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Legal and Constitutional Affairs Legislation Committee
Attorney-General's Department

Attorney-General's Department


CHAIR: We now move onto outcome 1 in the Attorney-General's Department, group 1 in corporate cross portfolio general, and royal commissions, groups 1 and 2. If anyone from Senator Xenophon's office is listening, he is listed as having some questions on this, so I alert him that we are starting on that.

Senator Brandis: Mr Chairman, can I make an inquiry through you?


Senator Brandis: The Family Court and the Federal Circuit Court are interstate agencies. They are not listed until 10.30 pm. We are now at 2.20 pm, commencing where we were meant to be in the program at 11.45 am, so we are running a good three hours late. Is there any realistic possibility that the Family Court and the Federal Circuit Court are going to be reached because, if not, it might not be too late to place a phone call to them to tell them that they need not journey to Canberra?

CHAIR: Senator Brandis, I raised this in the beginning. Our advice was that they were not coming from interstate but were here, because we did attempt as a committee to have any interstate-travelling agencies come early.

Senator Brandis: It may be, unbeknownst to me, that their CEOs happen to be in Canberra today anyway. This is not where they would ordinarily work.

CHAIR: I am sorry that has happened. Senator Brandis, it is in the lap of the gods as you know. I am very reluctant to have any public servants sitting around for days when we do not get to them as in this committee last night. We had two programs that had public servants sitting around all night and at half past 10 the committee decided it did not have any questions in spite of some senators saying they did.

Senator Brandis: It just seems to me to be a bit odd, Mr Chairman, that we spend hours on end inquiring into relatively small items of wastage, yet the committee, at least the Labor senators, are prepared to waste thousands of dollars in accommodation and air fares where, if they could stick to the program, that money would not be wasted.

CHAIR: Senator, I have a personal opinion on that but, as you know, these rules in the Senate are organised by the majority in the Senate and it is not the government. I can only go along and do what I am told to do. If it becomes obvious as we go, the committee may make a decision that they do not have to stay around.

Senator Brandis: All I am suggesting is that, given that they are coming from Sydney or Melbourne, I think, and they would have known that they are not required before 10.30 pm, I would expect that they would have made arrangements to travel late this afternoon, would it be possible, if we could get some cooperation from the opposition, to avoid both the inconvenience to them and the cost to the taxpayer of unnecessary travel and overnight accommodation if they are not going to be reached.

CHAIR: It is not only the opposition, as I see that Senator Waters has indicated that she wants questions of the Family Court. I am afraid the Senate has provided these rules, Senator Brandis. I am sorry. We did think we were getting interstate agencies earlier, which is why we went on with the Human Rights Commission for some time in the morning when I would have preferred them to be last. I can only apologise for that. I am afraid that we just have to carry on. If it becomes obvious later, we may be able to send them home from the airport or something, but there is not much I can do, Senator Brandis. The AFP is another one, and I really do not want them sitting around here if we have no chance of getting to them.

Senator Brandis: They are a Canberra based agency of course.

Senator JACINTA COLLINS: I would like to understand the impact on the operations of the department of the amendments to the administrative arrangements. Most of them seem to make sense to me—with respect to the announced changes regarding censorship, copyright and the arts. One that I would like you to explain to me—you may be able to do so fairly easily—is the Circuit Layouts Act 1989. What does that relate to?

Senator Brandis: I think that that is an intellectual property statute. Consistently with the Prime Minister's view that intellectual property issues lie more naturally with the communications department, that act will have been transferred to that department for that reason.

Senator JACINTA COLLINS: So it is part of the set which goes with copyright, censorship—those issues.

Senator Brandis: Not censorship, because censorship is not an intellectual property issue. But copyright certainly is.

Senator JACINTA COLLINS: But censorship went to Communications, didn't it?

Mr Moraitis : That is right. The branch went to Communications.

Senator JACINTA COLLINS: Do you have a new organisational structure?

Mr Moraitis : Not yet. We are just working through it. We are just finalising the MOG process now—machinery-of-government changes. Once that is bedded down, hopefully this week, we will proceed to an organisational chart that spells it out. But it is pretty straightforward. You take out the arts, which is a division; the Classification Branch; and some elements of copyright, which is essentially a section of a branch. So if you had the old organisational chart you could just cross those out.

Senator JACINTA COLLINS: Is that in the old annual report?

Mr Moraitis : It should be.

Senator JACINTA COLLINS: It sounds strange to call it the old one; we got it less than a week ago.

Mr Moraitis : It is the new one.

Senator JACINTA COLLINS: Page 8 perhaps?

Mr Moraitis : That is more about programs rather than an org. chart as such, but it gives you an idea of it. For example, under Civil Justice and Legal Services Group, which used to be David Fredericks's, you would take out Ministry for the Arts—that has moved out. Under the Civil Law Division, in the first box, one of the branches would be the Classification Branch, which is based in Sydney; that has moved. So inside that Civil Law Division headed by Matt Minogue there were a couple of branches; one of those—classification—has gone. Copyright was a section of a branch in the Civil Law Division as well. So a branch and a section from the first box, Civil Law Division, have gone to Communications; and the whole Ministry of the Arts, which is the fifth box, has moved to Communications as well. That is essentially the organisational changes. And there could be some consequential changes to do with corporate support staff which are incidental to that. I do not think we would be across that.

Senator JACINTA COLLINS: Could I have, on notice, a copy of the organisational chart once you finalise it.

Mr Moraitis : Yes, of course.

Senator JACINTA COLLINS: Senator Brandis, on the issue of the appointment of the Sex Discrimination Commissioner, I asked you earlier today:

Do you intend to draw again upon the procedure provided in provision 2.6.6 of Merit and Transparency: Merit-based selection of APS agency heads and APS statutory office holders.

On page 2 of the Hansard, I again asked:

Do you intend to draw on that provision?—

when I had pointed it out, and you said, 'Yes'.

Later on, at the bottom of that page, you say:

No, I did not say that.

I am seeking to clarify exactly what your position is.

Senator Brandis: My position is, as I have said—and you have misrepresented me again:

I am merely telling you that the person who is chosen will be an eminent person.

Elsewhere, I said:

You can be reassured that the choice will be of an eminent person.

Elsewhere, I said:

The person who will be appointed, you may be reassured, will be an eminent person.

Senator JACINTA COLLINS: With respect, Senator Brandis, you are playing with words here.

Senator Brandis: I am just reading you a direct speech from the Hansard.

Senator JACINTA COLLINS: I clearly asked you—and this is directly from the Hansard—if you go down to my question, which is on page 2, to my third comment:

Do you intend to draw on that provision?

I had just provided you with provision 2.6.6, which is the one which sets out the special circumstances, and you answered, 'Yes'.

Senator Brandis: No, you did not, Senator. You provided me with attachment B, which I am holding in my hand at the moment—Commonwealth statutory appointments policy—which sets out, at length, the merit-based and transparent process, which includes section 2.6.6.

Senator JACINTA COLLINS: Yes—and I was referring to section 2.6.6, as you will see on page 1 of the Hansard, where my question was—

Senator Brandis: No, Senator. I am sorry to be pedantic, but the Hansard

Senator JACINTA COLLINS: at the bottom:

Do you intend to draw again upon the procedure provided in provision 2.6.6 …

You cannot weasel your way out of that, Senator Brandis.

