mr Wilkins : I think it is semantics actually. There are a group of people who are working on this stuff.

Senator LUDLAM: And what is the name of that group?

Mr Walter : They do not really have a formal title. There are four people. They work in my branch. We are calling them the copyright team at the moment, for want of a better phrase.

Senator LUDLAM: Presumably they are examining, among other things, some of the issues that I have been discussing with the Attorney.

Senator Brandis: I am not sure what issues you have been discussing, because, although you have been asking me about my views and who I have met with, you actually have not identified any particular issue at all in your question.

Senator LUDLAM: You have not been paying very close attention. I asked you about graduated response and—

Senator Brandis: You mentioned graduated response once, as a proposal that is favoured by some. Is that what you mean when you talk about the issues? There are a lot of issues here. I am happy to talk to you about them but—

Senator LUDLAM: Let us just stick to that one.

Senator Brandis: Yes. What is your question?

Senator LUDLAM: Is the task group examining graduated response as a potential solution to piracy or illegal file sharing?

Mr Wilkins : Yes. That is one option.

Senator LUDLAM: That was easy, wasn't it?

Senator Brandis: I don't know why you are being sarcastic towards my officials.

Senator LUDLAM: Because there seems to be a certain amount of ducking and weaving.

Senator Brandis: No. There is no ducking and weaving.

Senator LUDLAM: All right. Let's proceed.

Senator Brandis: If you ask specific questions, you will get specific answers.

Senator LUDLAM: I am attempting to. Let's proceed. Under, I think, the previous two or maybe three Attorney-Generals under the former government, there were quite active consultations—which I think you were involved in, Mr Wilkins—between rights holders and internet service providers. Are those talks continuing in any shape?

Mr Wilkins : And consumers. ACCAN was part of that too.

Senator LUDLAM: Eventually. Initially they were not. I am reasonably familiar with the history of this one.

Mr Wilkins : Well, they were part of it, weren't they, then? You know that.

Senator LUDLAM: Eventually.

Mr Wilkins : I am not sure what 'eventually' means.

Senator LUDLAM: One of them had to conflict themselves out, I believe, or maybe both of them. But it is all right. Let's not quibble. Are those talks still afoot?

Mr Wilkins : No.

Senator LUDLAM: They are not?

Senator Brandis: I think, Senator—this is not really a political point—if you have followed this issue you would probably be aware of a decision by the High Court called the iiNet case—

Senator LUDLAM: I am very well aware of it.

Senator Brandis: which was delivered in June 2012. I think it is fair to say that, after the High Court delivered that judgement, not quite two years ago, a lot of the pressure on the ISPs to come to the table went away because the ISPs had a very comprehensive victory in the iiNet case. I do not say this about all of the ISPS, but certainly in relation to some of them, I think, both the previous government and the new government have found that, since the iiNet judgement came down, there has been less willingness on the part of some ISPs to come to the table. That being said, I do not want to say that that is the case in relation to all of the ISPs. For example, only earlier in the month I had a very long conversation with Mr Thodey and Mr Shaw from Telstra and, if I may say so publicly, I think Telstra's contribution to this issue and their willingness to work to find a solution to the piracy issue, which is really unaddressed in Australia, has been very commendable.

Senator LUDLAM: Senator Brandis, you did bring quite a sense of urgency to the piracy question in your speech to the ADA, so what—

Senator Brandis: You might think so. I would not use that word to characterise my speech. I think it is an important issue. It something that the government is addressing, but of course we want to get the right answer. It is a contested policy space and, being a Liberal government, what we want primarily to do is to see if the various industry participants can be brought to the table and find themselves in agreement rather than having a solution imposed from on high in the way that some would have had it.

Senator LUDLAM: I would call this a rare moment of agreement between us. So what is the government actually doing to progress the issue, if there are talks afoot?

Senator Brandis: The matter is under active consideration right now. I had a meeting with certain of the key decision makers in this matter as recently as seven o'clock last night.

Senator LUDLAM: Who were those key decision makers?

Senator Brandis: I am not going to be disclosing in a public forum who I meet with, Senator.

Senator LUDLAM: Well, why bring it up at all?

Senator Brandis: Because I am using that to illustrate the point—

CHAIR: Under very active consideration.

Senator Brandis: that this is a matter—

Senator LUDLAM: This is an active consideration, okay.

Senator Brandis: with which I have been seized more than, I think, any other issue in the last fortnight. This is very, very actively being pursued by the government right now.

Senator LUDLAM: Okay.

CHAIR: That is your time, Senator Ludlam. We will come back to you later.

Senator SINGH: The budget papers indicate that the AAT will take on responsibilities of four existing merits review bodies in addition to its current responsibilities. I think that implements recommendation 54 of the Commission of Audit. Is the department aware of any level of consultation that led to that recommendation by the commission?

Senator Brandis: Sorry, what was the question? Just say it again.

Senator SINGH: I am talking about the Administrative Appeals Tribunal and its taking on the four existing merits review bodies, which is an outcome of recommendation 54 of the Commission of Audit.

Senator Brandis: What is the question?

Senator SINGH: Is the department aware of any level of consultation that led to the recommendation by the commission? Or has it just been plucked out of—

Senator Brandis: The department is not—

Senator SINGH: You have picked up the recommendation, so I am trying to see if you have some detail on it.

Senator Brandis: No, no. Senator, why is it that the Labor Party seems to be a causality-free zone? You have the same problem of attributing cause and effect as Senator Carr had earlier on. The decision that was made by the government in relation to these matters, although it was a recommendation of the Commission of Audit, had been under consideration well before the Commission of Audit reported.

Senator SINGH: Oh, okay. Right.

Senator Brandis: I am sorry; I have not finished my answer. It is something that I myself had discussed with the President of the AAT, Justice Kerr, last year. Senator, if you were familiar with the issue, you would know that it is a proposal that was first raised as long ago as the early 1990s or the late 1980s during the Hawke-Keating government—the idea of having a consolidated Commonwealth merits review tribunal, just as several of the states have consolidated merits review tribunals. I know you want to use this Commission of Audit as some sort of bogeyman, but—

Senator SINGH: No, I—

Senator Brandis: this is actually a very old proposal. It is a very old proposal.

Senator SINGH: No, you are implying that, but I was asking a question.

Senator Brandis: And you have got an answer, so you should ask your next question now.

Senator SINGH: So the Commission of Audit picked up on the government's policy position on that. The budget notes that details of the new arrangements will be developed in consultation with key stakeholders.

Senator Brandis: Yes.

Senator SINGH: Was the decision to amalgamate these tribunals taken in consultation with key stakeholders?

Senator Brandis: Yes.

Senator SINGH: Which stakeholders?

Senator Brandis: My principal discussions were with the AAT, and I know there were discussions at various levels between government and other merits review tribunals and between the AAT and other merits review tribunals, and between departments as well, as Mr Wilkins reminds me.

Senator SINGH: What impact are these amalgamations likely to have on services?

Senator Brandis: They are likely to improve the services because you will have a single merits review tribunal which will have the benefit of efficiencies. Because the practice of the merits review process will be routinised across what was previously several tribunals that operated in their own fiefdoms, as it were, it will be routinised within the AAT. We expect that clients or applicants of merits review will have better service which will be delivered at less cost to the taxpayer.

Senator SINGH: That was my next question: what savings will be achieved from these amalgamations?

Senator Brandis: If you look at the budget measures paper, I think you will find that there is a figure in there.

Mr Wilkins : It is not principally about saving money at this point. As the Attorney said, it is about getting greater effectiveness and efficiency.

Senator SINGH: He also said it would cost less, so that is one of my questions.

Mr Wilkins : Yes, and it should, but Finance has not booked a number in the budget for that yet because it still needs some more work on exactly what that means and the speed at which it will go. Some of the doctrinal issues are not uncomplicated in terms of legal law reform. It would be premature to put a number on it.

Senator SINGH: I also want to ask if there will be any staff affected and also which offices would close. Are they things that have not yet been worked out as well?

Mr Wilkins : They have not been worked out. Undoubtedly, there will be some implications of that sort, but I cannot tell you what they are.

Senator SINGH: With those three questions, could you take them on notice?

Mr Wilkins : I am sure there will be lots of opportunities to discuss that in the future. I cannot take it on notice in the sense that I probably will not be able to give it to you next week or next month.

Senator SINGH: I do not think that I have ever had a question on notice back in a week.

Mr Wilkins : No, no. I am saying this will take some time.

Senator SINGH: So, what is the time period by which these amalgamations will be done?

Mr Wilkins : Mr Manning, do you want to explain what your timetables are?

Mr Manning : The proposal is that the amalgamated tribunal will commence operations on 1 July 2015.

Senator SINGH: What assurances has the department made that this decision by government will not compromise the actual or perceived right to second tier review?

Senator Brandis: Can you explain what you mean by that please?

Senator SINGH: As you said earlier, this is not the first time that the amalgamated merits review agency has been proposed—

Senator Brandis: I am just asking you to tell us what you mean when you use the expression 'second tier review'.

Senator SINGH: Let me finish—including a review by Mr Stephen Skehill as recently as 2012. But the proposals have foundered on the risk of compromising second tier review rights. That is what my question is.

Senator Brandis: What do you mean when you use expression 'second tier review'?

Senator SINGH: My question is in relation to second tier review rights.

Senator Brandis: But what do you mean by that?

Senator SINGH: I am asking for an answer to the question.

Senator Brandis: I am asking you to clarify the question, Senator.

Senator SINGH: I am asking for an answer to that question from the department.

CHAIR: The answer is that you do not know what she is talking about so you cannot answer her.

Senator SINGH: No, I am asking for an answer.

Senator Brandis: Apparently you do not know what the expression means.

CHAIR: The hearing is now suspended.

Proceedings suspended from 17:29 to 19:03

CHAIR: We are continuing in group 2, which comprises Access to Justice Division; Civil Law Division; International Law and Human Rights Division; General Counsel (International Law); and Office of Constitutional Law; as well as program 1.3, Justice services; program 1.4, Family relationships; and program 1.5, Indigenous law and justice. Senator Singh, you were in continuation.

Senator SINGH: I want to ask about the Marrakesh treaty and the progress the government has made towards the signing of the treaty. I understand the treaty is open for signatures until 26 June this year and that it has now been signed by 65 countries, including the UK and the US. When will the Commonwealth government sign the treaty?

Mr Fredericks : Senator, I think you appreciate that that is a difficult question for an official to answer.

CHAIR: What was the question?

Mr Fredericks : The question was: when do you think the government will sign the treaty? At the end of the day, the best answer I can give as an official is that that is a matter for government.

CHAIR: That is a matter of opinion, which officials are not required to answer.

Senator SINGH: Where is the minister?

Mr Fredericks : I understand he is in another meeting.

Mr Sheehan : We expect that the minister and Roger Wilkins will be back shortly. They were in a meeting that was scheduled before the dinner break, so we should see them very soon.

Senator SINGH: Is that question something I should hold until they come back or can it be answered now?

CHAIR: It is asking an opinion of an officer.

Senator SINGH: It is not an opinion; it is asking when it is going to be signed.

CHAIR: 'When do you think it is going to be signed' is asking for an opinion.

Senator SINGH: No, it was not asking for an opinion. The question was: when is the treaty going to be signed?

CHAIR: The officer does not know.

Senator SINGH: Should I hold that question or should I hold the whole issue over until the minister is back? Is that what you would prefer, Mr Fredericks?

Mr Fredericks : That is a wise course, in the sense that I cannot give an answer other than as an official. That question is a matter for government.

Senator SINGH: All right. I will hold that over. That is fine. We will wait until the minister is back for that. I really need the minister here.

CHAIR: Perhaps I could ask some questions. I understand that with this department there is still the issue of the Indigenous legal assistance program. It was estimated for 2013-14 to be some $74.9 million and in the budget it is $74.311 million. That looks to be a slight reduction. Can you tell me what constitutes the Indigenous legal assistance program?

Mr Fredericks : The Indigenous legal assistance program is essentially the program through which the Commonwealth government provides money to ATSILS, Aboriginal and Torres Strait Islander Legal Service, providers—essentially providers of Indigenous legal aid. The Commonwealth government provides direct grants to ATSILS in each of the states, which they then utilise in order to fund legal assistance for Indigenous people in Australia.

CHAIR: So the money is allocated by the states?

Mr Manning : No, Senator. For this program the money is funded under an agreement between the Commonwealth and each of the eight Aboriginal and Torres Strait Islander legal services.

CHAIR: And the eight means there is one in each state?

Mr Manning : There are two in the Northern Territory.

CHAIR: How are they constituted?

Mr Manning : They each comprise independent boards.

CHAIR: They are not established by the Commonwealth or state governments?

Mr Manning : No.

CHAIR: So they are community organised groups. How does the Commonwealth determine which payments go to whom and how much? What is the—

Mr Fredericks : Methodology?


Ms Quinn : There is an established funding allocation model that addresses population distribution and also some socioeconomic factors. That has been in place for quite some time. The money that exists in those funding agreements goes through until 30 June next year. All of that funding has been allocated under that model.

CHAIR: You say it depends on populations of Indigenous people, do you?

Ms Quinn : Yes, but there are a range of factors. There is a lot of technical analysis behind the funding allocation model, but it certainly deals with factors other than just simply population. It also—

CHAIR: Who determines that? Is that something that is done in your department?

Ms Quinn : It was a contracted service, as I understand it, that was done—and I would have to check this—around four years ago. It was based on census data and a combination of other quite complex statistical information.

CHAIR: So it was a contract signed four years ago that determined the funding for the next four years?

Ms Quinn : Yes.

CHAIR: So in that context it is a fixed level of funding or a fixed proportion of the funding.

Mr Fredericks : That is right. The shares are fixed between the providers. They have been for four years and they will be until June 2015. In terms of the application of this program at the grassroots level, it might interest you to know that ultimately the services are delivered at 82 permanent locations throughout Australia as well on court circuits—bush courts—as well as in specific courts, like Koori courts, Nunga courts and Aboriginal courts. Those are the sort of organisations that are ultimately recipients of federal money.

CHAIR: Does the Commonwealth have any oversight of those groups? Do we know whether they are employing too many or not enough lawyers or too many or not enough hangers on? My limited understanding of them is that they do a pretty good job, but I am just wondering what the oversight is by the Commonwealth.

Ms Quinn : All of the Indigenous legal services are funded by the Commonwealth—100 per cent Commonwealth funding—through direct funding agreements with our department. We have ultimate oversight of risk management profiles of how an organisation is running, acquittal of the money that is being spent and also performance reporting standards.

CHAIR: But your contract is with the state group or, in the Northern Territory's case, to—

Ms Quinn : Each provider, yes.

CHAIR: But then that provider could have several units—

Mr Manning : Several sites at which they provide services; that is right.

Ms Quinn : The services are of different sizes and different make-up depending on the location and the needs. Also, some services may well receive other funding through other government arms. I am just talking about the Indigenous legal assistance program funding.

CHAIR: Is it easy to get me on notice an indication of how many units there are? In Queensland, for example, which is my home state, is there only one unit that gets the funding or is there a unit in Brisbane, one in Townsville, one in Mount Isa and so on?

Ms Quinn : There is one organisation that is funded to provide services across all of Queensland. They have different sites in different locations. They also do remote and rural outreach. The make-up in different states is quite different, as you would imagine. In the Northern Territory the arrangements for service provision are quite different to, say, in Victoria. That is about the individual service assessing the needs in their region.

Mr Fredericks : On notice, we would be able to provide you with a list of the locations in which legal services are provided. My understanding is that they are provided in 82 permanent locations across Australia at the moment. On notice, we could give you a list of all of those 82 locations.

CHAIR: Do they have an annual report to the government? What is the accountability? Or is it just an acquittal through the department?

Ms Quinn : Each organisation produces its own published annual report, and that informs us as well. But we have regular reporting meetings with each service. Also, they submit financial data, I think monthly, that is uploaded. Then on a six-monthly basis we have performance meetings either in person or by video.

CHAIR: Are there reports to the parliament every now and then?

Ms Quinn : Not that I am aware of.

Mr Fredericks : Not to parliament, but ultimately to our department.

CHAIR: Is it mentioned in your annual report?

Mr Fredericks : Yes, it is. Because it is a substantive program of the department, it is one of those on which we do report in the annual report.

CHAIR: When does your annual report come out?

Mr Sheehan : I will just check and see if we have a date.

CHAIR: It does not really matter. There used to be a time when estimates committees were arranged so that not only could you do the estimates but you could actually inquire into the annual reports at the same time. But the last government skilfully made sure that the annual reports came out the week after estimates.

