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Legal and Constitutional Affairs Legislation Committee


In Attendance

Senator Cash, Attorney-General, Minister for Industrial Relations

Senator Stoker, Assistant Minister to the Attorney-General, Assistant Minister for Women, Assistant Minister for Industrial Relations


Mr Iain Anderson, Acting Secretary, Attorney-General's Department

Mr Greg Manning, Acting Deputy Secretary, Legal Services and Families Group

Ms Sarah Chidgey, Deputy Secretary, Integrity and International Group

Families and Legal System Division

Dr Albin Smrdel, Acting First Assistant Secretary, Families and Legal System Division

Ms Alexandra Mathews, Assistant Secretary, Family Safety Branch

Ms Dianne Orr, Acting Assistant Secretary, Family Law Branch

Mr Ryan Perry, Acting Assistant Secretary, Legal System Branch

Legal Services Policy Division

Ms Tamsyn Harvey, First Assistant Secretary, Legal Services Policy Division

Ms Kathleen Denley, Assistant Secretary, Native Title Unit

Ms Danica Yanchenko, Acting Assistant Secretary, Native Title Unit

Mr Adam Nott, Acting Assistant Secretary, Legal Assistance Branch

Mr Michael Johnson, Assistant Secretary, Office of Legal Services Coordination

Ms Samantha Byng, Assistant Secretary, Royal Commissions Branch

Mr David Lewis, General Counsel, Office of Constitutional Law

Integrity and Security Division

Mr Andrew Walter, First Assistant Secretary, Integrity and Security Division

Ms Esther Bogaart, Assistant Secretary, Fraud Prevention and Anti-Corruption Branch

Ms Julia Galluccio, Assistant Secretary, Information Law Branch

Ms Ayesha Nawaz, Assistant Secretary, Security Law and Policy Branch

Ms Autumn Field, Assistant Secretary, Transparency Frameworks Branch

Ms Joanna Virtue, Assistant Secretary, Integrity and Criminal Law Branch

Ms Alana Fraser, Acting Assistant Secretary, Security Emergency and Administrative Law

International Division

Ms Sue Robertson, First Assistant Secretary, International Division

Ms Karen Moore, Assistant Secretary, International Cooperation Branch

Ms Tara Inverarity, Assistant Secretary, International Cooperation Branch

Mr Jesse Clarke, Assistant Secretary , Office of International Law

Ms Stephanie Ierino, Acting Assistant Secretary, Office of International Law

Enabling Services Group

Mr Cameron Gifford, Chief Operating Officer

Mr Stephen Lutze, Chief Financial Officer, Corporate Services Division

Mr Michael Harrison, Deputy Chief Information Officer, Acting First Assistant Secretary, Information Division

Ms Anne Sheehan, Assistant Secretary, Strategy and Governance Branch

Ms Michelle Norris, Assistant Secretary, Human Resources Branch

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

Mr Paul Cronan AM, Official Secretary [by video link]

Ms Emma Appleton, Assistant Secretary, Corporate Branch [by video link]

Ms Joanna Carey, Assistant Secretary, Engagement Branch [by video link]

Ms Laura Sham, Assistant Secretary, Research, Data and Publications Branch [by video link]

Office of the National Commissioner for Defence and Veteran Suicide Prevention

Ms Toni Pirani, Official Secretary

Ms Peta Langeveld, Assistant Secretary

Administrative Appeals Tribunal

Ms Sian Leathem, Registrar

Ms Monique Adofaci, National Director Tribunal Services [by video link]

Mr Chris Matthies, Chief Legal Officer

Ms Jacqueline Fredman, Chief Corporate Officer

Ms Sobet Haddad, Senior Reviewer

Australian Commission for Law Enforcement Integrity

Ms Jaala Hinchcliffe, Integrity Commissioner

Ms Lucinda Atkinson, Executive Director

Ms Judith Lind, Executive Director

Mr Peter Ratcliffe, Executive Director

Australian Human Rights Commission

Professor Rosalind Croucher AM, President

Ms Padma Raman PSM, Chief Executive

Dr Ben Gauntlett, Disability Discrimination Commissioner [by video link]

Ms Kate Jenkins, Sex Discrimination Commissioner

Ms June Oscar AO, Aboriginal and Torres Strait Islander Social Justice Commissioner [by video link]