Senator Brandis: I asked you to provide me with a copy of what you were referring to.


Senator Brandis: You did.


Senator Brandis: And it is this document: Commonwealth statutory appointments policy.


Senator Brandis: You asked me whether I intended to rely on that document and those provisions, and I said I would.

Senator JACINTA COLLINS: I said:

I will take you to it. Would you like me to read it in full?

You said:

No, please just pass it to me so I can read it.

I said:

Yes, I can pass it to you.

And you said:

Yes, I am familiar with it.

All the time, from page 1, it is very clear that I am talking about provision 2.6.6.

Senator Brandis: Yes, Senator Collins. But I am afraid the document you handed me was not provision 2.6.6. It was a fuller document, which includes provision 2.6.6, which sets out, as I interpret it, the entire statutory policy for appointments, including, but not limited to, the provisions of 2.6.6. I think it is a very narrow argument, by the way.

Senator JACINTA COLLINS: I took you to 2.66. I was very clear, on page 1, that it was 2.66 I was asking you about.

Senator Brandis: Senator Collins, I think we have anatomised the area of our difference. Now, what is your question?

Senator JACINTA COLLINS: My question is very clear: do you intend to draw upon section 2.66?

Senator Brandis: I intend to comply with the statutory appointments policy as contained in the document you provided to me.

Senator JACINTA COLLINS: So now you have gone one step further. You have gone back from contradicting yourself to a non-answer. This is just ridiculous.

Senator Brandis: Yes, Senator Collins.

Senator CANAVAN: That is your interpretation.

Senator JACINTA COLLINS: Yes, it is.

Senator Brandis: Your observation is noted, Senator Collins.

Senator CANAVAN: Clearly, the minister has clarified it. I have read the transcript, just like you have. I must say that you could take either of those interpretations from what was there. Obviously you thought you were talking about a particular provision; the minister thought you were talking about all provisions.

Senator JACINTA COLLINS: It is recorded.

Senator CANAVAN: There is a disagreement. I am not a lawyer and I am not used to being on this committee. This point may be of some value as a school debating exercise, but not in a discussion of matters of consequence affecting this nation. I think we should move on and agree to disagree.

Senator Brandis: The only lawyer on this committee, as far as I am aware, Senator Canavan, is the distinguished chairman.

Senator CANAVAN: I take it back, then. I take back that slur.

CHAIR: Thank you, Minister. Senator Collins, can you ask a question, please—and we won't have the debate.

Senator JACINTA COLLINS: I do not have any debate. The debate is all coming from the minister.

CHAIR: You just ask the question, and I will pay more attention.

Senator JACINTA COLLINS: Clearly the minister is seeking to avoid being accountable about this appointment process.

CHAIR: No commentary, please. Let's have a question.

Senator JACINTA COLLINS: I will move on to my next subject area, which is the updating of the department's correspondence handling procedures. Mr Moraitis, can you give the committee an update, please.

Mr Moraitis : I assume you are talking about how we handle correspondence searches, or are you talking about correspondence handling in general?

Senator JACINTA COLLINS: It may be 'in general'. But, in part, it is an update on the undertakings that the department gave the references committee in relation to the Man Monis letter inquiry.

Mr Moraitis : We have taken on board those recommendations. I have consulted with AGS, and they have provided both input into the first set of protocol guidelines for searching and retrieving documents and also undertaken to provide us with some training staff. We have also promulgated those to staff. I discussed them with my executive a few weeks ago and most recently with the staff in general in my monthly address to staff about issues of operation and administration where I referred them all to the updated version. Ms Chidgey has been in charge of that. I can ask her to give you more detail on that as well as the general process for dealing with correspondence. But Mr Fredericks, who is now our new chief operating officer, will go first.

Mr Fredericks : I think the starting point for consideration by the Senate was in fact the report that the Senate committee presented in relation to AGD's handling of the Monis matter. It made a number of recommendations—

Senator JACINTA COLLINS: Can I just stop you there, Mr Fredericks. I deliberately do not want to touch on the response to the recommendations per se, because I think that is still an outstanding matter. A range of issues were covered during the course of the inquiry, but I am simply seeking an update on those assurances rather than all of the recommendations per se at this point in time. To the extent that you are happy to comment beyond that, that is fine. But I am not actually seeking that.

Mr Fredericks : The Senate reported, as you know, on 16 September. We, as a department, certainly took that report very seriously—

CHAIR: You took the minority report very seriously.

Mr Fredericks : Correct—so much so that we referred that report to our own executive board on 23 September. We wanted to have some high-level consideration of that report and those recommendations. As a department we have been working our way through those recommendations to see what we can properly implement over various time frames.

The important one that you are aware of, and that the secretary was referring to, is the protocol which the department has introduced in order to provide authority of advice to ourselves, in effect, about how we should go about searching for documents in the sort of circumstances that we were presented with in the Monis case. As the secretary said, we produced the first version of that protocol—I think it was back in about late July—very soon after the events that you are describing. In many ways that was our immediate reaction to that. But the secretary took the view that one of the benefits of consolidation with AGS was that AGS would be available to provide further advice on that. Ironically, in the end, it was a recommendation of the Senate that we should do that.

For those two reasons, we had the AGS take a thorough look at our first version of the protocol. As result of that we produced what I think is a further and better version of that protocol. It was officially launched within the department on 30 September. In accordance with the advice of the recommendation of the Senate, we have used a number of means by which to bring that protocol to the attention of our staff and ingrain it in the culture of the department. As the secretary has said, he has, in an all-staff address, emphasised the importance of that protocol to staff. I, as the chief operating officer, have, both in an email and in a monthly newsletter that I put out, reiterated the importance of that protocol for the department, and we have discussed it at both our executive board and our meeting of the senior management committee, which is effectively our next level of management structure. So, yes.

Senator JACINTA COLLINS: Is that available, by the way?

Mr Fredericks : It is on our intranet, and it is certainly something that we could provide.

Mr Moraitis : We could provide that.

Senator JACINTA COLLINS: Thank you.

Mr Moraitis : I should also add that we are also undertaking some training in the next few weeks that will commence an ongoing process of training and familiarising staff in a more formalised way, as well as an online version of training as well.

Senator JACINTA COLLINS: Thank you.

Mr Fredericks : It is another advantage of consolidation. So AGS will be providing that training, because they have very good experience in that. So in many ways that has been the real focus of our efforts to date. I should also note that the Senate, in one of its recommendations, also suggested that it would be useful, particularly for the senior executive of the department, to have some further training in parliamentary accountability issues. We have opened up a discussion, I believe, with the Senate itself in order to secure that training, so we will follow that recommendation through. I should say we have also taken advantage of really informing ourselves, in the run-up to these estimates hearings, about the importance of those accountability issues as well. So it has been a useful opportunity, really, for us, under the secretary's leadership, to reinforce the importance of those accountability issues.