Mr Sheehan : We will get the date for you.

CHAIR: It is not important. Does anyone have any questions that the officials could answer? I understand that both Senator Brandis and Mr Wilkins are at a National Security Council meeting that was called for today, but I do not want to hold the committee up.

Senator WRIGHT: I have a couple of questions on that same topic. In a sense, I am uncomfortable not having the minister and the head of department here. Some of these questions are probably information only, but some of them may border onto policy, as I may have to come back to them. At least if I can use the time that would be helpful, I think.

Mr Fredericks : Senator, we are happy to flag if we feel that it is not a question that we can answer.

Senator WRIGHT: My question is: are the cuts to the National Aboriginal and Torres Strait Islander Legal Services, the NATSILS, the same as were announced in last year's MYEFO?

Mr Fredericks : Yes.

Senator WRIGHT: Exactly the same figure?

Mr Fredericks : Yes, there have been no changes.

Mr Manning : Essentially, the budget is recording the decision which was made in the context of MYEFO.

Senator WRIGHT: Is it correct that the quantum of the cuts is $13.4 million over the forward estimates period?

Mr Manning : Yes.

Senator WRIGHT: I am interested to know how the cuts will be distributed across individual services.

Mr Manning : We do not know that yet. In relation to the cuts, the NATSILS funding will continue until 30 June 2015. There was also funding for the University of New South Wales, and that funding agreement expires on 30 June 2014. The rest of the savings are in the out years—2015-16, 2016-17 and 2017-18—and their impact will be determined as part of the government's revised legal assistance arrangements. So, essentially, all of the current ATSILS agreements are continuing till the financial year ending 2015. At that point in time, new arrangements will be put in place which will implement those savings.

Senator WRIGHT: So there will not be any cuts taking effect until 30 June 2015?

Mr Manning : That is right.

Senator WRIGHT: You have just explained about the eight ATSILS, but NATSILS includes the coordinating of the national body. Do they have a separate funding contract agreement and what is happening with that?

Ms Quinn : Yes, they do.

Mr Manning : They do, and it will continue until 30 June 2015 as well.

Senator WRIGHT: One of the concerns I have raised in estimates before is the uncertainty there. Staff are very uncertain about their futures—leaving, pre-empting being terminated and so on. So, in a sense, the uncertainty continues for another 12 months, in that there are not decisions that can be conveyed at this point about what will happen as at 30 June next year and into the forward years after that. Is that right?

Mr Fredericks : In essence, that is correct, but it is correct for what we would say is an appropriate reason. Obviously, you are aware that the government has received a number of reports in relation to legal assistance generally, including in relation to ATSIL funding. Essentially, the government is in a position where it can consider that information and determine what sort of reform it wishes to implement in legal assistance, including in relation to ATSILS, commencing from 1 July 2015.

Senator WRIGHT: At the last estimates I was asking about any analysis or modelling that might have been done in relation to the cuts, any prediction of incarceration rates of Indigenous Australians and any potential increase in those. Everybody is aware that there is a disproportionate rate of incarceration of Indigenous people in Australia. People are working hard to turn that around, without much success, it seems at the moment, sadly. Has there been any modelling or analysis since the last time I asked about that?

Mr Manning : There has not been.

Senator WRIGHT: The other question I had last time was: what provision is going to be made in terms of protecting so-called front line services? It was not really clear to me what that means. I do not know if you have a clearer definition of what front line services are now. How will front line services be quarantined from the cuts that are to take effect next year?

Mr Manning : Because the arrangements across all of the legal assistance programs are yet to be developed and negotiated with states and territories, I cannot answer that question other than to refer back to the Attorney's comments earlier about that being the government's focus in terms of how legal assistance funding is used.

Senator WRIGHT: I have a question about NATSILS, but it goes back to some questions that were being asked earlier in relation to cuts to community legal centres. The cut of $6 million to community legal centres in 2017-18 and the fact that the savings were to be found in 57 centres across Australia—was that was the evidence or the information that was given earlier? Am I right on that?

Mr Manning : Yes.

Senator WRIGHT: What I am wanting to know is, will Aboriginal and Torres Strait Islander Legal Services be affected by that $6 million cut?

Mr Manning : No. You mentioned a figure earlier of $13.34 million—that is the total savings from the Indigenous legal assistance program over the forward estimates. The community legal centre savings are separate.

Senator WRIGHT: So there will not be any others that have, at least, been identified at this stage.

Mr Manning : No. There was the savings at MYEFO and then those in the budget in relation to Legal Aid, and that is it.

Senator WRIGHT: Do you want to go to other questions on NATSILS at this stage?


Senator SINGH: We will come back to that later when the minister is here. I have questions or the chairs might have questions.

CHAIR: Senator Wright, if you have any questions on any of the group 2 things that you think the officials can deal with that you do not require a ministerial view of, please ask them in your 15 minutes.

Senator WRIGHT: I have a few more that I think are information. I might need to try and ask the Attorney if it is clear that they are not information. I ask about the review of the National Partnership Agreement on Legal Assistance Services. I understand that it is complete, and you have indicated that in your answers. When will the review report be publicly available?

Mr Fredericks : That is one of those questions I have to answer is a matter for government.

Senator WRIGHT: I thought there might a planned date, that is all. I think with the rest I have to wait until the Attorney-General is here, unfortunately.

CHAIR: That is fine. Senator Singh.

Senator SINGH: I would like to go back to the cuts to legal aid commissions. Obviously the government has taken a decision to withdraw funding to legal aid commissions to the tune of $15 million in the coming financial year. Is that correct?

Mr Fredericks : That is right. That is a one-off reduction in 2014-15. To put that in context, that was a one-off grant to the legal aid commissions. You would appreciate that funding from the Commonwealth to state legal aid commissions is done essentially through the national partnership agreement. That is essentially the funding mechanism by which the Commonwealth provides money to state legal aid assistance. The previous government made a decision in the middle of 2013 to provide one-off top-up funding to legal aid commissions outside of the national partnership agreement, in the amount of $15 million in 2013-14 and $15 million in 2014-15. So the decision that is made in this budget reflects, in a sense, the removal of what was essentially a one-off decision by the previous government.

Senator SINGH: But this decision will be cutting funding to casework services for some of the most disadvantaged and desperate Australians. Why has the decision been made to do that?

CHAIR: That is something for the minister. Senator, you have been around long enough to know what is for the minister and what is not.

Senator SINGH: I know, but my questions are to the minister and the minister is not here. Estimates has now been going for 25 minutes. It is very frustrating.

CHAIR: I have asked 15 minutes worth of questions without having to ask the minister one of them, and so has Senator Wright. I am sure you can too, if you put your mind—

Senator SINGH: It should not be that way, though, Chair. This is estimates. The minister is supposed to be here.

CHAIR: As I mentioned, I have no idea what he is doing, but he is at a National Security Committee meeting. I am sure he is not doing it just to annoy you; I am sure there is some very serious reason why they are having that meeting. I would not want to speculate, but, if you cannot ask questions without requiring the minister—

Senator SINGH: No, I can ask questions.

CHAIR: Okay, because there are others who can.

Senator SINGH: But it certainly is not the way in which a Senate estimates committee should be conducted. What economic impact does the department estimate these savage cuts will have?

CHAIR: Senator, it would help if you ask officials the questions without the pejorative editorial.

Senator SINGH: I will ask the questions how I see fit, Chair.

CHAIR: I will not let you put those questions, if that is the way you are going to do it. You are embarrassing the officials, and you should be able to understand that.

Senator SINGH: You are hardly in line with the minister, who allows for freedom of speech. Anyway, there is the question. The question has been put.

CHAIR: I think the question was: how do you deal with the cuts?

Senator SINGH: No, the question has been put.

CHAIR: How do you deal with the cuts? Forget about the pejorative editorial on them, which is not relevant to the question.

Senator SINGH: You are supposed to be chairing the committee, not being biased to the government.

CHAIR: I am chairing the committee in making sure that the questions are allowable questions, and yours would not be. If you are asking what the cuts are, let's—

Senator SINGH: We know what the cut is—it is $15 million.

CHAIR: What was your question?

Senator SINGH: The department knows what my question was.

Mr Fredericks : There is one point I should make, just for context. That funding was due to expire at the end of 2014-15 in any event. The decision of the previous government was for two years of funding, so this decision, in actuality and in fairness, brings forward by one year an outcome that would otherwise have followed anyway.

Senator SINGH: Can you provide a state and territory breakdown of these LAC cuts?

Mr Fredericks : Can I confirm that question—a state and territory breakdown of the $15 million one-off reduction?

Senator SINGH: That is right.

Mr Fredericks : Yes, we can take that on notice.

Senator SINGH: You cannot provide that to me?

Mr Manning : I can read it to you, if you like.

Senator SINGH: Thank you.

Mr Manning : New South Wales is $4,580,500; Victoria is $3,500,000; Tasmania is $444,209; the Northern Territory is $400,000; South Australia is $1,174,553; Western Australia is $1,490,368; Queensland is $3,010,370; and the ACT is $400,000.

CHAIR: I just might pause to welcome Senator Scullion, the Minister for Indigenous Affairs, no doubt filling in for Senator Brandis while he is at an important national security meeting. Senator Scullion, to bring you up to date, we have been asking of the officials, which did not include the secretary, clerical questions, if you could call them that, asking for information. A couple of the senators wanted to ask policy questions, but we have either disallowed those questions or held them over to the minister when he comes. As you are filling in for the minister, I guess they could well ask you, but I suspect that you will say in most instances that you will take them on notice or refer them to the minister. That is where we are, just so you know, and Senator Singh is in the process of asking some questions. Both Senator Wright and I have asked some information seeking questions and we have received very good answers.

Senator SINGH: Can we have some indication when the minister will be back?

Mr Wilkins : Sorry, Senator. Without going into the actual areas of discussion, I have actually got out of the meeting early—I should still be there, quite frankly—but the minister certainly has to stay there. Apparently he is coming now.

Senator SINGH: Alright, we will continue on. I think you provided me with a breakdown of state and territory figures. Can you advise what services will need to be withdrawn as a result of these cuts? For example, I understand that, in Tasmania, the provision of family law services will be reduced or abolished as a result of these cuts. Do you have more information about the other states' and territories' cuts to their budget? What kind of services will be withdrawn or cut through these budget savings?

Mr Fredericks : I think my colleague would be able to give a very general description of the nature of services that were supported by this funding, noting of course—as I said before—that the reductions in those services that may follow from the removal of funding in 2014-15 would have otherwise occurred in any event the following year because this was a measure which was only in the first instance ever provided for two years of funding. Noting that context, I will ask my colleague to give a very general description of the types of services supported by this funding.

Ms Quinn : Because of the nature of the funding being only ever intended to go for two years, the funding agreements were not overly prescriptive to enable their maximum latitude within Commonwealth parameters to address needs as they perceived them. The activities that were undertaken—I can talk at a very high level—were not prescribed by the Commonwealth at a detailed level and are not necessarily the same across the board. Some used the money to commence pilot projects; some started, for example, additional community legal education activity; some directed it to additional service provision of existing activities they were already undertaking; and some used it for things like consumer affairs advice services, because they were seeing increased needs in those sorts of activities in those areas. We are working with all the legal aid commissions on how they can maximise the money they have had to date, understanding that they are not getting the next year's funding.

Mr Fredericks : Essentially, I think the point you will appreciate is that the various organisations—appreciating that the funding was only going to be made available for two years—made their decisions based on that premise, and that premise has been brought forward by one year.

Senator SINGH: That does not really go through some of the services that are going to be cut though, does it?

Mr Fredericks : I think my colleague endeavoured to do that for you. A large number of the uses to which the funding was put were not baseline service, if you like, because the money was only ever going to be available for two years. It was rather spent by organisations for things like pilot programs that would require some one-off funding, but which would not rely on ongoing funding because the ongoing funding was never committed to by the previous government.

Senator SINGH: You know that to be the case? That every state and territory only used that extra funding for pilot programs.

Mr Fredericks : I said things like pilot programs, and I can ask my colleague to give you some examples continuing on in the list.

Senator SINGH: I gave you an example of family law services in Tasmania.

CHAIR: Senator Singh, do you want the question answered or do you not?

Senator SINGH: Excuse me, Chair. I am asking questions. I have no need for you to intervene on my asking questions to the department. I also find that you did not do this to Senator Carr, and yet you do it to me on and on and on. I am sick of it. You have no need to do this.

CHAIR: Good. Leave the room if you want to. You ask questions and then, when they are answered—

Senator SINGH: I am the deputy chair of this committee.

CHAIR: you cut in.

Senator SINGH: No. I am asking questions of the department.

CHAIR: I am saying to you: if you ask questions, please wait and get the answers.

Senator MARSHALL: We would like to get an answer.

CHAIR: Ms Quinn, I think your colleague referred to the question to you and you were about to give the answer when Senator Singh interrupted. Could you please give the answer?

Ms Quinn : Senator, you are quite right: some legal aid commissions used some portions of the money that they had to top up, effectively, existing services that they were providing, but in the main the money was used to do new things like community legal education. And, because the money was not going to be ongoing, there was a view to assist people with education processes that would last longer than the moment of the service being provided. There was definitely a pilot on social exclusion in New South Wales, but I do not have a great deal of detail about what that involved. That is the sort of example of projects that were being done to ensure that there would be outcomes that the legal aid commissions could leverage off once the money was no longer available.

Senator SINGH: Does the department have some kind of breakdown as to what each legal aid commission used that money for? Obviously some have used it for pilot programs; others, as you say, like Tasmania, have used it to top up their existing services.

Mr Fredericks : Senator, in fairness to you, that answer deserves a proper detailed response, the nature of which we can provide to you on notice.

Ms Quinn : I will add to that. Because we were only halfway through the funding cycle when we made the announcement about cutting the second year of funding, we are working very closely with each legal aid commission to recast what they think they will be able to achieve with that money over the remaining financial year. The position they may have presented six months ago may be different to what we are working with them on now. If we could take that on notice, we could give you a much more current picture of what each legal aid commission will be delivering.

Senator SINGH: Okay—let's take that on notice. I would like to move to cuts to Indigenous justice programs.

CHAIR: Could I interrupt you for one minute? Senator Brandis, what we have done in your absence is simply ask officials about information gathering. A couple of senators wanted to put to officials things which are in your purview. We have had those held over and we will get those senators to ask those questions of you later.

Senator Brandis: Thank you very much indeed, Senator Macdonald. May I take this opportunity to apologise to the committee for being late. I was detained in a cabinet subcommittee. It was not possible for me to leave before an item of business that I was conducting was disposed of. So thank you.

Senator SINGH: I have to give some background to this question. If you would give me the liberty to give the background, I will get to the question. This question is to the Attorney-General, so the Attorney-General does need to listen to this question. In February estimates, I asked you whether you had visited an Aboriginal and Torres Strait Islander legal centre and, if so, which ones? You responded that you had visited the Caxton Legal Centre in Brisbane. I think you said in your answer that you attended a function.

Senator Brandis: I launched their legal handbook, actually. It was the previous Friday, in fact, if my memory serves me correctly.

Senator SINGH: It was pointed out to you that Caxton is not an ATSILS and you insisted that it had—

Senator Brandis: Senator, that is actually not right.

Senator SINGH: I have not finished.

CHAIR: Sorry, Senator Brandis, let her finish the question.

Senator SINGH: You insisted that it had a large Indigenous justice practice. Your answers at that last estimates on that point were false. Caxton is a CLC but it is not an ATSILS; it does not specialise in Indigenous clients and work. Can you now remedy your ignorance about Indigenous justice by actually visiting an ATSILS? I note that there is an ATSILS only five minutes drive from Caxton. So my question is: have you visited an ATSILS?

CHAIR: There were several questions. You might like to answer all of them, Senator Brandis.

Senator Brandis: Senator Singh, if you are merely going to make insulting allegations I am not going to be responding to any of your questions.

Senator SINGH: The question is very clear: have you visited an ATSILS?

Senator MARSHALL: You need to respond to the questions asked of you.

Senator Brandis: They are not questions, and my obligation is to respond to questions—

Senator SINGH: That is a question.

Senator Brandis: not false accusations.

Senator SINGH: It may be a question that you feel uncomfortable in answering—

Senator Brandis: I feel perfectly comfortable answering.

Senator SINGH: but it is a question and this is Senate estimates. It is your job to answer questions.

Senator Brandis: Senator, if you are going to accuse me of giving a false answer to the February estimates—

Senator SINGH: I have the Hansard here, would you like me to read it out?

CHAIR: Senator Singh, can you let the Attorney finish his answer.