The Hon Kay Patterson AO, Age Discrimination Commissioner

Mr Edward Santow, Human Rights Commissioner

Commonwealth Director of Public Prosecutions

Mr Scott Bruckard PSM, Acting Commonwealth Director of Public Prosecutions

Mr James Carter, Acting Commonwealth Solicitor for Public Prosecutions

Ms Sabeena Oberoi, Chief Corporate Officer

Mr Steven Burggraaf, Chief Financial Officer

Family Court of Australia & Federal Circuit Court of Australia

Mr David Pringle, Chief Executive Officer and Principal Registrar [by video link]

Ms Virginia Wilson, Deputy Principal Registrar and National Family Law Registrar [by video link]

Ms Anne-Marie Rice, Senior Registrar and Executive Director Dispute Resolution [by video link]

Ms Lisa O'Neill, National Registrar Risk Policy and Family Violence [by video link]

Independent National Security Legislation Monitor

Mr Grant Donaldson SC, Independent National Security Legislation Monitor [by video link]

National Archives of Australia

Mr David Fricker, Director-General

Ms Ruth Fenwick, Assistant Director-General

Office of the Australian Information Commissioner

Ms Angelene Falk, Australian Information Commissioner and Privacy Commissioner

Ms Elizabeth Hampton, Deputy Commissioner

Office of the Commonwealth Ombudsman

Mr Michael Manthorpe, Commonwealth Ombudsman

Ms Penny McKay, Deputy Commonwealth Ombudsman

Ms Lisa Collett, Chief Operating Officer

Mr David Fintan, Senior Assistant Ombudsman

Committee met at 09:03

CHAIR ( Senator Henderson ): I declare open this hearing of the Senate Legal and Constitutional Affairs Legislation Committee for the budget estimates. The Senate has referred to the committee the particulars of proposed expenditure for 2021-22 for the portfolios of Home Affairs and the Attorney-General and other related documents. These are budget estimates proceedings and the outcomes to be heard during today's estimates are from the Attorney-General's portfolio. The committee has set Friday 16 July 2021 as the date by which answers to questions on notice are to be returned. The committee has also decided that written questions on notice should be provided to the secretary by 5 pm on Friday 11 June 2021.

Under standing order 26, the committee must take evidence in public session. This includes answers to questions on notice. I remind all witnesses that, in giving evidence to the committee, they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. Officers and senators are familiar with the rules of the Senate governing estimates hearings. If you need assistance, the secretariat has copies of the rules.

The Senate by resolution in 1999 endorsed the following test of relevance of questions at estimates hearings: any questions going to the operations or financial positions of the departments and agencies which are seeking funds in the estimates are relevant questions for the purpose of estimates hearings. I remind officers that the Senate has resolved that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations from the parliament or its committees unless the parliament has expressly provided otherwise. The Senate has also resolved that an officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted.

I particularly draw the attention of witnesses to an order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised:

The extract read as follows—

Public interest immunity claims

That the Senate—

(a) notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate;

(b) reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate;

(c) orders that the following operate as an order of continuing effect:

(1) If:

(a) a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and

(b) an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee, the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.

(2) If, after receiving the officer's statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.

(3) If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.

(4) A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.

(5) If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.

(6) A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.

(7) A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (1) or (4).

(8) If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3).

(d) requires the Procedure Committee to review the operation of this order and report to the Senate by 20 August 2009.

(13 May 2009 J.1941)

(Extract, Senate Standing Orders)

CHAIR: Witnesses are specifically reminded that a statement that information or a document is confidential or consists of advice to government is not a statement which meets the requirements of the 2009 order. Instead, witnesses are required to provide some specific indication of the harm to the public interest that could result from the disclosure of the information or the document.

Senators, departments and agencies have been provided with advice on the arrangements in place to ensure the budget estimates hearings are conducted in a COVID-safe environment. This guidance is available from the secretariat. The committee appreciates the cooperation of all attendees in adhering to these arrangements. In order to comply with social distancing requirements, senators and the secretariat may use their electronic devices to communicate with one another in the hearing. We ask for witnesses' forbearance to do so and apologise in advance for any discourtesy.