Mr Moraitis : Could I also add something, Senator. I do not know if you recall that I said I would further consider the issue about the nature of the correspondence and awareness of terminology and stuff like the caliphate and that, and I have also asked Ms Chidgey and Mr Fredericks to see what we can do in terms of ongoing awareness raising for staff who deal with that sort of issue, just to have a knowledge of the culture and other aspects of that sort of thing and draw on the experience of our colleagues in other portfolio agencies that can come in and brief staff—because obviously there is a lot of turnover in staff over a period of time—so they are familiar with those sorts of points in that respect.

Senator JACINTA COLLINS: That covers, in part, some of the changes in resourcing or focus, I suppose, that we have canvassed there.

Mr Moraitis : Certainly, yes. Obviously, with the changes that are going on now with machinery of government and movement of people, we also have a functional efficiency review that, like all departments, we are undertaking. When that is finalised and bedded down, we will also look at our overall resourcing to meet government's priorities, and that will be part of that, taking into account the obvious importance of national security.

Senator JACINTA COLLINS: Okay. I think my time has concluded. There are a couple of issues that hopefully will not take too long in this area and that I will come back to, by the looks of it.

CHAIR: Yes, we can come back to it. I now go to the government side, but my colleagues have indicated that Senator Heffernan can take their spot for their 15 minutes, or any part of it, as he is involved in other committees as well. Senator Heffernan, over to you.

Senator HEFFERNAN: Thank you, Mr Chairman. Mr Attorney-General, in recent months I have put a proposition to the royal commission into the institutional treatment of children—and I might say at the outset I think that commission, under Justice McClellan and others, including Mr Reed, who has just come to the table, are doing an excellent job, and it is pretty heartbreaking to see what has gone on and what has been denied for the last 50 years now being exposed as a reality. It has broken a lot of hearts.

I actually want to go to the proposition, Mr Attorney, that we should include in the terms of reference the institution of the law, and I have documents here, which the royal commission has seen, to justify that case—and in fact every Attorney-General from Attorney-General Ruddock till now has seen some of these documents. They are police documents, and they are very disturbing.

In the last 18 months I have put forward a case, which I initiated to remove a judge from the bench in New South Wales, Justice Garry Neilson—whose name in the trade is 'Gorilla in Black Lace'—and it succeeded to a point. He was hearing a case against a man who was found guilty of raping siblings and then faced new charges, and the judge would not allow the earlier charges into the court. During the hearing of the case and from the bench, he said to the court that he thought the law was out of date, that sex for siblings should be now legal and that it should not be illegal for men to have sex with children. I found that despicable and despising, and a display of complete bias of display from the bench.

I took it to the judicial commission—and I might say the New South Wales judicial commission is doing an excellent job and I have a good relationship with them and have had for some years. As you know, Mr Attorney, I have tried in vain to get a federal judicial commission. I think the treatment in the federal jurisdiction of children by some people in the jurisdiction of the family law court is disgusting and a disgrace, and some of those children are a tool for attorneys in representing cases.

CHAIR: Senator Heffernan, I do not think anyone would disagree with anything you have said, but this is estimates and I do try to insist that we ask questions of the committee while we have the—

Senator HEFFERNAN: Thank you very much for your assistance. I have produced a set of documents to the royal commission under an order to produce, which includes, disturbingly, documents that name in one document 28 people as alleged paedophiles and signed off by Gary Crooke QC, counsel assisting an earlier royal commission. It includes a whole lot of prominent people, and I think to protect the discretion of the royal commission I will not comment on what the commission thought except that they thought it was outside the terms of reference of the royal commission. Could you explain to me why that is so?

Senator Brandis: Senator Heffernan, the matters you have raised are of course very grave matters and I know, because we have discussed this over the years, what a very close interest you have taken in this issue. If I may say so, one of the reasons why the issue has become as prominent in the public mind as it is these days is in part to do with your advocacy of this cause. So I think your role in raising this issue deserves acknowledgment—not alone, of course, but your role, along with others, does deserve acknowledgment.

Senator Heffernan, you have done the right thing. If you believe that you have information, including documentary information, which ought to be brought to the attention of the royal commission—and the royal commission has a process for dealing with complaints and other information brought to its attention and placed into its hands by citizens, including prominent citizens such as you— then it is for the royal commission to judge whether, by reference to its terms of reference which of course define its jurisdiction, that information is something that it should or indeed is capable of inquiring further into.

I am not possessed of the documents that you have referred to. I am not in a position, obviously, to second-guess any decision by the royal commission about the relevance of documents placed into its hands as determined by its terms of reference; however, I think, Senator, we should respect any decision of the royal commission about the ambit and scope of its terms of reference and any decision therefore in relation to whether or not particular evidence can be received by it inquiring in conformity with those terms of reference.

Senator HEFFERNAN: Thank you very much for that. One of my problems is that we have in Australia—I mean it is like the denial of the priests and the altar boys to make a cheap comparison for 50 years—sadly, a compromise at the highest of levels: there is a former Prime Minister on this list, and it is a police document. We have a compromise similar to the compromise demonstrated by 60 Minutes in recent times in the UK. When I approached 60 Minutes and said, 'Why in God's name did you have to go to the UK to do that,' they said because no-one in the UK would do it.

Can I just say to the children that have been abused, to the parents and the loving mothers—quite often more than the fathers—who go to places like divorce courts: lawyers use the tool of abuse in the divorce courts. The divorce courts should deal with, in my view, the break-up of the family and its assets et cetera. It should not and is not qualified to deal with abuse that is alleged. That should be a separate entity and it is not.

I just want to put everyone on notice—

Senator Brandis: So you are talking about the abuse of children here?

Senator HEFFERNAN: Family law court judges demonstrate quite regularly that they are not capable of dealing with that phenomenon.

Senator Brandis: Senator Heffernan, can I tell you what the government is doing about this particular issue of allegations of child abuse that arise in the family law jurisdiction of either the Federal Court and the Federal Circuit Court. What has been apparent for quite a while now—and I think this bears on your point—is that there is a significant overlap between issues that might arise in proceedings for termination of marriage and the Family Court or the Federal Circuit Court and issues that might arise in state children's courts, however so-called. In some states, they are called children's courts; in other states, they have got other names. So there is a state jurisdiction that deals specifically with children's cases and then there is the federal family law jurisdiction that deals primarily with the breakdown of marriages and consequential orders in relation to children as well as in relation to assets. Quite often, the same issues arise in family law proceedings as arise in state children's court proceedings.

It is for that reason that last year I commissioned the Family Law Council to examine this matter, this issue of jurisdictional overlap, and Professor Helen Rhoades has done a study of this which the government is considering with a view to trying to ensure that the interests of the child are not compromised by, as it were, falling between the cracks of two different jurisdictions: the federal family law jurisdiction and the state children's protective jurisdiction, where we are dealing with, essentially, the same set of facts.

Senator HEFFERNAN: To assist me—and thank you very much, Mr Attorney, for that—in the case of the Family Court, is custody of children determined by the Family Court?

Senator Brandis: Yes—it is usually determined now by arrangements entered into between the parents, which are sanctioned by orders of the court. Senator, you should be aware that, when it comes to matters arising under the Family Law Act, the vast majority of those matters—something approaching 90 per cent of them—are dealt with not by the Family Court but by the family law division of the Federal Circuit Court.