Senator Brandis: Will you adjourn this hearing, Mr Chairman, or at least I withdraw if I am not going to be permitted to respond to questions in which my integrity is being specifically attacked by this senator.

Senator MARSHALL: You just said you were not going to answer the question.

CHAIR: Senator Marshall, you are out of order. Senator Brandis, you have the floor to answer the several accusations and questions that were put to you.

Senator MARSHALL: And questions.

CHAIR: I said 'questions and accusations', Senator Marshall, and please do not interrupt.

Senator Brandis: Senator Singh, you accuse me of giving false evidence to the February estimates, and you accuse me on two particular grounds, both of which are incorrect. I am going to point out to you the respects in which both of the grounds on which you made that allegation were incorrect and invite you to withdraw. You also pointed out that you have the Hansard there. If you have the Hansard there I wonder why it is that you did not actually read from the Hansard.

Senator SINGH: I will do it now if you wish.

Senator Brandis: Excuse me, I am answering. I wonder why you did not read from the Hansard rather than put your own construction and paraphrase on the words. Firstly, you said that I had said that Caxton, with which I am very familiar, is not an ATSILS, which is a term of art as you well know. I did not say that and you know that I did not say that, so you have just misled this committee. Secondly, you said that I said that I misled the committee by saying that Caxton has a large Aboriginal and Torres Strait Islander practice because, as you put it to me a moment ago, it does not specialise in Indigenous law. It is the case that Caxton does have a large Indigenous practice. It is a centre with which I am much more familiar than you. So both of the bases upon which you have accused me of misleading the committee are wrong. You have misled the committee tonight and I invite you to withdraw. In relation to your ultimate question, since the February estimates the answer to your question is no.

Senator SINGH: I would like to read into the Hansard estimates of 24 February.

CHAIR: Is this a question?

Senator SINGH: Yes, this will get to the question:

Senator SINGH: You have visited an Indigenous community legal centre?

Senator Brandis: I have given you my answer, and the answer is yes.

Senator SINGH: Which one have you visited?

Senator Brandis: I told you a moment ago that as recently as Friday I visited Caxton, …

Senator Brandis: Correct, absolutely correct.

Senator SINGH: Senator Brandis, Caxton is not an Indigenous community legal centre.

Senator Brandis: It is a community legal centre.

Senator SINGH: It is a CLC. It is a community legal centre.

Senator Brandis: It is a community legal centre with deals extensively with—

Senator SINGH: You are the one who misled this committee on 24 February.

CHAIR: I will shut this hearing down if I do not get some order. Senator Singh, I did not hear a question in that. This is not a debate. Estimates, as you know, is to seek information from the minister and officials. If there is a question within your wit you should be able to ask the Attorney a question: do you stand by what you said then.

Senator SINGH: Absolutely I do.

Senator Brandis: Yes, I absolutely stand by what I said. In fact the Hansard extract from which Senator Singh just read demonstrates precisely the accuracy of what I said then and now, and demonstrates that the allegation of misleading the February estimates, which Senator Singh has quite disgracefully made against me, is entirely false.

CHAIR: Okay, next question.

Senator SINGH: Caxton does not specialise in Indigenous clients.

CHAIR: That is not a question.

Senator SINGH: Excuse me, I would like to ask the question without the chair and the minister working in cahoots to butt in without me being able to ask it.

Senator Brandis: Then ask a question.

Senator SINGH: So, have some respect for Senate estimates.

CHAIR: Do not argue. This is not a debate, Senator.

Senator SINGH: I am framing my question, without having your interference and the minister's interference, constantly, every time I ask a question.

Senator Brandis: Can you ask a question, Senator? You have been expostulating for minutes on end.

Senator SINGH: Senator Brandis, we have been waiting for 25, 30 minutes for you to return.

CHAIR: Senator Singh, your time has finished. You have had 25 minutes.

Senator SINGH: No, it has not.

CHAIR: Senator Wright.

Senator SINGH: This is ridiculous.

Senator MARSHALL: Why are you now shutting this down?

CHAIR: Because everyone has 15 minutes. Senator Singh has had 25 minutes. If she is not asking questions I will move to a senator that will ask questions.

Senator MARSHALL: The whole time the minister was not here you were acting as if you were—

CHAIR: If you have a point of order, Senator Marshall, make your point of order. Do not try to shout me down, because you will never shout me down. Now, do you have a point of order?

Senator MARSHALL: No, I do not have a point of order.

CHAIR: Okay. Senator Wright.

Senator SINGH: Chair, I have not finished.

Senator MARSHALL: The chair of this committee is totally unacceptable.

CHAIR: Senator Wright.

Senator SINGH: Chair, I have not finished my questioning to Senator Brandis on this issue.

Senator WRIGHT: As a member of the committee I would actually like to suspend for a private meeting for five minutes. I think we need to sort this out. I do not think this is seemly, and I am not comfortable with what is happening. I propose that we need to sort it out. I do not think this is appropriate.

Senator SINGH: I agree with Senator Wright on that.

Senator MARSHALL: I agree as well.

Senator SINGH: I agree.

CHAIR: If you want to move a motion.

Senator WRIGHT: I move:

That we suspend briefly for five minutes to have a quick private meeting.

Hopefully it will not take very long to sort out the process from here.

CHAIR: I will suspend the committee hearing.

Proceedings suspended from 19:47 to 20:00

CHAIR: We will resume the hearing of the Senate Legal and Constitutional Affairs Legislation Committee in the inquiry into the budget estimates for 2014-15. Can I just indicate that for everybody, again, I am going to insist upon questions to be asked, not statements made, nor accusations. Minister, as I have done with you on several occasions, I will ask you to answer the questions and not enter into debate. I know it is difficult when you are accused of something. I gave you the opportunity to respond to that, and we must move on now. I just want to remind everybody that estimates is about asking for information and getting the information from either the minister or the officials, and if we all follow that we will do well. Senator Brandis.

Senator Brandis: Mr Chairman, thank you very much for that ruling. That is very much the way I would hope that this committee would proceed. Of course, if I am the subject of false accusations I will respond to them, and I hope you have counselled Senator Singh in that regard not to make false accusations.

CHAIR: That, again, is not helpful.

Senator Brandis: If there are questions which are based on false premises, then naturally it will be necessary to expose the false premise, because if it is not exposed it will be taken to have been admitted.

CHAIR: Well, that is an answer to the question, Senator, and you are expected to do that. Certainly if you or anyone else is accused of something I will make sure that the person accused has the opportunity of responding, which I gave you and which you did. I am not to sit here being judge and jury on who is right and who is wrong because it is not relevant to the these proceedings. This is not a debate. You have had the right to respond and you did.

Senator Brandis: I wonder if I might inquire, through you, Mr Chairman, whether Senator Singh now will withdraw what is admittedly the false accusation she made against me in the earlier questions?

CHAIR: I can ask Senator Singh. I am not asking her to. I am referring Senator Singh to your request.

Senator Brandis: It is now apparent from Senator Singh's own reading from the Hansard that what she said was entirely false.

CHAIR: I am referring Senator Singh to your request. If she wants to she can. It is not for me to rule on. Now I was going to Senator Wright for 15 minutes.

Senator WRIGHT: Thankyou for that, Chair. I wanted to follow up a few more questions on the amalgamation of the tribunals—the Migration Review Tribunal and Refugee Review Tribunal—with the Administrative Appeals Tribunal, the Social Security Appeals Tribunal and the Classification Review Board. I know that you were answering some questions about that a bit earlier on, and it might be that I did not listen carefully enough and you have answered these already, but I am interested to know: are there envisaged to be amendments to substantive review rights in conjunction with that amalgamation?

Senator Brandis: Well, Senator, I think the best way to answer that question is to say no, it is not envisaged that there will be. I do not immediately see why there would need to be but, having said that, I cannot entirely exclude the possibility that the amalgamation may result in some. I cannot exclude that possibility entirely, but I cannot immediately see why there would be. The word you have used is 'envisaged', so the answer to that is no, it is not envisaged. It is certainly not envisaged by me. I have had long discussions with both the president of the AAT and the CEO of the AAT, and I can tell you that, in the course of those several discussions, that has never been suggested.

Senator WRIGHT: What impact will the amalgamation have on the number of tribunal members?

Senator Brandis: The current intention is to maintain the expanded new AAT at the current numbers, but this is something that is being worked through in the implementation phase between the AAT, which is as it were the lead tribunal here, the other tribunals and the department. I should say that there will be some members, part-time or full-time, retiring soon. I cannot exclude the possibility that, as the amalgamation is put into effect, a decision might be made not to fill those full-time or part-time positions. No such decision has been made, but in the event that does occur I would not want you to be taken by surprise. But no such decision has been made to that effect.

Senator WRIGHT: I am interested in the conditions of appointment because that will vary between tribunals depending on the length of term of appointment. Certainly, there are sometimes concerns about the degree of independence that can be exercised by tribunal members. What process is envisaged? Will it be the highest common denominator potentially or the lowest common denominator, or will there be some variability? Has any thought been given to what will happen there?

Senator Brandis: I think that and kindred issues are issues that will be discussed in the process of giving effect to this decision. There are a number of ways in which one can do this. For example, one matter that is under discussion is whether the AAT in its expanded form ought to be divisionalised so that there are divisions reflecting the new tribunals that are coming under its auspices and, if that were to be so, whether those divisions should be informal, created by administrative arrangements within the AAT, or made more formal by regulation or statute or rules of court, as it were. All of those sort of issues, which obviously you have in mind, are under active consideration at the moment.

Senator WRIGHT: By discussion of existing capacities in divisions, it is essentially looking at areas of specialisation that are already existing, for instance.

Senator Brandis: If I may say, I think that is very sensible. There are some specialist aspects of the jurisdiction of both the AAT itself in its current form and in its enhanced form.

Senator WRIGHT: I would like to ask some questions about the KPMG report about funding of the Federal Court, the Family Court and the Federal Circuit Court. The report has not yet been made public.

Senator Brandis: No.

Senator WRIGHT: Have any of the report's findings been implemented in the 2014 budget or in other policy measures?

Senator Brandis: No.

Senator WRIGHT: When will the report be publicly available?

Senator Brandis: I have not yet decided whether it will be released. The response to it is something to which I am giving consideration. It certainly would not be released before the response, if it is to be released at all. I am not saying it will not be, but that is a decision that has not yet been made.

Senator WRIGHT: What would be a rationale for keeping the report from the public?

Senator Brandis: It is not a question of keeping the report from the public, and I do not want to set any false hares running here either. I am not saying that it will not be released; I am merely saying that no such decision has yet been made.

Senator WRIGHT: I seem to remember having sat through estimates sessions in the past when you have been asking questions on this side of the bench and asking about the release of reports into courts and so on, so you would understand the arguments that the public interest—

Senator Brandis: Yes, I understand the arguments perfectly. I am just telling you that no such decision has yet been made.

Senator WRIGHT: Can I ask about the review of the National Partnership Agreement on Legal Assistance Services, which is complete. Again, I will ask: when will the review report will be publicly available?

Senator Brandis: If it is to be released, obviously, that is not going to be before it is finished. Perhaps the officials might be able to help you more than I can with where we are with that.

Senator WRIGHT: I had understood it was complete, so maybe my information is not accurate.

Senator Brandis: It is well advanced, but I am not sure that the document I have is its ultimate iteration. Is it Mr Manning?

Mr Manning : No. Since last estimates, the draft report was distributed amongst states and territories and others who have consulted in relation to it, and the consultant is currently finalising it. As the Attorney said, I think it is close to finalisation.

Senator WRIGHT: Minister, is there a commitment to releasing that review report publicly?

Senator Brandis: At this stage, no. I have not even read the report because, as Mr Manning says, it has not been finalised. You can hardly expect me to make a decision whether or not it is appropriate to be released when I have not yet read it.

Senator WRIGHT: I suppose you could make a decision on principle that it is the kind of report that would be publicly released—

Senator Brandis: In principle I am favour of releasing these things, so I start from the presumption that they should be released unless there is a reason not to do so. But I obviously cannot arrive at a conclusion, following that process of reasoning, until I know what is in it.

Senator WRIGHT: Thank you. Can I turn now to the National Human Rights Action Plan. It is my understanding that this was developed following substantial consultation at the community, state and territory level and it features a range of initiatives designed to make sure Australia continues to meet its international human rights obligations. Does the action plan continue to form part of the current government's policy?

Senator Brandis: We are having a look at the whole human rights area. As you know, one of my main priorities in this portfolio when the government was elected was to revive the human rights debate—and I think we have done that. The appointment of Mr Wilson to the vacant position of Human Rights Commissioner with a particular focus on freedoms—which, as I have said in previous estimates, I think have been rather neglected by the commission—led to a very lively debate about human rights with a slightly different focus than had been the case hitherto. The debate about section 18C which we had earlier this afternoon—yet again—is a debate about human rights. It is a debate about where the right not to be vilified ends and the right not to be politically censored ends. I think there has been a lot of debate about human rights in Australia in the last eight months and it has been a richer debate than the rather grey, politically correct debate we have had in years gone by.

I make that point to emphasise that getting human rights onto the agenda is about a lot more than just having an action plan; it is actually about what you do to elevate human rights in the public consciousness. In fact, I was having a conversation with the Human Rights Commissioner only the other day and he said to me we have never in his lifetime had so much discussion in mainstream politics about what liberalism means as we have had in the last few months. That demonstrates that the human rights debate is really alive and well at the moment in a way it has not been before.

Senator WRIGHT: I am interested in the status of the action plan, notwithstanding what you have already said about the vociferous debate that is going on at the moment. Will it continue to form part of the current government's policy?

Senator Brandis: The document, in the form we inherited from the previous government, may not necessarily. But can I add another element to this, please. I have discussed this with Professor Triggs, and you may well wish to ask about this tomorrow. The government proposes to reform the Human Rights Commission, and that will require amendments to its act. Professor Triggs is very eager that that be done, and she has some views about ways in which the constitution of the commission, and the way in which it operates, can be improved. She and I have spoken about this a couple of times, including briefly this afternoon in fact. The point I am trying to make to you is that I do not want to let the cart get before the horse here. In the second half of this year we will be announcing significant reforms to the Human Rights Commission, and I think it is in the context of those reforms that we will be revisiting the human rights agenda.

Senator WRIGHT: Having listened to what you have said there, would I be correct in thinking that the department probably is not at the moment continuing to deliver initiatives under the plan?

Senator Brandis: That is a matter for them.

Senator WRIGHT: Or are their ongoing initiatives that are being delivered currently?

Mr Bowhuis : As the Attorney-General has articulated, the new government has a new agenda for human rights. So we would not be continuing with the action plan as formerly set out by the previous government. The new government would make its own decisions about what it wishes to commit to in the lead-up to the universal periodic review in 2015.

Senator WRIGHT: I am using the term 'initiatives contained in the plan'—they are not continuing to be delivered? Are there ongoing initiatives that will not have any further work done on them until that further planning is done?

Mr Bowhuis : Each initiative would be a question for the government to decide separately, but that framework of a national action plan was one of the previous government's initiatives that would not continue. But as issues come up, the new government will consider them and make a decision on them as it sees fit.

Senator Brandis: That is right. The new government has a much broader and richer human rights agenda than the old government, and I think the official reflects that in his answer.

Senator WRIGHT: Has there been any change in the funding allocated to the initiatives contained in the plan?

Mr Bowhuis : The initiatives span across the whole of government—everything from multicultural affairs to immigration to other matters—so that is a very difficult question for me to answer.

Senator WRIGHT: The initiatives administered by your department is my clarifying point there—you can take that on notice.

Senator SINGH: Senator Brandis, can you please confirm that on 24 February, at our last Senate estimates, when you answered yes to my question 'Have you visited an Indigenous community legal centre?' you were referring to the Caxton Legal Centre?

Senator Brandis: I would have to look at the Hansard. I certainly remember, as you pointed out in that rather intemperate exchange in which you engages just before the adjournment, most of the discussion was about the Caxton Legal Centre. I recall saying that, because of the extensive list of the work that particular centre does with the Indigenous communities, I consider it to be a legal centre that looks after Indigenous people, or words to that effect. But I am sorry, Senator, after my experience with you earlier on I am not going to trust you, frankly, unless you quote me from the words I used, from the Hansard, in the context in which they were used. You misrepresented what I said before, and I am not going to let you do that to me again.

Senator SINGH: I am happy to table the Hansard if the minister would like to read the Hansard. It would take a while for me to read the Hansard in—if that makes it easier.

Senator Brandis: You are the master of your own questions, Senator; but when you misstate the effects of evidence, you cannot expect the person to whom you are asking the questions to trust you the next time you paraphrase the evidence.

