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Legal and Constitutional Affairs Legislation Committee
21/10/2020
Estimates
ATTORNEY-GENERAL'S PORTFOLIO

ATTORNEY-GENERAL'S PORTFOLIO

In A ttendance

Senator Duniam, Assistant Minister for Forestry and Fisheries, Assistant Minister for Regional Tourism

Senator Seselja, Assistant Minister for Finance, Charities and Electoral Matters

Attorney -General's Department Executive

Mr Chris Moraitis PSM, Secretary

Ms Sarah Chidgey, Deputy Secretary, Integrity and International Group

Mr Iain Anderson, Deputy Secretary, Legal Services and Families

Fam ilies and Legal System Division

Mr Cameron Gifford, First Assistant Secretary

Ms Alexandra Mathews, Assistant Secretary, Family Safety Branch

Ms Dianne Orr, Acting Assistant Secretary, Family Law Branch

Dr Albin Smrdel, Assistant Secretary, Legal System Branch

Legal Services Policy Division

Ms Tamsyn Harvey, First Assistant Secretary

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

Ms Kathleen Denley, Assistant Secretary, Native Title Unit

Ms Alana Fraser, Acting Assistant Secretary, Native Title Unit

Ms Ariane Hermann, Assistant Secretary, Legal Assistance Branch

Ms Samantha Byng, Assistant Secretary, Royal Commissions Branch

Mr David Lewis, General Counsel (Constitutional)

Ms Alana Fraser, Acting Assistant Secretary

Mr Jeff Murphy, Acting Special Adviser

Integrity and Security Division

Mr Andrew Walter, First Assistant Secretary

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

Ms Julia Galluccio, Assistant Secretary, Information Law and Intelligence Review Response Taskforce

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

Ms Autumn O'Keeffe, Assistant Secretary, Transparency Frameworks Branch

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

International Division

Ms Sue Robertson, First Assistant Secretary

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

Ms Helen Daniels, Chief Operating Officer

Ms Catherine Fitch, Assistant Secretary, Strategy and Governance Branch

Ms Michelle Norris, Assistant Secretary, Human Resources

Corporate Services Division

Mr Stephen Lutze, Chief Finance Officer

Mr Trevor Kennedy, Assistant Secretary, Financial Services Branch

Mr Daryl Adam, Assistant Secretary, Business Operations

Information Division

Mr Stephen Andrew, Chief Information Officer

Mr Michael Harrison, Deputy Chief Information Officer

Australian Government Solicitor

Mr Michael Kingston, Australian Government Solicitor [by video link]

Ms Cathy Reid PSM, Deputy Chief Counsel, Commercial [by video link]

Defence and Vetera n Suicide Prevention Commission

Ms Peta Langeveld, Assistant Secretary, National Commissioner for Defence and Veteran Suicide Prevention

Ms Toni Pirani, Official Secretary, National Commissioner for Defence and Veteran Suicide Prevention

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]

Royal Commission into Aged Care Quality and Safety

Dr James Popple, Official Secretary [by video link]

Administrative Appeals Tribunal

Ms Sian Leathem, Registrar [by video link]

Mr Chris Matthies, Chief Legal Officer [by video link]

Ms Jacqueline Fredman, Chief Corporate Officer [by video link]

Ms Sobet Haddad, Senior Reviewer, Immigration Assessment Authority [by video link]

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

Australian Commissio n for Law Enforcement Integrity

Ms Jaala Hinchcliffe, Integrity Commissioner

Ms Lucinda Atkinson, Executive Director, Corporate Services and Governance Branch

Mr Justin Bathurst, Acting Executive Director

Australian Financial Security Auth ority

Mr Hamish McCormick, Chief Executive, Inspector-General, Bankruptcy and Registrar of Personal Property Securities

Mr Gavin McCosker, Deputy Chief Executive

Ms Joanna Stone, Chief Operating Officer, Chief Financial Officer

Mr Andrew Sellars, General Counsel

Mr Peter Edwards, National Manager, Client and Digital Services [by video link]

Mr David Bergman, National Manger, Insolvency and Trustee Services [by video link]

Mr Paul Shaw, National Manager, Regulation and Enforcement [by video link]

Aus tralian Human Rights Commission

Emeritus Professor Rosalind Croucher AM, President [by video link]

Ms Padma Raman PSM, Chief Executive [by video link]

The Hon. Dr Kay Patterson AO, Age Discrimination Commissioner [by video link]

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

Mr Edward Santow, Human Rights Commissioner [by video link]

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

Ms Kate Jenkins, Sex Discrimination Commissioner [by video link]

Mr Chin Tan, Race Discrimination Officer [by video link]

Commonwealth Director of Public Prosecutions

Ms Sarah McNaughton, Commonwealth Director [by video link]

Ms Andrea Pavleka, Commonwealth Solicitor [by video link]

Ms Sabeena Oberoi, Chief Corporate Officer

Mr James Carter, Deputy Director, International Assistance and Specialist Agencies, Revenue and Benefits Fraud

Mr Steven Burggraaff, Chief Financial Officer

Offic e of the Commonwealth Ombudsman

Mr Michael Manthorpe PSM, Ombudsman

Ms Penny McKay, Deputy Ombudsman

Mr Paul Pfitzner, Senior Assistant Ombudsman

Ms Lisa Collett, Chief Operating Officer

High Court of Australia

Ms Philippa Lynch, Chief Executive and Principal Registrar

Mr Adrian Brocklehurst, Manager Corporate Services

Independent National Security Legislation Monitor

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

Office of the Inspector-Gener al of Intelligence and Security

Mr Jake Blight, Acting Inspector-General of Intelligence and Security

Ms Bronwyn Notzon-Glenn, Acting Deputy Inspector-General of Intelligence and Security

Mr Steve McFarlane, Assistant Inspector-General Intelligence Oversight and Complaints

Mr Bradley Fallen, Acting Assistant Inspector-General Intelligence Oversight, Enabling Services and Legal Branch

National Archives of Australia

Mr David Fricker, Director-General

Ms Ruth Fenwick, Assistant Director-General, Corporate Services Branch

Mr Steven Fox, Assistant Director-General, Collection Management Branch

Office of the Australian Information Commissioner

Ms Angelene Falk, Australian Information Commissioner and Privacy Commissioner [by video link]

Ms Elizabeth Hampton, Deputy Commissioner [by video link]

Committee met at 09:04

CHAIR ( Senator Stoker ): Good morning, everybody. 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 2020-21 for the portfolios of Home Affairs and the Attorney-General's, 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 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 evidence in public session, and that includes 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 the evidence given to a committee and such action may be treated by the Senate as a contempt. It's 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, but, 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, which will be incorporated in the Hansard.

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.

Senators, departments and agencies have been provided with advice on the arrangements that are in place to ensure that the budget estimates process this year are conducted in a COVID-safe environment. This guidance is also 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 during the hearing. We ask for witnesses' forbearance to do so and apologise in advance for any discourtesy that may be apparent as a result.