Senator HEFFERNAN: That goes to my point that the custody battle often uses the legal tool of one partner abusing the other—whether that is true or false—and in many cases it is false. And thank very much for your assistance.

Senator Brandis: There are provisions, of course, in the Family Law Act which do deal with the making of false allegations—which is of course, apart from anything else, perjury if made under oath—but also may have consequences in terms of costs and other adverse consequences for a party maliciously making false allegations.

Senator HEFFERNAN: I deal with lots of people—because they know I will try to help—who have had their lives ruined because the law out smarts them in the Family Court. To make the point: I absolutely believe that, in many cases—and all human endeavour has failure, and none more spectacularly than me—it is often not these people's secrets. Obviously, these documents are very disturbing. They were delivered to me by a police agency some time ago because no-one seems to want to deal with them. It is often—

Senator Brandis: Senator Heffernan, I understand that you have put the documents to which you refer into the hands of police.

Senator HEFFERNAN: As Mr Reed knows—and I thank Mr Reed; you are doing an excellent job, as is the royal commission—this folder actually came back hand delivered. Every Attorney-General bar you—you were on that committee when I tried to get the argument up for a federal judicial commission—has seen some of these documents. Some of them did not read them; some of them returned them. Robert McClelland tried to do something about some of them. It is not so much the secret that is the problem. It is when a group of people, such as the 28 people on this page, keep each other's secrets that the institution—going back to my point about the institution—becomes compromised. On this list, there are some spectacular examples of that, with people involved in hearing court cases people—anyhow, I will not go through that.

For the thousands and thousands of people in Australia—and the royal commission, to its credit, is demonstrating the disgusting culture of some of our institutions—I just appeal for you to give consideration to cleaning up this act. The Wood royal commission, as you know, Attorney-General, was about to explore—and it is in the Hansard, so it is no great secret—who the legal fraternity people were that used to attend Costello's the 'boy brothel' club in Kellett Street, Kings Cross. I actually have the list here. A lot of them are still practising. But the judge of the day of the royal commission decided it was a no-go zone. Paddy Bergin, counsel assisting at the time, said, 'We will rise for morning tea,' and they never went back to it. I did ask the commissioner why. He said he would deny it if ever I mentioned it. I think it is time to mention it in view of the good work of the royal commission. He said, 'We've decided not to revisit that issue because the public would lose confidence in the judiciary.'

Like with the churches and our other institutions, who are now facing up to the truth, I think it is time that the institution of the law face reality. There are a lot of good people in the law. The royal commission is doing an excellent job. I am absolutely blown away by their attitude, aptitude and the forensic tone they bring and their consideration of victims—many who can live through this and many who cannot, and suicide, et cetera. I think it is time that we gave consideration to cleaning up the act. You may like to revisit. I do not see how, given the evidence, given just the instance—and I have to say I got rid of another judge through the excellent work of the Judicial Commission in New South Wales a few years ago, without a murmur. He was a person who is in this list here as picking up young blokes in the toilets outside Marcellin College at Randwick. He heard a case in the Central West—I will not name the town—of a stepfather abusing a daughter. The judge closed the court—this is the judge that is in this here—found the person guilty, suppressed the names, gave a non-custodial sentence to the man and let him go back to the family home. Nothing else was done. I think it is a disgrace.

Senator Brandis: Can I just make a couple of points. This is a very sensitive area where we are treading now, but let me make a couple of points. First of all, thank you for your observations about the work of the Royal Commission into Institutional Responses to Child Sexual Abuse. The royal commission has the very strong support of the government. In fact, it was Mr Abbott, when he was opposition leader, who first called for this royal commission to be established and it has been very strongly supported by this government and its term has been extended and it has been given the resources it needs to do its important work. Secondly, of course, just because somebody's name appears on a list does not make them guilty—

Senator HEFFERNAN: I accept all that.

Senator Brandis: and I know you understand that, if there are serious allegations to be made against one or more people, then they should be put into the hands of the police and I know you have done that. Thirdly, let me make the point nobody is above the law. I do not comment on your general allegations, but of course nobody is above the law, nobody.

Senator HEFFERNAN: Can I just finally say one thing quickly.

CHAIR: We can come back to you later if you have other questions.

Senator HEFFERNAN: Okay. I think included in these documents—and I think it measures the issue, Mr Attorney, and I would hope people are listening and we give serious consideration to the victims of this process. When the police find it necessary to put a judge under surveillance, I think we have got to a point where we have a problem. And when that surveillance is dropped because of a lack of cooperation between the AFP and the New South Wales police, we have a problem. Thank you very much, Mr Chairman.

CHAIR: Thank you, Senator Heffernan. We can come back to you later if you have other questions, but we run this on a 15-minute cycle. The committee has resolved privately that we will take questions on notice for the Federal Court and the Family Court and so we specifically indicate that. I think the committee secretariat has let the Family Court know that. Anyhow, the committee has so resolved, and I acknowledge that both Senator Collins and Senator Waters have agreed to put their questions on notice. So the Federal and Family courts do not have to attend. We are hopeful that we will get to the Federal Police.

Senator BILYK: I want to ask some questions about the trade union royal commission.

Senator Brandis: You are talking about the Royal Commission into Trade Union Governance and Corruption—is that the one?

Senator BILYK: That is right. Specifically, I want to talk about Commissioner Heydon's claim he did not know anything about the Liberal Party fundraiser because he does not use email. I want to ask some questions about the fact that Commissioner Heydon claims that he does not use email or the internet. I am sure we will all remember how the trade union royal commission descended into high farce when it was revealed that Commissioner Heydon had agreed to appear as the star attraction at a Liberal Party fundraiser. Mr Heydon claimed he did not know anything about the fundraiser invitation—

Senator Brandis: Senator Bilyk! I am not going to allow you to make—

Senator BILYK: You just interrupt me, do you?

Senator Brandis: I will interrupt you because I am not going to countenance false claims being made—

Senator BILYK: I thought you did not countenance interruptions.

Senator Brandis: against a royal commissioner in relation to issues that have now been finally resolved. There was an application for Mr Heydon to disqualify himself made in the ordinary course of events by a series of parties before the royal commission. That application was disposed of by the royal commissioner. It was open to those parties to challenge the royal commissioner's dismissal of the application by proceedings in the Federal Court. They declined to do so—

Senator BILYK: They did not, but he can have his rant. He always rants. I do not mind.

Senator Brandis: and the matter is now at an end.

CHAIR: I think there is a point of order, and rightly so, in relation to that.

Senator BILYK: Mr Heydon did claim—

CHAIR: Senator Bilyk, could you—

Senator BILYK: Sorry, Chair, I thought you had finished.

CHAIR: Sorry?

Senator BILYK: I thought you had finished. You stopped.

CHAIR: I take the minister's intervention as a point of order, which I uphold. Perhaps if you could reword the question or move on to the next question, if you have a question.

Senator BILYK: Mr Heydon, claimed that he did not know anything about the invitation that had been emailed to him because, he said, 'It is notorious among the legal profession that I am incapable of sending or receiving emails.' I have to say that I did think this is a bit curious because in a question on notice that I had asked earlier—

CHAIR: What is your question?