Senator SINGH: I have not misstated the evidence. I am asking you to answer that question, which you have refused to do. Have you been to the Caxton Legal Centre?

Senator Brandis: Yes.

Senator SINGH: When on 24 February you referred to the fact that you had been to the Caxton Legal Centre, you were not referring to the function that you went to, a book launch, which you also referred to this evening?

Senator Brandis: When I answered your questions in the last estimates, I was referring to the occasion, which was fresh in my mind because it had only been the previous Friday, when I launched the Caxton Legal Centre's handbook. That was a function hosted by the Caxton Legal Centre at the Avid Reader bookstore in South Brisbane, just a few blocks away from the Caxton Legal Centre. That was what I referring to the. But the question you have just asked me is 'Have I been to the Caxton Legal Centre?' Yes, I have. I was last at the Caxton Legal Centre—I would have to check my diary—in the last year or so. It was when we were in opposition, so it was before 13 September, but it would have been within a year before that. I had quite a long visit and a meeting with the staff. I talked with some of the interns. We were there for a couple of hours, I think.

Senator SINGH: Why do you regard the Caxton Legal Centre as having support for Indigenous people 'among one of its most important functions'? That is quoting you from the Hansard.

Senator Brandis: Because that is my understanding of what it does.

Senator SINGH: Have you looked on their website?

Senator Brandis: No.

Senator SINGH: They do not mention 'Indigenous legal service' on their website—they mention every other law function—so why do you regard them as being not an ATSILS but, obviously, a community legal centre that has support for Indigenous people among one of its most important functions?

Senator Brandis: Because I do. I know you are from Tasmania. I do not know how well you know Brisbane.

Senator SINGH: I used to live in Brisbane. I used to live in Red Hill in Brisbane. That is how much I know Brisbane. Thank you very much for asking, Minister.

Senator Brandis: Good on you—it would be Red Hill!

Senator SINGH: You got that one wrong!

Senator Brandis: Well, you may or may not be aware that the Caxton Legal Centre is actually a very famous institution. I think it was the second major community legal centre established in this country after the Fitzroy Legal Centre, if my memory serves me. From the time that I was a law student in the late 1970s through to now, I have known the Caxton Legal Centre. I have many friends who do work, or have worked, at the Caxton Legal Centre. I have visited the Caxton Legal Centre and it is my understanding that among their clients are Indigenous people and that is an important part of what they do.

Senator SINGH: Thank you, Minister. I am pleased you have been to the Caxton Legal Centre. However, when you addressed estimates in February were you not referring to your attendance at a Caxton Legal Centre function which, as you and I know, was at the Avid Reader bookshop, not the Caxton Legal Centre?

Senator Brandis: I was. But as you will remember, Senator, you asked me about this and I said as recently as last Friday words to the effect of I went to launch the Caxton Legal Centre's latest edition of the legal resources handbook, or whatever they call it.

Senator SINGH: But I had asked you if you had been to an actual centre; and that was not at a centre, it was at a bookshop.

Senator Brandis: Well, good on you! Have you got any serious questions tonight? There are some serious questions in the portfolio.

Senator SINGH: Okay, let's move on to the next question. Is it correct that in the eight months that you have been in office, notwithstanding several requests for meetings to discuss with you the impact of the cuts that you have imposed on the Aboriginal and Torres Strait Islander Legal Service since September, you have still not met with the head of any ATSILSs or with the national chairman or the executive officer of these core providers of justice to Indigenous communities?

Senator Brandis: I am advised—my staff have checked my diary—that the visit to the Caxton Legal Centre to which I have referred took place on 29 April last year. In relation to the question you have just asked me, my staff have met such people.

Senator SINGH: In April last year you were not the Attorney-General. I am asking whether you as minister—and that has been the last eight months—have visited an Aboriginal and Torres Strait Islander Legal Service?

Senator Brandis: You have misunderstood me.

Senator SINGH: I am asking the questions! You need to answer the question, not put it in a phrase that suits you, because we all know that you have not visited one.

Senator Brandis: I will answer the question in my own words, but what I was telling you before was to add to my answer to your earlier question to give you the date on which I last visited the Caxton Legal Centre, which was 28 April 2013. You asked me for a date, and I could not give you a date. My assistant has very helpfully found the date, so I am just putting it on the record. Turning to the question you have lately asked, I will check my diary—I know my staff have—as to whether I have or have not. I will take that on notice.

Senator SINGH: You have no recollection of your physical presence in an Aboriginal and Torres Strait Islander Legal Service? There are only nine of them in the country. You are telling me you cannot recall whether in the last eight months you have been inside an Aboriginal and Torres Strait Islander Legal Service?

Senator Brandis: I assumed from your question that meant to include meeting representatives of Aboriginal and Torres Strait Islander Legal Services, and that is why I said I will take your question on notice. In the last eight months, you will not be surprised to learn, I have had more than a dozen meetings a day on most days.

Senator SINGH: I can imagine. I have been a minister, so I do know what it is like.

Senator Brandis: And, therefore, I am taking it on notice. I know because I am told by my very reliable staff that Mr Lambie, Mr Brennan and others of my staff have met with people from Aboriginal legal services since the election. As to whether I have met with them, I will have to check.

Senator SINGH: Let us separate that out to whether you have actually been to—not met with in your office or elsewhere—one of the nine Aboriginal and Torres Strait Islander Legal Services.

Senator Brandis: I will take that on notice.

Senator SINGH: Okay. Chair, I will now hand over to Senator Peris.

Senator Brandis: No, I can give you some more information about your last question.

Senator SINGH: You are lucky you have got a good staffer there.

Senator Brandis: I have got excellent staff, I am proud to say.

Senator SINGH: Saving you—or trying!

Senator Brandis: No, they are just providing information, which is what they are there for. Mr Lambie and Mr Brennan met with Mr Cubillo, the Executive Officer of ATSILS, on 20 January this year. I myself remember meeting with Mr Cubillo; when that was, I could not tell you. But I will check.

Senator PERIS: The North Australian Aboriginal Justice Agency, NAAJA, has a care program that helps armistice prisoners when they are released. Judges and the Parole Board in the Northern Territory all agree that it helps reduce repeat offenders. Do you guarantee that funding cuts will not affect this service?

Senator Brandis: I will take that on notice. I am not familiar with that particular program.

Senator PERIS: Do you guarantee that front-line services such as Indigenous support officers, youth justice officers, court liaison officers, family law officers, welfare rights officers, the remote tenancy service and the prisoner support service will all be maintained?

Senator Brandis: They will certainly be maintained. I do not think you were in the room when I was having an interesting debate earlier on with Senator Wright about the focus of spending on the various legal assistance measures. The point I made to her was that my approach to this whole access to justice area is to prioritise front-line services. The services that you have described are front-line services, and it is my approach to spend the money there rather than on more worthy but nevertheless amorphous things like policy and advocacy. I am reminded by Mr Wilkins that, under the new administrative arrangements after the change of government, a number of those services were transferred from this portfolio to the Prime Minister's department.

Senator PERIS: The Productivity Commission's draft report on access to justice, released in April, outlined that advocacy can reduce demand for legal service assistance and the justice system more generally and save taxpayer dollars. The commission recommended that advocacy should be a core activity of legal aid commissions and community legal centres, particularly peak bodies. Given this finding do you accept that your cuts to advocacy could end up costing the taxpayers more, and why are you acting against the Productivity Commission's findings?

Senator Brandis: We did have this debate before but, very quickly, I do not accept that proposition. We will wait for the final report of the Productivity Commission but, as I said a moment ago, while I regard policy and advocacy as worthwhile things, in a resource-constrained environment, where there is a finite amount of money, I would much rather spend the money on front-line services.

Senator PERIS: Given the fact that NAAJA has reported that, over the past seven years, criminal matters have increased by 72 per cent and family and civil matters have increased by 73 per cent, how will these cuts not affect front-line services?

Senator Brandis: I am advised by Mr Brennan that he in fact had a meeting by telephone with NAAJA as recently as 4 April this year.

Senator SINGH: Who is Mr Brennan?

Senator Brandis: Mr Brennan is my ever-efficient adviser.

Senator PERIS: But that was not my question. Given the fact that NAAJA has reported that, over the past seven years, criminal matters have increased by 72 per cent and family and civil matters have increased by 73 per cent, how will these cuts not affect front-line services?

Senator Brandis: The whole purpose of the government's approach to this is to prioritise the provision of front-line services. Individual decisions are made in relation to particular programs. I will take on notice the detail of the question you asked, and I will check that. But I adhere to my general observation that in a resource constrained environment ,with a finite amount of money, we should be spending the money on front-line services.

CHAIR: Senator Brandis, are you or the department doing any assessment as to the provision of justice to the vast majority of Australians? I have mentioned this to you before: if you are very wealthy, you can get justice in the courts; if you are very poor, you can get justice in the courts, with legal assistance; but if you are in the vast middle class of Australia, it is simply impossible to take on any serious legal action in this country, regrettably. I know they are able to but, physically and financially, very few middle Australians can afford to set foot in a court. Do you have anything to say about that? Are you thinking about that? Is anyone doing anything about it? Do you perhaps disagree with my premise?

Senator Brandis: I do not disagree with your premise at all; I think it is a real problem. Let me tell you some of the things we are doing to address it. First of all, you asked what I or the department are doing. Well, there are two important things in particular. There has already been much reference made to the Productivity Commission report on access to justice. The final report will be received late this year, and the government will consider that carefully and be informed by its findings.

Secondly, there is the renegotiation of the national partnership agreement between the Commonwealth and the various state legal aid commissions which will take place in the coming financial year with a view to commencing on 1 July next year. Of course, in negotiating the Commonwealth's contribution to the legal aid commissions, obviously those issues will be very close to our thinking.

Thirdly, the issue of access to justice is at least in part a function of the way the courts themselves work—as you yourself would know as a former legal practitioner. One of the reasons I have been very keen to build the capacity of the Federal Circuit Court of Australia, for most of the time when we were in opposition against the depredations of the then Labor government which wanted to destroy that court, is that it has a much lower cost base. It deals with the smaller cases, which of course are the largest volume of cases in the Commonwealth jurisdiction, much more expeditiously. It has a relatively informal businesslike approach to the work that it does. Cases are dealt with much more swiftly than if they were tied up in the Family Court or the Federal Court. So the capacity building of the Commonwealth's most efficient court, which deals with most Commonwealth matters, is an important part of access to justice.

As well, I have given encouragement and, indeed, some preference to schemes which bring in the services of the private sector lawyers. I am very impressed, for example, by organisations such as PILCH, the Public Interest Law Clearing House, whose purpose is not to run a legal services provider themselves so much as to coordinate the provision, by volunteers from the private sector, of voluntary legal services. In fact, as recently as about four weeks ago, I attended in Brisbane, at the Federal Court, the launch of the new Queensland PILCH service to assist self-represented litigants in the Federal Court by explaining to them how to go about representing themselves. That kind of triages the problem, up to a point, and it engages the services of the private profession.

I am very old-fashioned about that, and I make no secret about that. I regard it as being in the nature of a profession that it provides a service to the public, and part of the notion of providing a service to the public is that members of the profession, who are generally well remunerated, give of their time to those who cannot afford their services. So I am always very enthusiastic to encourage legal service providers that leverage the maximum engagement from private professionals. So those are four particular ways in which I and the government are thinking about addressing the issue that you have identified.

CHAIR: Thank you for that, Minister; I appreciate your personal understanding and concern. The issues you raised—not all government initiatives—are good. And in asking this question, I am not sure that the government can do anything about it. But, again, I would use my own experience. I actually took on a newspaper for an outrageous defamation; I was so incensed, I was determined to do it even if I had to sell my house to do it. But most people in middle Australia, where I think I put myself, simply could not take the risk of that—

Senator Brandis: No.

CHAIR: so they just let the defamation run. Similarly, in a lot of quasi-criminal things, people just cannot afford to engage people of my profession and your profession, and I am not saying they charge too much—they are there to sell their services for what they are worth. People just plead guilty because they simply cannot get legal aid, they cannot defend it themselves, they cannot take the time off work. I do not know what you can do about it. Is there anything that you or anyone else can look at in a much broader way?

Senator Brandis: I could not be in more furious agreement with you when you say that, but of course, as we all know, there is a limited bucket of money for the government to provide legal assistance to people who cannot afford it. I think you would agree with me that it is only fair and socially just that that money be spent on the neediest people. That is why, at the risk of going on about this, I have taken this view that 100 per cent of the legal aid budget should be spent on casework, because only that way do we reach the maximum number of the neediest people. Nevertheless, there will never be enough government money. That is why I think one of the keys to this is engaging the private profession, and that is being done much more extensively now through community legal centres that have a particular emphasis on leveraging the work of private practitioners than it ever was done before. I think that is a wholly good thing.

CHAIR: I think you would agree, Minister, that it is difficult for Australia as a whole. We have a wonderful system and a good and honest court system. Using what I emphasise is a highly hypothetical case, if there was a multibillionaire who was very prominent, might have even run for parliament in his day, but has a reputation that if you said something wrong or did something he did not like he would take you to court, most Australians could not afford to defend those things. I am just wondering is there anything in the broad that governments can legislate against wilful litigants?

Senator Brandis: Well, they do either, either by act of parliament or by rule of court. There has for a long time been a jurisdiction to stop vexatious litigants. There is a difference, of course, between a vexatious litigant and a litigant who, although not vexatious, nevertheless may litigate for a malicious reason. There is a jurisdiction to restrain that, too. That was one of the issues in the great Slipper and Ashby case which Mr Slipper ultimately lost. This problem goes back to Shakespeare. Shakespeare talks about it somewhere—Mr Wilkins probably remembers because he is a very scholarly man. In fact, in Hamlet's soliloquy he talks about the law's delay as one of the many travails of the human spirit which might inspire a soul to suicide.

This problem has always been with us. It is best addressed through the generosity and the sense of professional duty of the private legal profession, which is not to be underestimated, by the way. Most of the lawyers, for example, who help out at the QPILCH service that I launched the other day come from the top end of town law firms. They act for big corporates by day and impecunious people by night, and I think they get a better emotional dividend from the latter than the former—but more remuneration from the former than the latter, no doubt. I do think that, given there is a limited amount of public money, the best way to start further addressing the problem that you identify is to increasingly engage the generosity and sense of professional decency of the private profession.

CHAIR: As I say, I do not know that there is a solution, but there are better brains than mine around. Someday, someone might work out what might be able to be done. I will finish a little early—

Senator Brandis: Mr Wilkins is whispering to me, 'Henry IV, Part 2.' That must be another one of Shakespeare's reflections about lawyers.

CHAIR: I cannot remember what it was. I was not a lawyer when I read it. Senator Wright.

Senator Brandis: If Mr Lambie is listening, I am sure he is enjoying this.

Senator WRIGHT: I would like to take you to some questions on the Environmental Defender's Offices.

Senator Brandis: Yes.

Senator WRIGHT: I start by taking you, Minister, to a response to a question on notice that you took at the last estimates hearing about correspondence to you from the Minerals Council of Australia or any other body representing the mining sector, or like body. The answer to the question was that the New South Wales Minerals Council wrote to the Attorney-General on 11 October 2013 about supporting the withdrawal of funding from Environmental Defender's Offices.

Senator Brandis: Did they? Okay.

Senator WRIGHT: Yes.

Senator Brandis: If they did, they did.

Senator WRIGHT: That was the answer that came back. First of all, I am going to ask whether there was any other correspondence from like bodies in relation to the funding of the Environmental Defender's Offices to you in your position as shadow Attorney-General or as Attorney-General.

Senator Brandis: I am not answerable to this committee for anything that I may have done or received as shadow Attorney-General.

Senator WRIGHT: I accept that. I withdraw that question.

Senator Brandis: No, but I do not want to set false hares running. When I was shadow Attorney-General, not that I remember. Since I have been the Attorney-General my recollection, because I cleared that answer a couple of weeks ago, is that the question was a multipart question. It said 'What other correspondence have you received?' to which I think the answer was none. Certainly, the only correspondence that was able to be identified was that one letter.

Senator WRIGHT: Thank you for that. I am interested in what extent that lobbying influenced you or was a rationale for the decision to cease funding of Environmental Defender's Offices that was announced in the mid-year economic and fiscal outlook?

Senator Brandis: None whatsoever, not at all, for two reasons. First of all, I was not in fact the subject of lobbying to that effect. Second, I do not mean to depreciate the work of lobbyists, but I never listen to lobbyists. I am never really influenced by them at all.

