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Legal and Constitutional Affairs Legislation Committee


In Attendance

Senator Cash, Minister for Employment, Skills, Small and Family Business

Department of Home Affairs

Mr Michael Pezzullo AO, Secretary, Department of Home Affairs

Mr Marc Ablong PSM, Deputy Secretary, National Resilience and Cyber Security

Ms Cheryl-anne Moy, Deputy Secretary, Chief Operating Officer

Mr Andrew Kefford PSM, Deputy Secretary, Immigration and Settlement Services Group

Mr Paul Grigson, Deputy Secretary, Social Cohesion and Citizenship

Ms Cath Patterson, Deputy Secretary, Strategy and Law Enforcement

Ms Pip de Veau, Group Manager, Legal Division / General Counsel

Mr Michael Milford AM, Group Manager, Technology and Major Capability

Mr David Bachi, Acting Director General, Emergency Management Australia

Mr Steve Biddle, Acting First Assistant Secretary, Refugee Humanitarian and Settlement Division

Ms Stephanie Cargill, First Assistant Secretary, Finance Division / Chief Finance Officer

Mr Pablo Carpay, First Assistant Secretary, People and Culture Division

Mr Andrew Chandler, First Assistant Secretary, Global Business and Talent Attraction Taskforce

Mr Anthony Coles, First Assistant Secretary, Law Enforcement Policy Division

Dr Steven Davies, First Assistant Secretary, Data Division / Chief Data Officer

Mr Richard Feakes, First Assistant Secretary, CT Coordination Centre

Ms Peta Dunn, First Assistant Secretary, Immigration Programs Division

Mr Samuel Grunhard, First Assistant Secretary, Critical Infrastructure Security Division

Mr Hamish Hansford, First Assistant Secretary, Cyber, Digital and Technology Policy

Mr Stephen Hayward, First Assistant Secretary, Health Services Division

Mr Neil Hawkins, Deputy Coordinator, National Counter Foreign Interference

Ms Justine Jones, Acting First Assistant Secretary, Immigration Integrity and Community Protection Division

Mr Richard Johnson, First Assistant Secretary, Social Cohesion

Mr Angus Kirkwood, First Assistant Secretary, Strategy Division

Ms Alison Larkins, Coordinator-General for Migrant Services

Ms Anne Leo, First Assistant Secretary, Citizenship

Ms Robyn Miller, Acting First Assistant Secretary, People and Culture Division

Ms Lee-anne Monterosso, First Assistant Secretary, Procurement, Property and Contracts

Mr David Nockels, First Assistant Secretary, Identity and Biometrics

Mr Andrew Rose, Acting First Assistant Secretary, International Policy Division

Ms Leanne Smith, First Assistant Secretary, Service Delivery and Transformation Division

Ms Ciara Spencer, Acting First Assistant Secretary, Aviation and Maritime Security Division

Mr Michael Willard, First Assistant Secretary, Immigration and Community Protection Policy Division

Mr Ben Wright, First Assistant Secretary, Integrity, Security and Assurance

Mr Radi Kovacevic, Chief Information Officer

Mr Sean Hugo, Assistant Secretary, Cyber Risk Services

Ms Leanne Loan, Assistant Secretary, Maritime, Training and Card Security

Mr Mathew Smorhun, Senior Assistant Secretary, Major Capability Division

Ms Alana Sullivan, Senior Assistant Secretary, Deputy Commander Regional Processing and Resettlement

Mr Andrew Warnes, Assistant Secretary, National Security Policy

Australian Border Force

Mr Michael Outram APM, Australian Border Force Commissioner

Ms Justine Saunders APM, Deputy Commissioner, Operations

Ms Kaylene Zakharoff, Acting Deputy Commissioner, Support

Rear Admiral Lee Goddard, Commander, Maritime Border Command; Commander, Joint Agency Task Force, Operation Sovereign Borders

Mr Phil Brezzo, Assistant Commissioner, Strategic Border Command

Ms Lauren Monks, Acting Assistant Commissioner, Strategic Border Command

Mr Kingsley Woodford-Smith, Assistant Commissioner, Close Support Command

Ms Erin Dale, Assistant Commissioner, Port Operations Command

Ms Kylie Rendina, Assistant Commissioner, Border Patrol and Coordination Command

Ms Sharon Huey, Assistant Commissioner, Operational Practices Command

Mr Ben Biddington, Acting Assistant Commissioner, Enforcement Command

Dr Bradley Armstrong PSM, Group Manager, Customs

Mr Graeme Grosse, Acting Group Manager, Immigration Detention

Ms Alice Stanley, Assistant Secretary, Traveller Policy and Industry Engagement

Australian Criminal Intelligence Commission/ Australian Institute of Criminology

Mr Michael Phelan, Chief Executive Officer

Dr Rick Brown, Deputy Director, Australian Institute of Criminology

Mr Matt Rippon, Executive Director, Intelligence Operations

Ms Yvette Whitaker, Chief Financial Officer

Australian Federal Police

Mr Reece Kershaw, Commissioner

Mr Brett Pointing, Deputy Commissioner, Operations

Mr Ian McCartney, Deputy Commissioner, Investigations

Ms Debbie Platz, Acting Chief Operating Officer

Australian Security Intelligence Organisation

Mr Mike Burgess, Director-General

Ms Hazel Bennett, Deputy Director-General

Australian Transaction Reports and Analysis Centre

Ms Nicole Rose PSM, AUSTRAC Chief Executive Officer

Mr Chris Collett, Deputy Chief Executive Office, Intelligence

Mr Peter Soros, Deputy Chief Executive Officer, Regulation, Education and Policy

Dr John Moss, Deputy Chief Executive Officer, Capability and Strategy

Dr Nathan Newman, National Manager, Regulatory Operations

Australian Institute for Disaster Resilience

Ms Amanda Leck, Executive Director [by video link]

Mr Stuart Ellis, Chief Executive Officer, Australasian Fire and Emergency Service Authorities Council [by video link]

Committee met at 09:02

CHAIR ( Senator Stoker ): Good morning. I declare opening this hearing of the Senate Legal and Constitutional Affairs Legislation Committee for the budget estimates. The Senate referred to the committee the particulars of proposed expenditure for 2020-21 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 Home Affairs Portfolio. The committee has set Wednesday 16 December 2020 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 secretariat by 5 pm on Friday 6 November 2020. Under standing order 26 the committee must take all in evidence 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's 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 for 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 purposes 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 that 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 document.