Senator BILYK: I am getting to it, Chair. In a question I had asked in an earlier round of estimates, it was revealed that Mr Heydon has been provided an iPhone 5 smartphone at taxpayers' expense as part of his rather extravagant—if I can say—salary package. Why does Mr Heydon need an internet enabled smartphone if he does not use the internet or send and receive emails?

Senator CANAVAN: He might play Angry Birds.

Senator BILYK: He well may play Angry Birds. I doubt it though if he cannot send an email.

Senator CANAVAN: It is a lot easier than email.

Senator Brandis: I am informed by Ms Innes-Brown, the CEO, that Mr Heydon has not taken possession of and has in fact returned his iPhone because he does not use it.

Senator BILYK: Well, that is good!

Senator Brandis: And, Senator Bilyk, take caution in your tone. You are speaking to—

Senator BILYK: Ooh you are not going to threaten me again, are you, Minister?

Senator Brandis: You are speaking of a High Court judge—

Senator BILYK: You are not going to threaten me again, are you! You know what happened last time you threatened me.

Senator Brandis: You are speaking, Senator Bilyk, of a High Court judge!

Senator BILYK: And I am entitled to ask questions.

Senator Brandis: You are speaking of a person of absolutely stainless personal and professional integrity, and I, as the Attorney-General, will not stand by and hear this man's reputation—

Senator BILYK: Is this another threat like in question time?

Senator Brandis: slandered by someone like you. The matter is disposed of.

Senator BILYK: Ooh, like me? What do you mean?

Senator Brandis: The matter was raised by several parties before the royal commission.

Senator JACINTA COLLINS: I do not think the iPhone was.

Senator BILYK: I do not think the iPhone was, was it? I will check the transcript. I do not think the iPhone was.

Senator Brandis: The royal commissioner gave detailed reasons on the disqualification application. It was open to those parties to challenge that finding. They declined to do so.

Senator BILYK: That does not mean that I cannot ask questions.

Senator Brandis: The Senate dealt with the resolution from your side of politics, which failed. The royal commissioner is proceeding with his business, and the matter is now closed.

Senator BILYK: No. I can still ask questions, Minister.

CHAIR: Senator Bilyk, if you ask a question that can be answered and that is not an attack on a High Court judge, please go ahead.

Senator BILYK: I did not make any attack.

Senator Brandis: You did, Senator.

Senator BILYK: I did not! And once again, the transcript will show that.

CHAIR: Please ask the question.

Senator JACINTA COLLINS: Your tone was an attack, apparently.

Senator BILYK: Oh—my tone, as opposed to the arrogance of the tone on that side of the road.

CHAIR: Please ask a question.

Senator BILYK: You are just amazing!

CHAIR: Please ask a question or we will—

Senator BILYK: As my dad said, 'Education certainly is not the only thing that makes you wise and it certainly does not mean you've got manners', Minister. Why does Mr Heydon need an internet smartphone if he does not use the internet or send and receive emails? When did he give it back?

Ms Innes-Brown : Some months ago. He has never used it, and it was just sitting in his office, so we redirected that to another—

Senator BILYK: Can I get a date for when it was given back?

Ms Innes-Brown : Sorry?

Senator BILYK: In a previous round of estimates, on a question on notice, I was told he had that phone, so I would like to know the date he returned it.

Ms Innes-Brown : I would have to take that on notice.

Senator Brandis: We will take that on notice.

Senator BILYK: Are you also able to tell me how much money his phone bills have cost the taxpayer since he was appointed to the royal commission?

Senator CANAVAN: Less than Sam Dastyari's.

Senator BILYK: He is not appointed to the royal commission.

Senator CANAVAN: He is still getting paid by the taxpayer, we pay for it.

Senator Brandis: Senator Bilyk, you were just told by Ms Innes-Brown—I do think you were listening—that Mr Heydon has never used the phone and he returned it months ago.

Senator BILYK: Does he not have a phone whatsoever?

Ms Innes-Brown : Only a landline.

Senator BILYK: That is quite interesting. Does the department offer any training to royal commissioners to help them learn basic IT skills?

Senator Brandis: The Attorney-General's Department?

Senator BILYK: Yes.

Senator Brandis: The answer to your question is no. The commission has a secretariat, which is available to the royal commissioner for the purpose of supporting his work as royal commissioner. But the department itself does not do so, nor would one expect that it would. A royal commissioner is not a function of a department of government. In fact, the whole point of a royal commission is that it stands entirely independent of government.

Senator BILYK: Oh, you've finished? Sorry. Is basic IT competence then a selection criteria considered when appointing a royal commissioner?

Senator Brandis: No, it is not—

Senator BILYK: How embarrassing is that.

Senator Brandis: The criteria was prior eminence and integrity.

Senator BILYK: Mr Heydon has not been offered any remedial training since his embarrassing lack of IT skills was made public—is that correct?

Senator Brandis: Senator Bilyk, Mr Heydon was chosen, as I said, on the basis of his eminence as a High Court judge and his integrity, which is universally known, in a legal profession which he has graced for more than five decades. Senator, you seem to derive from the fact that it is not Mr Heydon's custom to use email and that—

Senator BILYK: You do not know what I derive, Minister.

Senator Brandis: some kind of negative inference about his competence should be drawn. Might I invite you—if you are capable of it—of reading his reason—

Senator BILYK: I have got under your skin already, haven't I?

Senator Brandis: on the disqualification application. And you, Senator Bilyk, I am sure, like anyone, would be very satisfied about the high level of competence of Mr Heydon, regardless of what mode of work practice he uses to write his judgements or communicate with others.

Senator BILYK: It is always a pleasure to sit this side and ask you questions, Minister.

Senator JACINTA COLLINS: I will go back to the discussion that I was having earlier—I think we got to the second of my points, which was around resourcing and national security area. Mr Moraitis indicated that part of the arrangements about the new administrative orders and MOG and others meant that was a factor that could be refreshed. Are there any particular outcomes in that space or is that still yet to be worked through?

Mr Moraitis : A functional efficiency review, which we are undertaking with an independent reviewer, will inform me and my executive team about how we should align our resources. In the immediate term, we are obviously making decisions as required in terms of resources. For example, last week we organised a conference in Old Parliament House of Commonwealth and state officials on CVE. I assigned some resources from other areas to assist for—


Mr Moraitis : The Counter Violent Extremism meeting.


Mr Moraitis : It was a case of organising a taskforce to assist the national security people to keep focussing on their core functions while that group could organise the meeting. We are doing that in the short term but also looking at resourcing long term. Mr Fredericks and I are already undertaking some mud map discussions about how we should organise things.

Senator JACINTA COLLINS: Another issue you touched on was the web publishing guidelines. Have you got an update for us there?

Mr Moraitis : Ms Chidgey could update us on what we now call the digital service standards design guide on ministerial content.

Ms Chidgey : We reviewed our procedures in relation to the application of the web guide. What we have done in relation to that is prepare a written guideline for the relevant staff in web publishing and the communications area to formalise the appropriate arrangement so that roles and responsibilities are clear for the application of that guideline.