Senator WRIGHT: Just so I can understand your answer there—

Senator Brandis: I was never lobbied, and if I had been it would not have—

Senator WRIGHT: Do you not consider that a letter like that was a form of lobbying?

Senator Brandis: Not really. Somebody wrote to me expressing a point of view. People write to me expressing points of view every day of my life.

Senator WRIGHT: To what extent, then, did that letter influence you in your decision—

Senator Brandis: Not at all. I do not even remember receiving it. Obviously I did, because there it is.

Senator WRIGHT: That is right. If that is not the case—

Senator Brandis: It is not the case.

Senator WRIGHT: then what were the matters that did form the rationale for the decision to defund in totality the Environmental Defender's Offices in totality?

Senator Brandis: Exactly the considerations we debated earlier in the afternoon. I want as much of the Commonwealth's legal aid dollar spent on needy people in actual casework situations. I have in mind particularly as many criminal matters and family law matters as possible where the demand outstrips the supply of resources. Without depreciating the work of Environmental Defender's Offices, which do good work, they are, to be very blunt with you, a lower priority for me than people in need.

Senator WRIGHT: Are you willing to provide a copy of that correspondence to you from the Minerals Council?

Senator Brandis: What correspondence?

Senator WRIGHT: The letter that—you responded—had been sent on 11 October 2013.

Senator Brandis: I am going to say no, Senator—not that I have a particular problem with it, but I do think that people are allowed to write to a minister without putting their views on the public record. If the Minerals Council are happy for me to give you that letter, then I will give it to you. But it was a letter that was not sent as a public document. I think it would be wrong of me and discourteous to make public a letter that was not sent to me as a public document.

Senator WRIGHT: All right. Thank you for that. I will come back now to some remaining questions that I had in relation to section 18C in the Racial Discrimination Act.

Senator Brandis: Oh, yes.

Senator WRIGHT: I did not have enough time to finish, unfortunately, so I thought I would come back if I had time, so here we go.

Senator Brandis: I do not think I have anything more to tell you.

Senator WRIGHT: I am aware that concerns have been expressed by various members of the public and organisations about the risk of a perception that Australia is becoming more tolerant of racism.

Senator Brandis: I hope that is not the case.

Senator WRIGHT: Well, I would hope it would not be, too. But certainly that is a concern that has been raised by people who have talked to me and in the public debate. I do not think that the sense that some people are concerned about that would come as a surprise to you, given the number of submissions that you have received on the exposure draft.

Senator Brandis: It does not—

CHAIR: Senator Brandis, I think Senator Wright is getting to a question.

Senator WRIGHT: I am.

CHAIR: Can we have the question first?

Senator WRIGHT: Fair enough. Basically, concerns have been raised. Particularly, I am aware of concerns that have been expressed by providers of higher education services to overseas students—which is an important aspect of our economy now—about risks that would arise from a perception overseas by parents sending their children to Australia to be educated that Australia is becoming more tolerant of racism. That has been expressed to me on the back of issues around Indian students some years ago, and so on. Has there been any consultation by you or the department with stakeholders like this? Or has any modelling been done about potential economic consequences of repealing protections against racial hate speech?

Senator Brandis: I do not know that this is an issue that you deal with through economic modelling, so the answer to that part of your question is no. Senator, let me be very frank with you. I do not think Australia is a racist country. I do not. I do not think Australians are a racist people. I do not. But there are elements of the community of whom that cannot be said, unfortunately. I think they are a very small minority. But there are elements of the community of whom that cannot be said. But, in general, I think Australians are a famously tolerant and welcoming people. You have asked your questions in the context of section 18C. One of the principal philosophical reasons why I hold the view I do is that I think that, where you have isolated pockets of racism in the community, it is best to expose it rather than suppress it. We can have a difference of view about that, but that is my strong view. As I said to you before, that is a view that I share with, among others, President Obama, who made a very strong statement to that effect only a couple of weeks ago.

I am not surprised that some people may be saying that to you. But I do not think that it is the case. In the one example that you have instanced—that is, the case of Indian students—there were attacks on Indian students in Melbourne, in particular, a few years ago, completely unrelated to this debate. I believe that that did have an effect on the market for student services in India. I know that a number of political leaders from the state government, at least, if not from the federal government of the day, went to India to reassure the government and public authorities there about the safety of Indian students in Melbourne. That was violence and had nothing to do with this debate. The most recent indicator we have had about Australia's reputation as a safe place for international students has been the reverse Colombo Plan, a policy of the Abbott government, which has been developed by Julie Bishop and is being run by Senator Mason. That is part of Australia's international engagement as a major education provider, and it has been fabulously successful.

Senator WRIGHT: Can I just draw you back, because I have a limit and there is one more question I wanted to ask. I take it that, when I asked about consultation, there has not been specific consultation with those sorts of stakeholders about this?

Senator Brandis: No, that is not right. I said there had not been any economic modelling.

Senator WRIGHT: Yes, you did say that, so I am wondering about the consultation, particularly education service providers who provide education services to overseas students.

Senator Brandis: I have talked with a number of people involved with higher education policy about this issue, but I have not had a meeting with education service providers specifically to discuss this particular measure. I have talked quite often, because I know a lot of people who are involved in this policy area, in general about the issue.

Senator WRIGHT: No-one has raised those concerns with you?

Senator Brandis: No, they have not. I am not saying that there might not be some who do have those concerns, but not with me.

Senator WRIGHT: The other aspect of my question, again, comes to this perception, this risk. I have met with people extensively and I am relaying the things that concern me. With some of the incidents, which we are all familiar with, that come up from time to time in social media and with footballers and so on, there is concern about giving a flag to people, who are of a racist tendency in Australia, a perception that racism is acceptable in Australia.

Senator Brandis: Well, it is not acceptable.

Senator WRIGHT: No, it is not, but that is the perception, that is the concern. Could I bring you to the fact that Fredrick Toben, who is a Holocaust denier, is an example of someone who has embraced the proposed changes to section 18C. He is calling the current law 'a Holocaust protection law' and has welcomed its repeal. Are you concerned about the risk that going down this track will actually provide succour to people who have those sorts of repellent views? I know your views are on the public record about Mr Toben. He has extreme and repellent views, and people like him are apparently taking succour from the proposed changes. Are you concerned about that?

Senator Brandis: I will answer your question, but you cannot give a preamble like that without giving me the opportunity to respond to it.

Senator WRIGHT: I am not stopping you from answering.

Senator Brandis: The immediate answer to your question is no, I am not concerned, because as I said before, I think Australians are not a racist people. I think they are decent and welcoming and tolerant and sensible. I am sorry that Mr Toben's name has come into this debate. Mr Toben is a nut case. I do not want to be rude about any citizen.

Senator SINGH: He agrees with your draft.

Senator Brandis: Mr Toben is a nut case, and I am sure there are lots of nut cases who vote for the Greens, and I am sure there are lots of nut cases who vote for the Labor Party.

Senator WRIGHT: And are you proposing that there is no-one who does that—that is unnecessarily political, I think.

CHAIR: If you have a point of order to make, make it in the right way.

Senator WRIGHT: Point of order, Chair. I think that was unnecessary to give that—

CHAIR: What is the point of order? There is a point of order on the grounds of?

Senator WRIGHT: The point of order is that you are pulling me into being relevant when I am asking the question. I think those sorts of asides are not relevant, and I would expect you to do the same with the person giving their answer. That is all. I think we need a sense of fairness here.

CHAIR: There is no point of order.

Senator Brandis: You might say that, Senator Wright, but I thought you were a bit better than that, actually. This is kind of a guilt-by-association argument—

Senator WRIGHT: No, it is not.

Senator Brandis: Let me finish, please. Because out of 23 million citizens there is one nut case who happens to agree with me on a particular thing, you are trying to suggest that there is some guilt by association here. I am merely making the point that there is more than one nut case in Australia. Some of them vote for you, Senator Wright, some of them vote for you, Senator Singh, and some of them probably vote for Senator Macdonald and me. That reflects absolutely nothing on any of us.

Senator WRIGHT: Given that you have cast an aspersion about what I was doing there, I want to point out—


Senator WRIGHT: No, I need to say this. I think it is only fair. I will ask you to comment on this—

CHAIR: Senator Wright, we have been through this before. We had an altercation about this earlier today. People make statements and then the minister responds and then you respond and we do not get to the questions. I am sorry but your time has expired.

Senator WRIGHT: This is unreasonable.

Senator Brandis: For all I know, Mr Toben—

CHAIR: I am suspending this setting of the committee for five minutes.


CHAIR: I will now resume the hearing of the committee. I again say to my colleagues and to the minister and his officials: please, can my colleagues ask questions and not make long political statements and can the minister and his officers answer the questions and not be drawn into political debate. In spite of what some of my colleagues are saying, this is not a debating society. It is an estimates hearing where we ask for information from the minister and officials and hope to get answers germane to the questions we ask.

Senator Brandis: Can I just provide Senator Wright with another piece of information concerning a question she just asked?

CHAIR: No. If she asks you again, you can give it then. I am calling Senator Singh.

Senator Brandis: Okay. I was just trying to be helpful.

CHAIR: I understand Senator Singh wants to give some of her time to Senator Wright.

Senator WRIGHT: I want to make clear the question I was asking. I was not, as has been indicated, suggesting that there is guilt by association. I am not suggesting that you are a racist person, Senator Brandis. I want that very clearly on the record. What I was asking is, given that there are people such as Mr Toben and other members of the community who are lining up to celebrate this change to the legislation who have repellent views and given that there is a great deal of concern expressed by a well-meaning people that this will be a red flag to racism, are you concerned about those potential risks?

Senator Brandis: No, because I have more confidence in the Australian people than you do, obviously. Mr Toben, as I have said, is a nut case. He is a nut case—N-U-T C-A-S-E. He has nothing to do with this debate. Senator Wright, you sit in a party room with a colleague who was for a large part of her adult life an active and prominent member of the Communist Party of Australia. Her views are repellent. But there are lots and lots of repellent views. The fact that a person may have repellent views does not mean that they infect everybody else in the community.

Senator WRIGHT: Thank you, Senator Singh. I will not take any more of your time.

Senator Brandis: Senator Wright, can I give you one piece of information about the Indian students, please, since you asked?

Senator WRIGHT: I don't know—I do not want to take up Senator Singh's time.

Senator SINGH: I think no-one knows more about that issue than me, but anyway, let's hear from the minister.

Senator Brandis: I just wanted to let you know, Senator Wright: you instanced the attacks on Indian students as potentially an example of Australia having a reputation for racism. The Australian Institute of Criminology did a study in 2011 on those events in Melbourne, and the conclusion of that study, as announced in a press statement of 11 August 2011, was that in the view of the Australian Institute of Criminology the attacks were not racially motivated; they were motivated by other factors, not racial factors. That is a cautionary tale against throwing this 'racism' word around too freely, frankly.

Senator WRIGHT: But the perception reported from Indian families, irrespective of the reason for the attacks, was that there is racism in Australia.

Senator Brandis: I just thought I would give you that information, Senator, since you asked the question.

CHAIR: This is not a debate.

Senator SINGH: I tried to ask this question earlier when the minister was not here, and I do not think the officers could answer it, and I do not think you were there either, Mr Wilkins. It is in relation to the Marrakesh treaty. Are you familiar with the Marrakesh treaty, minister?

Senator Brandis: Yes.

Senator SINGH: It is currently open for signatures until 26 June this year. It has now been signed, I understand, by 65 countries, including the UK and the US. When will the Commonwealth government sign this treaty?

Senator Brandis: That is really a matter for my colleague Ms Bishop, but I will take your question on notice.

Senator SINGH: I actually thought it was part of the A-G's Department. Am I incorrect?

Senator Brandis: It may be, but I—

Senator SINGH: Mr Wilkins?

Senator Brandis: I would not be providing an answer like that in relation to Australia becoming a party to a treaty without at least first consulting my colleague the Minister for Foreign Affairs, so I will take the question on notice.

Senator SINGH: You are aware of this treaty?

Senator Brandis: I am advised that the treaty is open for signature on 26 June.

Senator SINGH: That is what I just said to you.

Senator Brandis: That is not what I heard you say; perhaps I misheard you. In any event, I will take the question on notice.

Senator SINGH: Do you have a view on signing the treaty, as a member of the cabinet?

Senator Brandis: I said I would take the question on notice.

Senator SINGH: I think it is an important part of your portfolio. So I want to know whether or not you are supportive of this treaty.

Senator Brandis: I am sorry, but these matters are government decisions, and I want to talk to my colleague the Minister for Foreign Affairs, so I will take the question on notice.

Senator SINGH: What is the Marrakesh treaty, Minister?

Senator Brandis: I have told you that all questions in relation to this treaty I will take on notice.

Senator SINGH: I am asking you what the Marrakesh treaty is.

Senator Brandis: I have taken the question on notice.

Senator SINGH: Do you not know what the Marrakesh treaty is?

Senator Brandis: I have already answered that question.

Senator SINGH: No, you have not. I am asking you what the Marrakesh treaty is.

CHAIR: I heard the minister say three times that he would take it on notice, which he is entitled to do. Do you have any other questions?

Senator SINGH: Senator Brandis, do you have anything else to add to your answer? Obviously not.

Senator Brandis: Perhaps you are having trouble hearing tonight. I said I would take the question on notice.

Senator SINGH: That is all right. Clearly you do not understand the Marrakesh treaty.


CHAIR: We now move to group 3.

Senator McLUCAS: I have questions around the operations of the Natural Disaster Relief and Recovery Arrangements and how they were implemented in Far North Queensland following Cyclone Ita. Following Cyclone Ita, as I understand, a disaster area was declared for quite a number of shires in the far north, including part of the Cook shire and the Hope Vale shire and the Wujal Wujal shire. Can I first of all get an explanation of how the Disaster Recovery Allowance, which is on your website on that page there, relates to this page here, which then explains the different categories of support that is available under NDRRA? Maybe I will start by asking: does the Disaster Recovery Allowance include the Personal Hardship and Distress Assistance Category A and Counter Disaster Operations Category A/B? I was finding it pretty difficult to navigate.

Ms C Jones : The Disaster Recovery Allowance is a direct Commonwealth payment activated under the Social Security Act by the Commonwealth directly, based on a determination of the minister. Category A of the NDRRA is part of cost-sharing arrangements with the state, so personal hardship and distress assistance is activated at state discretion, and then there is a threshold above which the Commonwealth will contribute to that on a 50-50 basis.

Senator McLUCAS: And Counter Disaster Operations Category A/B?

Ms C Jones : Counter Disaster Operations is under category B of the NDRRA—the cost-sharing arrangements.

Senator McLUCAS: In this document, in that box there, it says 'Counter Disaster Operations Category A/B', and I am really having to navigate this.

CHAIR: Can you see that Ms Jones? Do you know what the senator is talking about?

Ms C Jones : I am not entirely sure about that direct line.

Senator McLUCAS: I will pass it over for you to look at.

Ms C Jones : Counter Disaster Operations is aimed at alleviating distress to individuals and also reducing costs under category A of the NDRRA. So, it is measures such as sandbagging of homes, for example, that would otherwise prevent—

Senator McLUCAS: So, pre-event activity.

Ms C Jones : That is right.

Senator McLUCAS: I am not trying to make a point here, but I think I have made one, and that is that it is actually fairly difficult to track how this works, particularly since the changes that have been made since the change of government. I will now go to the Disaster Recovery Allowance. I understand that it administered by Centrelink. Is that correct?

Mr Crosweller : That is correct.

Senator McLUCAS: What role does the Attorney-General's Department play in ascertaining who can have the Disaster Recovery Allowance? And do you track how many people have received it?

Mr Crosweller : The Attorney-General's Department, through EMA, provides advice to the minister in relation to the Disaster Recovery Allowance. Essentially we assess the level of impact of any disaster in any given area, and if it hits the threshold of 'severe'—and there are certain criteria that help to inform us of that level of severity—then we will provide advice to the minister accordingly. The Department of Human Services administers the payment, and they do record all payments that are made to individuals.

Senator McLUCAS: Do you know how many people in Hope Vale have received the Disaster Recovery Allowance?

Mr Crosweller : I think I will have to take that on notice. I do not think we have that specific information here tonight.

Senator McLUCAS: But you do track it in Emergency Management.

Mr Crosweller : Yes. We could track it through the Department of Human Services.

Senator McLUCAS: And do they report to you regularly about the number of people who have received it?

Ms C Jones : Yes.

Senator McLUCAS: How regularly?

Ms C Jones : We get regular management reports—statistics. But so far the employees of the Hope Vale banana plantation were employed up until only about a week ago, and we have not had a management report since. They may have started applying for the Disaster Recovery Allowance. The last report I had, we had zero applicants.

Senator McLUCAS: Have you had a look at why?

Ms C Jones : I believe the employees still had employment up until Friday, about a week ago.

Senator McLUCAS: That is not the information I have.

Ms C Jones : I am not aware of the information you have.

Senator McLUCAS: So, you have been told that they had employment by whom? Who was employing them?

Ms C Jones : The banana plantation.

Senator McLUCAS: And do you know how many people were working there prior to Cyclone Ita?

Ms C Jones : I could not tell you exactly. I believe it was under 20 who would have been eligible to apply for the Disaster Recovery Allowance.

Senator McLUCAS: Because?

Ms C Jones : That was the number of employees who would have lost their employment and who were not otherwise entitled to another welfare payment.

Senator McLUCAS: The number of people who were working there prior to Cyclone Ita was 32. There are, as of tomorrow, zero people employed. And I think we have a problem. There are a number of reasons we have a problem. It is partly because—

CHAIR: Senator, is there a question here?

Senator McLUCAS: There are a number of reasons we have a problem. If you want to stop me asking questions about Aboriginal people being employed at Hope Vale, go right ahead, Senator Macdonald.

CHAIR: I am wanting you to ask a question; you are making some statements, and you are telling the officer what the situation is. Perhaps you could ask the officer whether she agrees that there are this many.

Senator McLUCAS: Have you tried to ascertain why zero applicants have come from 32 potential employees at a banana farm that was established with significant Commonwealth money and that was very successful—why there have been no applicants for that activity to continue?

Mr Wilkins : It is not really the job of this department to go and try to figure out why people are not making applications. Our concern is to assess whether or not people in an area are entitled to some—

Senator McLUCAS: That is correct.

Mr Wilkins : and then to make sure that that is properly administered by the Department of Human Services. But it is not our job to go around assessing whether everybody who could make a claim has made a claim. That is not part of the department's responsibility.

Senator McLUCAS: Is it your role, though, to ascertain whether or not the policy parameters that you have given to the Department of Human Services mitigate the desirable outcome of supporting the one business that was flattened by Cyclone Ita and try to ascertain why the policy that your department has developed does not seem to be working. Don't you think that is your job?

Mr Wilkins : Well, I think it is, but I am not sure that that is an implication of anything you have so far put to us.

Senator McLUCAS: My understanding is that there were 32 people who were employed by the farm prior to the cyclone, 18 of whom may be eligible. There is some question about whether or not people who were on the remote community jobs program—because that was a Commonwealth payment—were therefore ineligible and whether something should have been done about ascertaining whether the policy parameters that were put in place by emergency management were not delivering a desired outcome. I am sure all of us agree that we want this banana plantation to get back into service as quickly as possible, but, as of tomorrow, there will be nobody employed at the Hope Vale banana farm.

CHAIR: Thank you for the information, but is there a question?

Senator McLUCAS: The question is: are you going to do something about it?

Mr Wilkins : What we can do about it is have a talk to Human Services and see if we can get some better information about that, and then we can make an assessment and get the minister some advice about whether there is anything that he could do. We need to get some better facts I think.

Senator McLUCAS: I can tell you that I have only got this information from one source, and it may or may not be absolutely accurate.

Mr Wilkins : I understand that. We will see if we can get some better information and we will look into it. I think that is about the most sensible thing I could offer to do at this point.

Senator McLUCAS: Has the department received representations from Hope Vale Aboriginal Shire Council or local members in the region about this issue?

Mr Crosweller : Not that I am aware.

Senator McLUCAS: No local members?

Mr Crosweller : Not that I am aware.

Senator McLUCAS: Have any Disaster Recovery Allowance payments been made to anyone in Cook Shire, Hope Vale Shire or Wujal Shire?

Ms C Jones : The disaster recovery allowance has only been activated for the Hope Vale Shire. As I said, I am not aware but there may be some people who have applied for the payment now. I just have not seen the management statistics for the last fortnight.

Senator McLUCAS: I did ask you, Ms Jones, how regularly DHS provides those reports to AGs.

Ms C Jones : We usually get them on a monthly basis, or more often if we request it.

Senator Brandis: I should point out, if I may, that the program you are describing is a program that was entirely developed by the government of which you were a member. There have been no changes made to the program by this government.

Senator McLUCAS: Yes there have.

Senator Brandis: No there have not.

Senator McLUCAS: What about the $1,000-dollar payment?

Senator Brandis: On the issues to which you are directing your questions, what has happened is precisely what would have happened under your government.

Senator McLUCAS: Maybe our government might have responded a bit more quickly.

Senator Brandis: You seem to be attacking certain decisions and you are wrong.

Senator McLUCAS: Let us move to another issue with the NDRRA. Following Cyclone Yasi and the Brisbane floods, there were considerable conversations about the way that natural disaster relief and recovery arrangements were applied to local governments applying to reinstate infrastructure. You may recall the model that was put into trial called the Local Government Value for Money Pricing Model. Is that pricing model being applied to those local authorities affected by Cyclone Ita?

Ms C Jones : The arrangement you are referring to was a trial arrangement under the National Partnership Agreement established with Queensland for the reconstruction following the extraordinary flooding events in 2010-11 and followed by Tropical Cyclone Yasi. It has not been extended for the current season. It was established in recognition, I guess, of the scale of the impacts from those previous events and the consequent impacts on the labour market as a result of that. We have not seen the same scale of impacts from this disaster season to warrant an extension of the trial at this point.

Senator McLUCAS: Have representations been made to extend the trial?

Ms C Jones : Yes, they have.

Senator McLUCAS: And the decision has been made by this government to not extend the trial?

Ms C Jones : That is right. Ministers Keenan and Truss have jointly written to the Queensland government.

Senator McLUCAS: When was that?

Ms C Jones : I would have to take that on notice. I do not have the date of the letter.

Mr Wilkins : There is a bit more information here. The trial was around an issue which is quite contentious in terms of what sort of incentives you are providing and the situation of recovery from a disaster. The Productivity Commission is currently looking at this whole issue of getting the right incentives in place to actually mitigate disasters. This is one of the issues that they will be looking at in the course of that inquiry, and I think that the government has obviously made a decision to give it to the Productivity Commission to look at as part of a bigger issue about how we incentivise people to mitigate or prevent some of this, or take steps at an earlier point in time that are better for the Australian economy and better for them. You will be aware that some houses in Queensland, for example, that were built under certain sorts of regulations to withstand cyclones did that, and others sort of fell over—

Senator McLUCAS: I do not know if I agree with that, Mr Wilkins.

CHAIR: Thank you, Mr Wilkins and Senator McLucas. Not only has your 15 minutes finished, but we are due to break until 9.45. We will come back to Senator Ludlam, then myself and then Senator Singh.

Senator McLUCAS: I would like to request further time on this issue.

CHAIR: We will come back to you instead of Senator Singh.

Proceedings suspended from 21:31 to 21:45

CHAIR: I call back to order the Legal and Constitutional Affairs Legislation Committee's public hearings for budget estimates for 2014-15. We are currently dealing with group 3, which incorporates national security and criminal justice and the Australian government disaster financial support payment. Senator Ludlam, you have 15 minutes.

Senator LUDLAM: Will Mr Wilkins be back or should we just start with you, Senator Brandis? I am going to traverse a couple of areas that might move into the area of responsibility of ASIO and possibly even the Department of Defence.

Senator Brandis: Well don't, because they are not here.

Senator LUDLAM: I recognise that, Senator Brandis—thanks heaps. I recognise that this is possibly a bit of a cross-portfolio issue, but it will be fine if you constrain yourself to your area of responsibility. It relates to a US drone strike that killed two Australian citizens—or one Australian citizen and one dual citizen—late last year in Yemen, on 19 November, I think. Senator Brandis, when did you hear of that strike?

Senator Brandis: I cannot comment on those matters; you know that.

Senator LUDLAM: Why is that?

Senator Brandis: Because I cannot; you know that.

Senator LUDLAM: Are you just refusing to?

Senator Brandis: I am not at liberty to.

Senator LUDLAM: Why? Spell it out for us.

Senator Brandis: Under the conventions and practices of the parliament. If you do not know that, you should and now you do.

Senator LUDLAM: Did you have any role in informing the families subsequent to that strike that killed two Australian citizens?

Senator Brandis: Me personally? No.

Senator LUDLAM: Did the department?

Senator Brandis: I do not think so.

Senator LUDLAM: Mr Wilkins?

Mr Wilkins : I am sorry, what was the—

Senator Brandis: Did the department have any role in informing the families of two Australians killed in a drone strike?

Mr Wilkins : Apparently it was police and consular officials, not this department.

Senator LUDLAM: Are you aware whether the families were sworn to secrecy on being told of those strikes?

Senator Brandis: No.

Mr Wilkins : No.

Senator LUDLAM: Do the Attorney-General's Department or you, Minister, have any visibility at all of these matters?

Senator Brandis: I do not quite know what you mean by the term 'visibility' in that context.

Senator LUDLAM: Do you share any responsibility? I presume, if I take this up with ASIO, that they have a role. The Department of Defence presumably has a role.

Senator Brandis: I do not know. We do not comment on these matters.

Senator LUDLAM: Just because you do not feel like it?

Senator Brandis: No, because, as I pointed out to you, these are national security matters and we do not report to this parliamentary committee in open session in relation to that. If you were a member of the Parliamentary Joint Committee on Intelligence and Security, they look at these national security matters with more particularity in camera than this committee can, for obvious reasons.

Senator LUDLAM: Staying away from that particular operation, what is the Australian government's understanding of the legality under international law of these strikes against various people in various parts of the world?

Senator Brandis: The breadth of your question makes it impossible of an answer because there are different circumstances in each case, I assume.

Senator LUDLAM: So when I am specific you cannot answer; when I am general you cannot answer either.

Senator Brandis: If I may finish my answer, please: nevertheless, I am not aware that the Australian government has a view of legality of these matters in any event.

Senator LUDLAM: Are you comfortable that they are legal under international law—given that two Australian citizens were blown away in one of these strikes?

Senator Brandis: I am not commenting on the matter.

Senator LUDLAM: I am presuming that, if the Chinese government had assassinated two Australian citizens, you would have a view. You would be putting that out there.

Senator Brandis: You can assume that, but I am not expressing any views—nor would it be appropriate.

Senator LUDLAM: That is fascinating. Does the Australian government have any evidence that these two men were, in fact, terrorists?

Senator Brandis: I refer you to my earlier answer.

Senator LUDLAM: Wow. Is the Australian government aware of how many civilians have been killed in these drone strikes in various parts of the world?

Senator Brandis: I do not think so.

Senator LUDLAM: Not interested?

Senator Brandis: This has nothing to do with Australia.

Senator LUDLAM: Are you aware of whether the Pine Gap base in Central Australia plays a central role in the targeting of these strikes?

Senator Brandis: No, and if I were, I would not be commenting on the matter.

Senator LUDLAM: But that would be something to do with Australia, would it not?

Senator Brandis: I am not aware and, if I were aware, I would not be commenting on it.

Senator LUDLAM: I guess it is better to just not be interested in it at all.

Senator Brandis: It is probably better not to ask questions that you know cannot be answered in this forum.

Senator LUDLAM: You could choose to answer these questions in this forum.

Senator Brandis: No, I could not choose to answer these questions in this forum. If you do not understand that, you do not understand a pretty important principle that governs the operation of this committee.

Senator LUDLAM: I think I understand it pretty well. I can take these questions up with Defence, but did you or your department take this matter up at all with your counterparts in the US after it came to your attention that Australians were involved?

Senator Brandis: I will not be disclosing to you or to Senator Waters what matters I discuss with my counterparts in the United States.

Senator LUDLAM: If Australian civilians were involved who were not accused or suspected of being involved in any terrorism related activities, would the Australian government's position be any different?

Senator Brandis: That is a hypothetical question.

Senator LUDLAM: Better hope it stays that way! I am getting nothing, Chair, so I will leave it there.

CHAIR: I want to ask about how the national security elements of your portfolio are funded. Is it a specific budget item? Can you indicate to me—

Senator Brandis: When you say 'national security elements of the portfolio'—there is one of the major national security agencies, and one only, in the portfolio and that is ASIO. You may or may not classify the Australian Federal Police or the Australian Crime Commission as a national security agency. They are not governed by the Intelligence Services Act, for example. For some purposes they might be thought to be; for other purposes not. Then there are national security functions within the department. So there is the departmental allocation and then there is the ASIO appropriation, which is in the PBS. If you treat the AFP or the ACC as, for some purposes at least, part of the national security agencies, their funding is also set out in the PBS.

CHAIR: Perhaps I was being a bit lazy. What does program 1.2, National Security and Criminal Justice Group, do?

Senator Brandis: I will leave that to Mr Wilkins.

Mr Wilkins : There are a number of components of that. There is an area that deals with legal policy in relation to national security and an area that deals with programs such as countering violent extremism and terrorism. They also deal with issues around chemicals of concern—there is a program looking at that. There are issues in the area of criminal justice, which, as the Attorney-General intimated in relation to the laws and powers and the functions and programs of the AFP, may or may not be included. For some purposes they are included in national security and for some purposes they may not be—similarly with the Australian Crime Commission. We look at the policy around their legislation. We also look at their functions.

There are elements. Emergency Management Australia has a crisis coordination centre which is used, amongst other things, for terrorism related matters and for national security related matters, and that is an area of coordinating Commonwealth activity in the event of an incident. It is also a way of coordinating state activities where there is an incident. So there are quite a number of different aspects of this. I have probably left some things out, but, off the top of my head, they are some of the main components. I do not know whether Katherine Jones has anything to add. Is there something major I have left out of that list?

Ms K Jones : Mr Wilkins gave a fairly comprehensive list of the different types of activities that are funded within our group. There are some other activities such as funding towards the Australia-New Zealand Counter-Terrorism Committee that involves our interaction with the states and the territories and a range of other matters. We could take it on notice to break down some more details for you if you would like.


Senator Brandis: Senator Macdonald, there is another way to come at your question. If you look at pages 27 to 28 of the PBS, in the first box the objectives of the program are set out, but more importantly—and I think this might be more helpful to you; you asked what the program does—in the box that begins halfway down page 27 and goes on to most of page 28, it sets out what the program has done or is doing in the current year.

CHAIR: Thank you, Minister. I was looking a little bit further on and did not quite get to that, but that is really what I am looking for, just to try and understand a little bit better. I have been here a long time. I have never understood outcomes, programs and groups when it comes to estimates. I think they are only ever done to confuse the Senate committees! In my instance, you succeed in that! This is a comment I have been making for a long time.

Senator Brandis: You might recall that in 2007, when the Labor government were elected, one of their promises was to make the budget statements and the portfolio budget statements more transparent. Like a lot of promises, it was not kept.

Mr Wilkins : There is an important function that I did leave out, and that is protective security. The department and the Attorney-General are responsible for the protective security of the Commonwealth. That is the measures that agencies and departments are meant to take to safeguard themselves in a security sense, dealing with the vetting of people, the securing of places and the securing and classification of information. The rules, if you like, and compliance around that are an aspect that the department looks after. It also does risk analysis in relation to people, particularly ministers, but also visiting dignitaries and people like that and for events such as the G20 meeting—well, the G20 meeting is probably not a good example—the meeting in Perth or even the Anzac ceremony.

CHAIR: Thanks for that. If any of my questions are inappropriate, of course you will tell me they are inappropriate. You kindly mentioned G20. What is your department's involvement in G20?

Mr Wilkins : We have two areas of involvement. As I said, we do have a role in doing risk analysis. The lead for security in this particular case is the Prime Minister's department. That is why I said it is probably not a good example, but we contributed to a risk analysis for that event which then informs the steps that need to be taken by the different agencies, including the state police and the Commonwealth police et cetera. The second thing is that we are chairing the G20 subcommittee that is dealing with corruption, which is an important issue for the G20. Australia, as you know, is leading this G20 meeting in November, and corruption was an important part of their agenda. They are the two specific areas that we are involved in.

CHAIR: I see, again, you anticipate me to a degree. One of the deliverables is building capacity in partner countries to prevent, detect and disrupt corruption. How much more can you tell me of what your department does in those fields?

Mr Wilkins : We are working closely with Minister Keenan's office at the moment, looking at this area. It is something which is important. We have an international division that does a lot of work in capacity building in the region. This is not only on corruption but also things like money laundering, counter-terrorism, financing, confiscation of assets and criminal law. A lot of work is done by that group, helping people draft laws, helping them understand what it takes to enforce the laws and working alongside the AFP in some cases.