Senator JACINTA COLLINS: And they will be applied before a matter is published rather than in the remedial?

Ms Chidgey : That is right.

Senator JACINTA COLLINS: So we will not need to save Senator Brandis from his excesses by applying the guidelines after the event. I think I only have one other outstanding issue that you may be able to shed some further light on, quite separately to waiting for a response to the recommendations. This was referred to in the opposition senators' report. It was that very final batch of material that gave us one further letter that had not been identified and had not been provided by AGD to the joint task force or the PM&C review. This, as it turns out, was the letter that Ms Jones was thinking of in the very first instance that informed her misadvice at the time. I think we can call it the McClelland letter. We asked whether that letter had been provided to the review, and the answer was no. We also asked, 'If no, what was the reasoning for this?' and we were told that it 'was not provided to the review as AGD did not have this letter'. Was there a particular reason that AGD did not have that letter?

Mr Moraitis : I cannot recall. I will have to take that on notice, unless Ms Chidgey recalls the details.

Senator JACINTA COLLINS: I am trying to understand whether it related to the fact that it was a former minister or whether it related to another issue with the search process or whether there was some other reason that it had not been provided.

Mr Moraitis : It was not in our possession, because it was from another agency.

Senator JACINTA COLLINS: My impression was that it was a letter to Mr McClelland when he was the minister but it was also copied to PM&C. It was eventually sourced via PM&C, but what still has not been explained is why it was not identified on what was essentially tab 1 as an AGD letter.

Mr Moraitis : I think Ms Chidgey has the answer to that.

Ms Chidgey : My understanding is that it was a letter that ASIO had provided to PM&C as part of the review.


Ms Chidgey : We ultimately did identify that we had a copy provided by ASIO on our files. It was not able to be identified in a search, because nowhere on that letter was the correspondent, Man Haron Monis, identified.

Mr Moraitis : That is, it was a generic letter.

Senator JACINTA COLLINS: A generic letter?

Mr Moraitis : It did not have his name on it.

Ms Chidgey : It did not have his name on it anywhere.

Senator JACINTA COLLINS: Okay. Am I correct that the one I am thinking of was a letter to Mr McClelland.

Ms Chidgey : That is right.

Senator JACINTA COLLINS: But it did not have an identifier that Man Monis was the correspondent?

Ms Chidgey : That is right.

Senator JACINTA COLLINS: I am bit confused here. How could that be?

Ms Chidgey : Man Haron Monis did not sign it or put his name on that letter anywhere. But an assessment had been made by another agency that he was the likely correspondent.

Senator JACINTA COLLINS: So when you searched it was not found that way. Ms Jones had a recollection of it because she was aware of it from PM&C—PM&C/ASIO perhaps—but it was not identified in the AGD search, not because you did not have the letter but because the letter had not had Mr Man Monis's signature on it?

Ms Chidgey : That is right. It had no identifying features that the department would have connected it to this.

Mr Moraitis : To put it this way: it was an ex post facto identification of the source and then we were told what it was.

Senator JACINTA COLLINS: Okay. That has resolved what was essentially for me the final nibble in understanding how various failures had occurred. My next line of questioning relates to the trade union royal commission task force. Does the operation of this task force come within the A-G's portfolio?

Mr Moraitis : Sorry, which one was it?

Senator JACINTA COLLINS: It is the AFP task force attached to the royal commission.

Mr Moraitis : Oh, yes, I can—

Senator JACINTA COLLINS: I am not clear on whether I should be asking questions here or of the AFP.

Senator Brandis: I think you should ask them here, because—

Mr Moraitis : The AFP commander is here.

Senator Brandis: I think you should ask them here.

Senator JACINTA COLLINS: Okay. Has the A-G's Department issued any directions to the task force as to the way in which it is to operate, or the matters it is to investigate or not investigate? Essentially, what are the terms of reference?

Cmdr Ney : There have been no directions delivered from the Attorney-General's Department with regard to the way that we go about our business.

Senator JACINTA COLLINS: So what directions do you have, if any?

Cmdr Ney : Broadly, we are there to assist the royal commission. The announcement about being established was made in October of last year. On 1 January this year we commenced work investigating the criminal aspects that had been identified by the royal commission. The task forces stand alone between the jurisdictions. So it is the Federal Police working together in concert with the state agencies on the matters that have been identified by the royal commission.

Senator JACINTA COLLINS: So the process is that the royal commission identifies the criminal aspects of its investigations—

Cmdr Ney : Correct.

Senator JACINTA COLLINS: and the task force assists the royal commission by investigating those matters?

Cmdr Ney : That is correct.

Senator JACINTA COLLINS: Then when matters move on post investigation, what is the process?

Cmdr Ney : Like any other police investigation, if there are criminal matters that are identified then either the police officers involved exercise their powers and commence a prosecution with an arrest or some sort of notice to appear before the court—

Senator JACINTA COLLINS: In the relevant jurisdiction?

Cmdr Ney : In the relevant jurisdiction. Depending on whether it is state law that is affected or if it is Commonwealth will determine whether it is the Federal Police or the state agency that acts in that particular matter.

Senator JACINTA COLLINS: So that is determined at the task force level or at the particular jurisdiction level?

Cmdr Ney : At the jurisdiction level.

Senator JACINTA COLLINS: Maybe I misunderstood the structure here, but the task force's role is to coordinate the various jurisdictions into who should look at or follow through what, and assist in cross-jurisdictional matters?

Cmdr Ney : Correct. Where there are matters that traverse the jurisdictional boundaries, obviously there is a part for me to play in coordinating that activity across the states. But predominantly, the investigations that have been undertaken in a particular jurisdiction are handled by that task force. So in Queensland the matters are dealt with by the Queensland task force, and police officers make their determination based on their oath of office as to whether they should exercise their powers or not.

Senator JACINTA COLLINS: Do you have any cross-jurisdictional matters?

Cmdr Ney : There are matters that have traversed the various jurisdictions—correct.

Senator JACINTA COLLINS: How many are there of those?

Cmdr Ney : I would have to take that on notice. But I would say that more of the matters are pretty much state based, based on the activity that has been identified.

Senator JACINTA COLLINS: How many AFP officers have been seconded to the task force since its establishment?

Cmdr Ney : There are 30 police officers currently attached to the task forces.

Senator JACINTA COLLINS: That is currently. Has that varied over time?

Cmdr Ney : It has been lower than that at different stages. It was 29 up until about two months ago.

Senator JACINTA COLLINS: Marginal differences?

Cmdr Ney : Marginal differences.

Senator JACINTA COLLINS: How many state police officers are attached to the task force?

Cmdr Ney : Would you like them by state, or—

Senator JACINTA COLLINS: Yes, please.

Cmdr Ney : There are nine in New South Wales, four in Queensland, 11 in Victoria and currently three in the ACT.

Senator JACINTA COLLINS: There are none in WA?

Cmdr Ney : No.

Senator JACINTA COLLINS: And none in—where are we missing?—South Australia.

Cmdr Ney : It is pretty much the eastern seaboard plus the ACT.

Senator JACINTA COLLINS: That is quite interesting, given a lot of the rhetoric—at least about some trade union behaviour. Thank you, Chair.

Senator XENOPHON: My questions relate to the Defence Abuse Response Task Force.

CHAIR: Okay.

Senator XENOPHON: It is good to see you again, Mr Hall and Ms Windeyer. According to the task force's 30 June 2015 report, 189 referrals to the state and territory police have been made by the task force. There were no decisions about police referrals outstanding as at 30 June 2015. During budget estimates, Mr Hall, you advised:

We do ask police to provide us with feedback on the process of their investigations. Some of them, of course, can take a very long time. The short answer is: I am aware of one matter…

My first question is, have any further referrals been made by the task force to police since 30 June 2015?

Ms Windeyer : The figure is still that 198 cases of abuse have been referred.

Senator XENOPHON: 189 or 198?

Ms Windeyer : 198.

Senator XENOPHON: 198—so I was wrong to say 189 referrals. Secondly, is the task force aware of the outcomes of any other referrals to the police? For example, have there been any further indictments to police, arrests or proceedings launched as a result of referral from the task force to police?

Ms Windeyer : At this stage we are aware that one matter is due to mention in the ACT Magistrates Court. One matter which was before the Victorian court has been withdrawn by the Victorian Office of the DPP prior to trial. There are no convictions at this time.

Senator XENOPHON: Thirdly, the June 2015 report states:

During the next six months, the Taskforce proposes to conduct some analysis of the interaction of the criminal justice and military justice systems based on information it has obtained from complainants and Defence.

That is paraphrasing. Can the task force provide an update on the analysis that has been conducted to date? When will the analysis be completed? What will the task force do with the analysis once it has been completed?

Mr Hall : The analysis has been undertaken since the early days of the task force. It has primarily been looking at, in relation to all the complaints that raise criminal matters, historical complaints, whether or not those were referred to state and territory police at the time or dealt with by the service police; the nature of investigations; the nature of charges and outcomes of those investigations; and looking at the internal directions provided by Defence to service police about how they handle criminal matters. That analysis has been ongoing throughout the task force. One of the main reasons it was flagged by the chair in the June report this year that further work would be done is the preliminary indications that there was some inconsistency in the referral of matters to civilian police or being dealt with by service police and whether appropriate outcomes arose.

There are also some other anomalies. For example, if the matter is handled by military police and involves sexual assault, the person convicted is not recorded on the national register of sexual assault convictions, whereas they would be if they had been convicted through the civilian police.

Senator XENOPHON: So there is a bit of an anomaly there?

Mr Hall : There are some anomalies between the two systems. Certainly there have been directions in the last 18 months or two years that all sexual assault and other matters should be referred to civilian police. The process we are going through at the moment is reviewing what is happening in practice and how effective that has been, but also looking back at historical cases and seeing whether some of the problems that arose arose because of those practices. That final analysis will be provided in the report at the end of this calendar year.

Senator XENOPHON: When the DART was first set up in November 2012, all decision making power was vested in Mr Roberts-Smith. His time as head of DART ended in November 2014. After Mr Roberts-Smith's departure from the DART, Mr Robert Cornall AO, formerly deputy chair, was appointed as chair of DART. The other two members of the leadership group are Ms Susan Halliday and the Chief Police Officer for the ACT, Rudi Lammers APM. The DART's terms of reference, as amended in September 2014, are silent on how decisions are made within DART. Since Mr Cornall was appointed as chair of the DART, who makes decisions on behalf of the DART? Is there a different structure in decision making or not?

Mr Hall : Because the DART is an executive agency rather than a statutory agency, it is essentially a matter for the chair of the DART to determine how DART decisions are made. I think it would be accurate to say that Mr Cornall has given particular focus to consulting other members of the leadership group, being Susan Halliday and Commissioner Lammers, in the making of decisions.

Senator XENOPHON: So it is a collaborative process, in a sense?

Mr Hall : Correct.

Senator XENOPHON: That 189 figure that I got, Ms Windeyer, was from page 13 of the June 2015 report.

Ms Windeyer : There would have been an increase since that time.

Senator XENOPHON: So it has gone up from 189 to 198?

Ms Windeyer : I will check that.

Senator XENOPHON: I just thought I had transposed the figures, but if there has been an increase of nine, that would make sense.

Ms Windeyer : Just on the leadership group and the chair, the leadership group meets once a month and they make decisions so the chair can sign.

Senator XENOPHON: Does that mean that the views of the 30 June 2015 report Report on progress, operations and future structure are the views of Mr Cornall or the views of Mr Cornall, Ms Halliday and Chief Police Officer Lammers jointly? How would you best characterise that?

Ms Windeyer : Mr Cornall, as chair, was responsible for drafting it and coming to those views, but he did consult with the leadership group in relation to it and they agreed to the approach.

Senator XENOPHON: Can I go to the updating report on abuse at ADFA. In November 2014 Mr Roberts-Smith delivered two reports, Report on abuse at the Australian Defence Force Academy and Report on abuse in Defence. However the DART kept its books open until 15 September 2015 for complaints from women who experienced abuse at ADFA in the period 1991 to 1998. Will the DART be updating the report on abuse at the Australian Defence Force Academy delivered in November 2014 to include its consideration of complaints considered after the November 2014 reports were prepared?

Ms Windeyer : At the moment, by the terms of reference, the task force is due to report by the end of December this year. The chair of the task force will decide what needs to be in that report, which will include an update on any of the ADFA matters which have been reviewed since that time.

Senator XENOPHON: Are you in a position to say at this stage whether there have been other complaints?

Ms Windeyer : Yes, there have been other complaints.

Senator XENOPHON: How many?

Ms Windeyer : Since the November report, I can give you the figures on the number of complaints that we have at the moment that we have assessed. We have received 24 complaints from women who experienced abuse at ADFA in the 1990s. Twenty-three of those have been assessed and one was withdrawn before it was assessed.

Senator XENOPHON: At page 15 of the November 2015 report it states that the task force is aware of at least 13 individuals allegedly responsible for perpetrating sexual abuse at ADFA in the 1990s still serving in the permanent forces or active reserves, and an additional three individuals who have transferred to the inactive standby reserves. Is that statement still accurate, in terms of those who are still serving?

Ms Windeyer : The figure we have as of 30 September is that the task force has referred 25 still-serving alleged abusers to the CDF.

Senator XENOPHON: How many of those are still serving in the permanent forces or active reserves? I am happy to put that on notice if that is more appropriate.

Ms Windeyer : I would like to take that on notice, thank you.

Mr Hall : The answer would be that the advice we had from Defence about the individuals, whether they were still serving or in the active reserves, was at the time they were referred. It is possible that that may have changed since the date of referral. So it is a number that tends to change over time. We can certainly give you an up-to-date assessment of that.

Senator XENOPHON: Going back to the recommendation made by DART when Mr Roberts-Smith, in November 2014, made a recommendation for a royal commission into abuse at ADFA. The continuing members of the DART leadership group at that time were Mr Robert Cornall, Ms Susan Halliday and Commissioner Rudy Lammers. Can you tell me whether they supported or opposed the royal commission recommendation at the time?

Mr Hall : At the time it was made, in November 2014?

Senator XENOPHON: Yes.

Mr Hall : They were not consulted prior to the recommendation being made.