CHAIR: When you say helping people draft laws, do you mean other countries?

Mr Wilkins : Countries in the Pacific or in Asia in particular.

CHAIR: Could I ask you—the answer may be no, that you cannot tell me—what countries we are helping with in preventing, detecting and disrupting corruption?

Mr Wilkins : I think we can tell you. I will ask Katherine Jones to answer that question.

Ms K Jones : As Mr Wilkins said, the key countries we do work with around policing and crime that has an element corruption to it are Pacific countries. We also work with a range of countries in South-East Asia, including Indonesia, Pakistan, Sri Lanka and other countries, working on a range of transnational crime laws. It covers laws that go to addressing corruption, but also laws around, as Mr Wilkins said, money laundering and other activities that contribute to corruption in those countries. The work that we do is about enabling or assisting them to strengthen their domestic legislation, enabling them to have greater capacity to actually properly implement the laws. It is all well to have good laws on the books, but you actually need to be able to implement them and to have prosecutors who know how to charge people against those laws. We do work with both the justice agencies that develop the laws and the prosecutorial agencies to effectively implement the laws.

CHAIR: Naturally, you are only there at the invitation of those particular countries.

Ms K Jones : Yes.

Mr Wilkins : Absolutely.

CHAIR: Are the people who do the work departmental officials, or do you contract the people to do that?

Mr Wilkins : I think these days they are almost always departmental officials. It is actually an opportunity to form relationships and networks as well. There is an ongoing dividend there as well.

CHAIR: Are the officers who are doing that usually trained policemen, or trained law enforcement people?

Mr Wilkins : They would be people who trained in the law. They would typically be lawyers rather than policemen, but there would possibly be some people with policing experience and other law enforcement experience.

Ms K Jones : We certainly collaborate with both the AFP and the Commonwealth Director of Public Prosecutions. We use expertise in other Australian government agencies to work together in some of these countries, to work with their police forces, their prosecutors and their justice agencies. We draw expertise from a range of law enforcement and prosecutorial agencies in Australia.

CHAIR: Does the funding for these activities come out of your department, or Foreign Affairs, or Defence?

Mr Wilkins : That is a good question. It is mainly from DFAT. It is mainly a species of aid money but not entirely. It is a bit of a cocktail, but substantially it comes from DFAT.

CHAIR: So DFAT pays you to deliver these services.

Mr Wilkins : Yes, we can draw down an amount for funding in relation to those activities.

CHAIR: Again, as I say, I do not want to embarrass the government or ask questions that I should not be asking, but, perhaps on notice, is it possible for you to indicate which Pacific countries we are currently helping? If you have it now, I will take it now.

Mr Wilkins : I think Catherine Hawkins can probably tell you now, just quickly.

Ms Hawkins : In terms of the countries that we are working in, we have been cooperating with Pakistan—

Mr Wilkins : No, in the Pacific.

Ms Hawkins : In the Pacific, we have been working with Papua New Guinea, we have been doing work with the Cook Islands, with Kiribati, with Tuvalu—so a range of countries in the Pacific. We work with the Pacific Islands Law Officers' Network, or PILON.

CHAIR: Where is that based?

Mr Wilkins : At the moment it is serviced by a secretariat in Samoa but meets annually in different countries around the Pacific. It is, basically, the senior legal officers from each of those countries. They look at a range of issues, including some of the issues that you just mentioned around corruption and crime, et cetera. It is an opportunity to, I suppose, encourage people at that level to buy into fixing up some of these problems and addressing some of these issues. We sometimes get the attorneys-general or the solicitors-general along, so it is a relatively senior meeting.

CHAIR: Ms Hawkins, you mentioned some countries, and you said countries like that. Can you give me them all? Perhaps on notice if it is not—

Ms Hawkins : I will give you the full list on notice.

Mr Wilkins : We could even, if you are particularly interested, give you a briefing on it.

CHAIR: Yes, I might contact you and do that. Are there sensitivities or difficulties in working in Pacific Island countries with these sort of activities?

Mr Wilkins : There are some difficulties, obviously. There are some capability issues and capacity issues. People there are fairly realistic about those things. I think more difficult issues are, perhaps, things like the role of women in those societies and how you deal with some quite visceral issues of that sort in those societies. People are changing but changing slowly in those respects. You sometimes have the feeling that you are taking three steps forward and then two steps back. I will ask my colleagues if they have anything to add. But I think we are making a difference and I think that they are changing. It is a slow and gradual process.

CHAIR: Now to my final question, because my time runs out at 10.09. How many people in full-time positions—full-time equivalents—work in this area of your department? You can give me that on notice if it is not readily—

Ms K Jones : There are approximately 30 people in our International Legal Assistance Branch who are engaged in doing work in the Pacific and South-East Asia.

CHAIR: And, as we speak, some of them would be on location in the islands?

Ms Hawkins : They are indeed.

CHAIR: Okay. Thank you for that. Next I have Senator Singh.

Senator SINGH: I am going to give my time at this point to Senator McLucas, and I will come back later.

Senator McLUCAS: I want to go back to the questions around NDRRA, if that is possible. Earlier I did ask a question about when Minister Keenan and Minister Truss wrote to Queensland—have you got the date of that letter yet?

Mr Crosweller : My understanding is that the letter from the minister has been prepared and it is due to be issued back to Queensland very shortly.

Ms C Jones : I am sorry, Senator, I do not have the date of the letter. I will have to take that on notice.

Senator McLUCAS: Okay, could you provide that to me on notice. I wrote to both the Prime Minister and Minister Keenan on 14 April, raising this issue with him. Do you know where the answer to my letter might be?

Ms C Jones : I understand a letter has been prepared and has been signed by the minister, but I am not sure where it is up to beyond that.

Senator McLUCAS: I will expect that shortly. I received an acknowledgement letter, I think last week—maybe even the week before. Coming back to your comment, Ms Jones, that Minister Keenan has written to Queensland to indicate that the value for money proposal will not be used. What is the rationale for that?

Mr Wilkins : I think we went through that.

Senator McLUCAS: You made the point that we need to mitigate and prevent damage from natural disasters.

Mr Wilkins : Yes, but I also just made the point that the government had made that decision and they had preferred that the Productivity Commission should look at this larger issue, of which this is a part. So it is a governmental decision. I think it is a decision that you might better discuss with the minister.

Senator McLUCAS: My point is that this government misunderstands what the purpose of the value for money proposal was. I take your point, Ms Jones, that what we were dealing with after Yasi and the floods, including the Bundaberg floods, was enormous. I think that opened the door for a conversation between QRAA, people like me and our then ministers to contemplate what had in fact been happening for a very long time, and probably outside of the regulations that had been in place under many governments in the past, and that is the use of internal labour to reconstruct, particularly roads. You cannot mitigate against a cyclone in North Queensland, I am sorry, Secretary—that is just not possible to happen.

Mr Wilkins : I am just saying that this is one of several issues, including that of mitigation, that is going to be looked at by the Productivity Commission because it is a contentious area. No other states do this, actually—it is very much a Queensland matter—and the Department of Finance has some big question marks over the way in which this scheme operates. As Ms Jones indicated, it was in the peculiar circumstances of the size of the disaster that hit Queensland that people were saying, 'Well, okay, let's just see if this works or if it can work in that particular circumstance.' It had not been contemplated by the Commonwealth prior to that, and certainly not in other places.

Senator McLUCAS: But it is true to say that local government, particularly non-metropolitan local government, in Queensland have been using what they call their 'day labour' for a very long time. I think when we had Cyclone Larry someone had a look at it and thought maybe we should do this again a different way. Then when we had the Brisbane floods and Yasi we had to have a bigger conversation about using day labour. But the truth of the matter is that if you are a rural shire, like the Cook shire, and you want to put out for tender the fixing of a culvert over a certain creek, you do not get tenders from major construction companies, you just do not—they do not put the tender in. It is more expensive, and it takes a longer time to get that reconstruction happening.

On QRA's advice, you do get better value for money if you actually use the local day labour. The questions around whether or not the local governments are gouging NDRRA, I think, have been put to bed. I encourage the government to have another look at particularly Cook Shire Council, Wujal Wujal Aboriginal Shire Council and Hope Vale Aboriginal Shire Council, but to a lesser extent Douglas Shire Council and Mareeba Shire Council, being able to use day labour. The member for Leichhardt has said very clearly on the radio that he was talking to the Prime Minister and the Prime Minister has agreed. You are telling me—

CHAIR: Is there a question here somewhere?

Senator McLUCAS: You are telling me a different story, I think, by telling me that Minister Keenan has written to Queensland to say that we will not be able to use the local government value for money pricing model.

CHAIR: Is there a question there? I am not sure what you are being asked.

Mr Crosweller : Perhaps to clarify, the government has provided day labour for the 2010-11, 2011-12 and 2012-13 disaster events in Queensland—for those three years right across the board. Under the NPA with Queensland, there was also a requirement to do an assessment of the day labour trial. That assessment is currently underway between the QRA, the inspectorate and the task force of the Commonwealth government. We are awaiting the outcomes of that review. As the secretary has said, that will also assist in informing the review that is being currently undertaken by the Productivity Commission.

Senator McLUCAS: So under the NPA there is an assessment of the day labour trial. When did that begin?

Mr Crosweller : I am sorry, I did not—

Senator McLUCAS: You said that under the NPA there was an assessment of the day labour trial. Was that jointly done with QRA?

Mr Crosweller : There is a requirement for an assessment, and that is currently underway between QRA, the Queensland Reconstruction Authority, and the Commonwealth government.

Senator McLUCAS: When is that expected to be completed?

Mr Crosweller : We are awaiting the outcome of that, so we have again reminded the parties concerned that that review needs to be completed. That has been communicated back to Queensland quite recently.

Senator McLUCAS: I think I missed something. QRA and who are doing the assessment?

Mr Crosweller : The Queensland Reconstruction Authority and the department of infrastructure of the Commonwealth government.

Senator McLUCAS: And that is a report to whom?

Mr Crosweller : That will come back to us, to EMA. It is a joint report between Queensland and the Commonwealth. It is to come back for review and then it just forms part of the arrangements under the national partnership agreement.

Senator McLUCAS: When were you expecting that report to be provided?

Mr Crosweller : It was expected some time ago, actually, so we have reminded the parties that that work needs to be completed.

Senator McLUCAS: When you say some time ago, was it six months?

Mr Crosweller : I would have to take it on notice and get a specific time.

Senator McLUCAS: Thank you. That would be good if you could tell me when it was expected and also when you do expect it—if you understand the difference in the question.

Mr Crosweller : Yes, I do.

Senator McLUCAS: Mr Wilkins, was the PC report a reference from A-G?

Mr Wilkins : References are given by the federal Treasurer, obviously, but certainly the Attorney-General and the minister asked for that to occur.

Senator McLUCAS: When is the PC expected to report?

Mr Crosweller : My understanding is that it is expected to report in November.

Mr Wilkins : Let's be accurate.

Ms C Jones : There is a two-step process with the Productivity Commission report. The draft report is due in September. Then they will undertake public hearings throughout October and November and the final report is due December this year.

Senator McLUCAS: My final discussion, Mr Wilkins, is around the question of why Queensland is different. I do not particularly take pride in saying that, but there is a reason we are: we are in the tropics and beside the Coral Sea and we get more cyclones.

Mr Wilkins : Certainly the figures that we have around the amount of damage suffered in Queensland, particularly over recent years, show quite an extraordinary gap between Queensland and everybody else.

Senator McLUCAS: It is a matter of geography. We are not that special.

Mr Wilkins : Geography and luck perhaps.

Senator McLUCAS: Geography and weather. Going back to my conversation—and this will be my final set of questions: regarding income support for businesses following a cyclone event, what is that called in this little table? This is if a business needs support. I remember after cyclones Larry and Yasi that banana farmers on the Cassowary Coast region received quite a significant amount of clean-up support. But my recollection, and it may be wrong, was that there were some grants made directly to primary producers as well.

Mr Wilkins : This is clean-up costs?

Senator McLUCAS: Is it just clean-up, or were there direct grants as well?

Mr Wilkins : I do not know, because that is normally a state matter, isn't it?

Mr Crosweller : First and foremost it is a state matter.

Senator McLUCAS: All state?

Mr Crosweller : Yes.

Senator McLUCAS: Okay, I will take that to the state. Is the Structural Assistance Grant, which I understand can be $10,995—that is the maximum—for an individual and $14,665 for families, also a state grant?

Mr Wilkins : What is it called?

Senator McLUCAS: According to my research it is called a Structural Assistance Grant.

Mr Crosweller : My understanding is that it is a state grant. They may seek reimbursement from the Commonwealth for a proportion of that under category A or B. It is a state grant for which the Commonwealth provides some assistance.

Senator McLUCAS: Does the state report to you about whether there have been applications made? There are three types of grants in that section: Immediate Hardship Assistance; the Essential Household Grant; and the Structural Assistance Grant. Do the states report to you about how many applications have been made?

Mr Crosweller : I think that varies from state to state in terms of how they acquit the funds to the Commonwealth, but I might ask Ms Jones to comment on that.

Ms C Jones : The state will give us an estimate of likely expenditure under categories of the NDRRA at this early stage, but they will not give us the details as to particularly how many claims, according to the various types of assistance underneath that category A of the determination.

Senator McLUCAS: What has Queensland indicated that the likely cost to the Commonwealth of Cyclone Ita might be?

Ms C Jones : We are still awaiting the figures for this event.

Senator McLUCAS: It was a while ago now.

Mr Wilkins : It does take a while for these numbers to come in.

Senator McLUCAS: So you are not unsurprised that Queensland has not indicated it yet?

Mr Wilkins : No.

Ms Jones : At the moment they are still expending funds related to this particular disaster event. I think for the purpose of the budget papers they gave us a very broad figure that will be reflected in the forward estimates. But it was a very broad figure at this point and not broken down according to particular matters.

Senator WRIGHT: In relation to INSLM, the Independent National Security Legislation Monitor. Attorney-General, could you advise how the government intends to respond to the INSLM's previous reports and the further one due in June.

Senator Brandis: I actually took a question on this topic in the Senate in the last sitting week. The answer is that we intend to respond. The reason I make that perhaps obvious reply is that it was by no means obvious that there was going to be a response to the INSLM's reports, because none of the reports by the INSLM were responded to by the previous Labor government. When the coalition was elected, in September last year, we found that for all the fuss that the Labor Party had made about the statutory office, his reports had been entirely disregarded, and some were some years old. So, we will be responding to the reports. As to what the response will be and what it will contain, you will just have to wait until the response is finalised. But, unlike the previous government, we will be responding.

Senator WRIGHT: Is there a projected time around when we could be expecting it?

Senator Brandis: There may be among those doing the work on this, but I am not in a position tonight to tell you what it is.

Senator WRIGHT: There is legislation currently prepared to abolish the INSLM. How will the monitor's functions be continued?

Senator Brandis: The monitor's functions will be continued by the various law reform and oversight bodies that exist. Let me give you an example. You would be familiar with the Parliamentary Joint Committee on Intelligence and Security. That committee, during the life of the last parliament, on the reference of Attorney-General Roxon, conducted a very exhaustive review of Australia's national security laws. By that I mean particularly the laws establishing the various national security agencies. A unanimous report was tabled in the dying days of the last parliament. I use that to give you an example of how the parliamentary committee, through its own system, is not only capable of but does engage in very exhaustive law reform in this very area. Then there are the other statutory bodies that are responsible more generally for law reform, including of course the Australian Law Reform Commission. And this very committee has as one of its functions to keep laws within acts of parliament under this portfolio under review. So the functions that the INSLM has performed will continue to be performed by bodies of that kind.

Senator WRIGHT: I would like to get your comments on each of these views that have been expressed and that raise concerns about that approach. First, you have indicated that a range of bodies will be involved in taking over those function, so the conduct of the oversight would be spread over a number of other oversight mechanisms and it would potentially increase bureaucracy and dilute focus—

Senator Brandis: I do not agree with that. Can I just make the point to you that I hope you do not think this is a semantic difference. I do not think it is semantic. You said 'oversight'. But there is a difference between review and oversight. Oversight, for which there are provisions elsewhere—for example, the Independent National Security Monitor, the Inspector-General of Intelligence and Security—conducts oversight. And by oversight I mean oversees the operational activity of the agencies. But we are not talking here about oversight in that sense. What we are talking about is periodic reviews of the legislation in the manner of law reform.

Senator WRIGHT: I do understand that. Given that there will be an array of different bodies and organisations looking at it, sometimes there will be overlaps and sometimes there will not be.

Senator Brandis: There might be—

Senator WRIGHT: Isn't there a risk that there would be an increasing amount of bureaucracy and it will be less efficient than having one organisation do it. That is certainly one view that is put.

Senator Brandis: It might be, but I think it is wrong, because these are not new bodies. These are existing bodies. We are not creating a new body and in fact what we are doing is removing a body or an office. So that will reduce rather than increase bureaucracy. It will reduce by one the number of such bodies. Nor do I think that any harm is done by having more than one set of eyes on this legislation.

Senator WRIGHT: And as you have so rightly pointed out, some of these bodies were already in existence at the time that the INSLM was established, which would suggest that there was a view at the time that their combined functions would not be adequate to be able to do the kind of careful ongoing methodical review of the increased—perhaps, in some cases—terrorism laws. What would you say to that?

Senator Brandis: I will tell you what I say to that: I agree with you, up to a point, because I was a big supporter of the establishment of INSLM. It was established in the parliament before last—in other words, during the life of the first Rudd government—and it was not an ideal that came from the Labor Party; it was an idea that came from the Liberal Party. It was proposed originally by the former member for Kooyong Mr Petro Georgiou and it was moved in the Senate by former senator Troth and seconded by me.

So I could see—and still can see—the point of having such a body, but this was a savings measure. I do not mean to be tedious about this, but it is the stark, unbridgeable reality against which all public policy decisions must be measured at the moment. The Abbott government, when it was elected, inherited a public debt of unprecedented levels trending, according to Treasury, to a public debt of $667 billion—far and away the highest level of public debt in Australian history and debt that had escalated from zero per cent of GDP to 26 per cent of GDP in just six years—so we had to find savings measures.

This morning, Senator Wright, we had some discussion about the arts, and I pointed out to you that we had to reduce the arts budget by 3.1 per cent. When the country had had a period of good Liberal government in the previous government, we were able to increase the arts budget by 65.8 per cent. When government runs the economy well, you can do things that you cannot afford to do when you have had a period of a Labor government that has left a complete train wreck. In a perfect world, if resource constraints were not an issue, it might be a good thing to have an INSLM, but we needed to find savings measures, and, because there were bodies that were capable of doing the work of the INSLM, we identified this as a savings measure within the portfolio.

Senator WRIGHT: That is an interesting observation. I am not clear, given that you indicate that it was largely a savings measure—and I understand the context you have given for that—that there is an argument that the pre-existing conditions that made it a good idea have changed in any way that make it not a good idea now. As opposed to being a savings measure, that is.

Senator Brandis: That is the way I put it, Senator. I could not have been more frank with you. My views about this have not changed over the years. I think this was a marginal benefit, these are all marginal judgements and, when you are looking for savings measures, you cut at the margins rather than at the core.

Senator WRIGHT: Clearly it would have been helpful if the previous reports had been effectively responded to.

Senator Brandis: It would have been very helpful if they had been responded to at all, but they were completely ignored by the previous Labor government.

Senator WRIGHT: Certainly that is something that I called for consistently as well. If I can just look at the arguments that people have made about why the various bodies that you have cited as being able to perform some of these functions do not actually do the complete job—and I will ask you to comment on them. The INSLM looks specifically at the operation effectiveness and implications of the legislation, and the IGIS does not do that. Would you agree that that is the case?

Senator Brandis: The IGIS has a different role, and that is the distinction I was pointing out before. The IGIS looks at the operation of the agencies, not the legislation.

Senator WRIGHT: Yes. Another point that is made is that the INSLM, again, looks specifically at the operation effectiveness and implications of the legislation in its entirety, which the Parliamentary Joint Committee does not do.

Senator Brandis: These are all good observations, but the point I am making to you is that this was a savings measure, because the government felt—given that we had to find savings to begin to repair the financial train wreck that we inherited—that we had to trim bodies which, although perhaps worthy bodies, were of marginal utility.

Senator WRIGHT: Finally, there is the observation that the scrutiny or the review does not happen on an ongoing basis. The parliament will look at it sporadically, but it will not look at it as an ongoing issue. Often it is triggered by sunset clauses and things like that. Would you agree with that too?

Senator Brandis: I cannot disagree with anything you say. The INSLM, which was originally an idea which came from the Liberal Party and was belatedly adopted by the Labor Party, was a good idea but it was a marginal idea. There is no function of the INSLM that cannot be performed by other bodies, although the observations you have made are good ones. If these were the days when we had a government which produced 10 budget surpluses in a row, the country was awash with prosperity and we lived in the land of milk and honey again, as we did when Mr Howard was the Prime Minister, then we would not be having this discussion. But, sadly and shamefully, we now live in a time after the sixth biggest budget deficits in Australian history consecutively and we have to cut our cloth to suit our circumstances.

Senator WRIGHT: We will look forward to seeing the response, thank you.

CHAIR: Can I go back to the Australian national disaster financial support. Are you aware that the Queensland government have introduced a program to try not only to rebuild from natural disasters but to build so that future natural disasters will not have the same impact?

Senator Brandis: I am generally aware of that. I have heard of that. I am not familiar with the detail. Perhaps Mr Wilkins can say something more about it.

Mr Wilkins : We are aware that that is certainly a component of the thinking going on, particularly after those big disasters. The extent to which it was done systematically and the extent to which it was accepted here by the finance department in the context of the current NDRRA, which has a betterment clause in it, is problematic. That is one of the reasons why the minister has been very keen to get the Productivity Commission to look at this issue. He is sympathetic to the view taken by Queensland ministers that it is much better to spend a much smaller amount of money on mitigation than to spend huge amounts on recovery after the events and often just to reinstall the same problematic infrastructure that partially gave rise to the damage in the first place.

We are aware of it. There is a certain amount of logic to it. It is probably not ideal within the current way in which Commonwealth-state funding works, and so hopefully the Productivity Commission report into disasters and disaster mitigation will give us something which the government can look at in terms of Commonwealth-state relations and the recovery aspects which will allow incentives to be given to local governments and state governments to invest in mitigation rather than simply betterment in terms of the restoration of infrastructure after the event. That is the key.

CHAIR: Did you say that the NDRRA payments go out of Treasury? They are done out of your department, aren't they?

Mr Wilkins : The AGDRP payments to individuals are handled by the Department of Human Services. I authorise payments under the NDRRA which are then made out of the Treasurer's reserve because they are usually large amounts of money. We do not hold that sort of cash—

CHAIR: No, but the authorisation of the expenditure is your—

Mr Wilkins : Yes, but, given the vast amounts of money, the expenditure review committee of the cabinet and certainly the Department of Finance and the Treasury take a very big interest in what we are doing. 'Betterment' is this idea of replacing with better infrastructure on the basis that that will last longer than simply reinstating the old style of infrastructure. That is a matter where we need to consult with the Department of Finance, and there needs to be a pretty good cost-benefit analysis on that under the existing NDRRA rule. That is not optimal because, really, you would want to be encouraging people to take even earlier action than that—at the mitigation state and the planning stage, and when they are actually planning and maybe even zoning and thinking about how they are going to put infrastructure in in the first place—and giving them some incentives to do so. That is where we are hoping that the Productivity Commission will have a look at this and provide a way forward for the Commonwealth and the states.

CHAIR: It makes common sense as you have described it. The Queensland government was probably the first state to have done that. I was very pleased to see them doing that. But I did hear that there was some concern about how much the Commonwealth was contributing to the betterment. Was there any confusion about the payments from the Commonwealth and where betterment occurred?

Mr Wilkins : Was there some confusion about it?

CHAIR: Or concern from the Commonwealth point of view.

Mr Wilkins : There is here, which I have just had drawn to my attention: an $80 million local government betterment fund in Queensland under the national partnership agreement, and that is shared fifty-fifty. I do not know whether Catherine—

CHAIR: That is shared fifty-fifty with the Commonwealth?

Mr Wilkins : Yes.

Ms C Jones : That is correct.

Mr Crosweller : We did an inspection in Queensland with the inspector on the task force on the effects of betterment, and it is quite clear that, administered through local government, it has had significant benefit in the local area, where they have targeted what are relatively small amounts of money to great effect. We have certainly seen where it is targeted and where the greatest benefit is understood, and that a relatively small investment does make a difference in the longer term. I do not think there is any confusion or problem with betterment in that regard. I think it has been well established.

CHAIR: I will whisper this so nobody else hears it: is Queensland the only state that is getting this fifty-fifty betterment arrangement?

Mr Crosweller : At the moment it is, because it is under the national partnership agreement which was struck as a result of the 2010-11 events. Because of the extent of the damage in 2010-11 from Yasi and the flooding, and then again in 2011-12, and slightly less in 2012-13, there was certainly an argument that the hazard space was peculiar to Queensland and required a more specific response. So the NPA makes provision in Queensland for matters that the general determination does not make for other states.

CHAIR: I hope Senator Fawcett listened to that reason. I was worrying that I had raised it while he was here. Was that just a trial program? Hopefully there will never be another disaster in Queensland, but this is for the current disasters?

Mr Crosweller : Yes, that is correct. It was for the 2012-13 events following ex Tropical Cyclone Oswald that basically tracked from the Gulf of Carpentaria down to the South Coast of New South Wales. It was a significant rainfall event that created extensive flooding through most of the eastern part of Queensland, essentially from the Gulf of Carpentaria right down to the New South Wales border.

CHAIR: From floods?

Mr Crosweller : Yes.

CHAIR: Heaven forbid, but, should there be another Yasi tomorrow, would that program automatically apply or would it have to be a decision of government at the time?

Mr Wilkins : I think it would have to be specifically negotiated in the way this was negotiated. That is why I think it is important to see if this type of approach can be institutionalised under something the Productivity Commission might be able to recommend.

CHAIR: So that is what they are looking at.

Mr Wilkins : By the sounds of it, this might be a good example to put before the Productivity Commission. It would show that there is a cost benefit in terms of proceeding down this type of path.

CHAIR: As I said before, it makes sense. I do not think anyone could deny that. It is just a shame that governments have not been doing that for the last hundred years. Eventually we have got there. Cyclone Ita was mentioned before. I must qualify this and say I have a particular aversion to the high-profile, over-the-top reporting that the media gives to these things. In Ita's case, it was barely a little more than a blow that everyone took in their stride. There were some communities north of Cairns more severely impacted, and we have had some questions about those areas before. It was relatively small. Has there been a big payout by the Commonwealth for Ita?

Mr Crosweller : No, there has not. As you rightly point out, there was a lot of media. It was a category 5 cyclone, so it was the highest level of intensity, but in terms of scale it was actually quite small. The extent to which it caused damage was actually quite minimal. It certainly did not push anywhere near what we would call severe—

CHAIR: It was a category 5 cyclone at one stage. It was also a category 1 cyclone, which is nothing more than a bit of a breeze.

Mr Crosweller : That is right.

CHAIR: As it crossed the coast, I think it was a category 2 or a category 3.

Mr Crosweller : It crossed the coast and went briefly to a category 5 and then it very rapidly degraded to a category 1 in about 48 hours.

CHAIR: This is relevant here. The impact on the local economy and tourism from this over-reporting is enormous. Is there a quantification of the money that the Commonwealth will have to contribute following Ita?

Mr Crosweller : That is still being determined. The expenses are still being incurred by Queensland. The Queensland Reconstruction Authority is still working with the local councils up there to assess the extent of the damage. The councils are working with QRA to put forward their estimates of damage so that they can be assessed under the determination. Over time that will come to the Commonwealth as a total figure.

CHAIR: Will the betterment arrangement apply?

Mr Crosweller : No, not at this stage. Queensland requested that this season and the damage resulting from Ita be dealt with under the standard determination, not under the NPA. In fact, that was a request from Queensland, from the QRA, prior to the event.

CHAIR: They probably could not have asked for it with a straight face, I would think. They are a very honest government in Queensland these days. That might do me. I will allow Senator Singh to ask some final questions, if she has them.

Senator SINGH: I would like to ask some questions in relation to the Secure Schools Program. I want to turn to that program, which was established by the previous government. It has been extended in the latest budget. Page 63 of the budget papers outlines that the government will provide $18 million over three years—

Senator Brandis: Is that Budget Paper No. 2 you are referring to?

Senator SINGH: I think it is.

Senator Brandis: Yes, it is.

Senator SINGH: Yes, it is. I understand the SSP provides funding for security measures needed in response to racial and religious intolerance. How does the department assess an application for funding under this program?

Mr Wilkins : I will get Mr Anderson to answer that question.

Mr Anderson : At this stage, we have not actually set up the process for the funding that has been identified in the budget. There will be a process where the Minister for Justice will seek nominations of at-risk schools from both state and territory education ministers and from independent schools associations. Then nominated schools will be invited to apply for funding grants. We will look at what is in there. They will have to address the question of why they are at risk and set out in their applications what the factors are that put them at risk. We have not yet got guidelines for exactly how we will assess them.

Senator SINGH: You do not have any guidelines, but this is an extension of an existing program, isn't it? Has something changed that I should be aware of? I understand this has been in place since 2007. Has the structure of the program changed over that time?

Senator BRANDIS: I think you mischaracterise the program by saying that it is an extension of an existing program. This was a policy that was announced by the coalition during the election campaign. It builds upon a program that had been in being under the previous government, but it is a broader and better resourced program. We do treat this as a new program, but I do not deny that there was a somewhat similar though less extensive program under the previous government.

Senator SINGH: Can Mr Anderson provide me with details of the change between the previous government's program and this program?

Mr Anderson : As the Attorney indicated, it has broadly the same name and is broadly for the same purpose but it is in fact a new tranche of funding and so we are anticipating that there will be new guidelines set up to set out the process by which we will be administering the funding.

Senator SINGH: So the funding has changed but the program has remained the same. Is that correct?

Senator BRANDIS: No, that is not what he said.

Senator SINGH: I am asking clarification for that.

Senator BRANDIS: The guidelines have not been settled, Senator.

Senator SINGH: I am asking for clarification from Mr Anderson from the answer he just gave.

Senator BRANDIS: I would refer you to the coalition's policy document, which is in fact referenced at page 63 of paper No. 2; it sets out the details of the policy.

Senator SINGH: Can you please explain to me the difference between the previous government's program, which has the same name, and this current program, other than the funding change?

Mr Anderson : There can be a number of possible differences in the program. One difference I can point to is that this program can involve expenditure on matters that were not covered by the previous program, such as security guards; that is just one of the differences.

Senator SINGH: Security guards. But still, there is the nature of the program. 'A program that is focused on schools at risk of attack, harassment or violence caused by racial or religious intolerance' is still the remit of this program, is it not?

Mr Anderson : That is correct.

Senator SINGH: There would have been guidelines put in place from the last government, wouldn't there?

Mr Anderson : There would have been guidelines previously, yes. But with this new tranche of funding, and given that there are new matters that can be funded under this funding, new guidelines will be developed.

Senator BRANDIS: I can add to that answer if I may please, Mr Anderson. One of the important differences between the coalition's program and the pre-existing program is: whereas the previous government's program only funded capital works, for example, fences, gates and those sorts of things, the new program funds both those capital items but also recurrent items and, in particular, security guards. When I was travelling around during the election campaign and I visited a number of Jewish schools, one thing that they were at pains to say to me was, 'We really need a program that is flexible enough to allow us to spend the money on security guards in some of our at-risk schools.' So when we designed this program it was with that in particular in mind, so it is not just for capital work but also for recurrent expenditure on, in particular, security guards.

Senator SINGH: So human resources as well as capital works.

Senator BRANDIS: If you want to put it that way. I would say it is recurrent costs as well as capital costs.

Senator SINGH: I am still unclear as to why the guidelines would change for assessment for a particular school to apply for this program. Can someone explain to me why the guidelines are being changed?

Mr Anderson : I will take that on notice; my belief is that the Commonwealth Grants Guidelines actually require fresh guidelines for this fresh package of funding.

Senator SINGH: Are the proposed changes to the exposure draft to the Racial Discrimination Act being assessed against guideline changes for this program?

Senator Brandis: No.

Mr Wilkins : No. It had not occurred to us.

Senator Brandis: They have absolutely nothing to do with each other.

Senator SINGH: This is a program that is for schools at risk of harassment or violence caused by racial or religious intolerance. The government is proposing changes to the Racial Discrimination Act. There are no guidelines currently for this program, which were in place until the last election, before this government came into office. I am asking you the reason why. You are not able to tell me the reason why. So I now ask you: is the reason associated with the government's proposed changes to the Racial Discrimination Act?

Senator Brandis: It has nothing to do with it.

Mr Anderson