Senator XENOPHON: So that was a unilateral decision of Mr Roberts-Smith?

Mr Hall : That is right.

Senator XENOPHON: As he was entitled to do.

Mr Hall : Yes, that is correct.

Senator XENOPHON: They did not have an opportunity to express to Mr Roberts-Smith any concern about the recommendation of the royal commission?

Mr Hall : I could not tell you that, I am afraid, because I was not involved in all of those discussions.

Senator XENOPHON: But there has now been a different position of the DART not recommending a royal commission into ADFA?

Mr Hall : That is correct.

Senator XENOPHON: In terms of the DART leadership, what is the DART's understanding of why the AFP has not previously launched a broad investigation into sexual assault at ADFA, given the clear indications since 1998 that there had been a major problem with sexual assaults of vulnerable young people at ADFA during that period?

Mr Hall : That will have to be asked to the AFP or the ACT police. All I can add to that is that the process of investigating complaints is primarily on an individual case basis. It will depend on whether the individuals brought their case to police or whether they were separately referred by some other body.

Senator XENOPHON: There is an issue of time limits. You may remind me, Mr Hall. There is an issue relating to the time limits. I do not have that in front of me. There was a cut-off date for complaints whereby that cannot be considered for compensation?

Mr Hall : The cut-off date for the conduct that arose regarding a complaint was 11 April 2011. The cut-off for bringing a complaint to the task force was 31 May 2013.

Senator XENOPHON: That is right. Thank you for reminding me of that. Since that time, from that cut-off date in May 2013, how many complaints have been made to the DART in respect of matters whereby if there was not that cut-off date they would have been able to bring in a claim?

Mr Hall : I am not sure if we have that information.

Ms Windeyer : We have. As at 30 September, 425 people had tried to register post the cut-off date, so they were unable to be registered.

Senator XENOPHON: It is a fairly significant number of people, 435. Presumably a number of them were quite serious allegations.

Ms Windeyer : Four hundred and twenty five, sorry. We know the nature of the allegations only for some of them. Some people chose to give us quite a lot of information and some people simply rang up.

Senator XENOPHON: Has the DART given any advice to government as to what their view is about whether that cut-off date should be extended beyond May 2013?

Mr Hall : The terms of reference do not enable the DART to look at that particular issue. It has advised the government about the figures and about the information that has come forward but considers it a matter for the government.

Senator XENOPHON: Perhaps I could put that to the Attorney and see whether he wants to take it on notice and get appropriate advice, given that there are 425 cases after that cut-off period and that there was a fairly robust process initiated by DART for those cases prior to that time. I will put some other questions on notice. I think it is appropriate that I pause at this time.

Senator JACINTA COLLINS: I will go back to the trade union royal commission task force questions. Are you able to give me an estimate of the cost of the task force to date?

Cmdr Ney : I am sorry. I cannot answer what the spend is by the AFP at the moment. I do not have those figures. We can take those on notice or alternatively the AFP might be able to answer that question for you later this evening.

Senator JACINTA COLLINS: That would be only the AFP component. Is that correct?

Cmdr Ney : Yes. The way that the budget is split at the moment, the AFP has funded its positions within the task force. The state contributions are being funded out of the office of the royal commission.

Senator JACINTA COLLINS: How does that work? The states are assisting the funding of the royal commission? No?

Mr Ney : No, vice versa; the royal commission is funding the contribution of the states to the task force.

Senator JACINTA COLLINS: Okay, so essentially the Attorney-General's Department should be able to assist with an understanding of what component is being paid by the task force for the states?

Mr Ney : Correct.

Mr Minogue : I might have misheard the question you were asking about the expenditure from the task force.

Senator JACINTA COLLINS: I am attempting to ascertain the cost of the task force to date. Mr Ney tells me he can tell me the AFP component but that perhaps the department can tell me what other components there may be, including those that the royal commission itself contributes for the states.

Mr Ney : There is no contribution for the states as such. I do not think the commission itself is making a contribution.

Ms Innes-Brown : There are two separate funding streams. The office of the royal commission is funded and then there is a separate allocation for the state jurisdictions for the police task force which is split between New South Wales, Queensland and Victoria. They were given funding from 2014-15 to 2015-16.

Senator JACINTA COLLINS: Given funding from where?

Ms Innes-Brown : As part of a funding proposal when the task forces were set up. They sit independent of the office of the royal commission.

Senator JACINTA COLLINS: Okay, but I am trying to ascertain where those funds come from. Mr Minogue, are you able to help?

Mr Minogue : I suspect we should take that on notice. I have just been shown some figures that are different from the ones I have. Essentially, the expenditure on the task force, not including the AFP component to date, I understand to be $2,275,000. Then there is the AFP contribution.

Senator JACINTA COLLINS: So $2,275,000 is one stream of funding for the task force. Where would I find that in budget statements?

Ms Pirani : It might take me a few minutes to find that.

Senator JACINTA COLLINS: Would any of this funding have been incorporated in figures that have previously been provided to the committee when we have been asking questions about the funding of the royal commission itself?

Ms Pirani : No, they have always been separately treated. We have a separate line for the office of the royal commission and a separate line for the joint police task force.

Senator JACINTA COLLINS: Okay. The funding for the joint police task force involves two streams: one from the AFP and one from wherever it is they will find for me in the budget papers.

Ms Innes-Brown : Correct.

Mr Minogue : CFO refers me to page 37 of the PBS.

Senator JACINTA COLLINS: Which sets out the two streams? I cannot see an extra line, but maybe I am missing something.

Mr Lutze : The task force line amount showing is actually included in the 17,813 in the 2015-16 budget column.

Senator JACINTA COLLINS: So it is included under the royal commission without being expressed separately as funding for the task force. I go back to my earlier question, which is about answers we have been given previously about the overall cost of the royal commission. Would they have included the task force costs or not? I want to be able to compare apples with apples.

Ms Pirani : Not usually in the way we present them for estimates. In the numbers that we generate for estimates we do separate several components. One is the funding for the office of the royal commission itself. One is for financial assistance towards legal costs. There is another line for Commonwealth legal representation, coordination and support. Then we have another number for the police task force.

Senator JACINTA COLLINS: Where will I find that described?

Ms Pirani : They are numbers that for our own purposes we put together and collate slightly differently from the way they are collated in the budget papers.

Senator JACINTA COLLINS: Can you provide me with that information?

Ms Pirani : Yes, I can. Would you like me to read those numbers out to you or—

Senator JACINTA COLLINS: Maybe you could give me a copy and we could look at it after the afternoon break.

CHAIR: Which we should do now.

Proceedings suspended from 15:46 to 16:04

ACTING CHAIR ( Senator Jacinta Collins ): I call the committee to order. Whilst we wait for the minister and the chair to arrive, we may be able to bring to a close at least the issue we were talking about when we broke. What can you tell me about the costing?

Mr Moraitis : We have been working assiduously over the break to try to make it as simple as possible but here we go.

Mr Minogue : Just to give you a bit of context, Mr Lutze, the Chief Financial Officer, can talk in terms of the formal budget figures, financial statements and appropriations. Then, as Ms Pirani said, at an operational level in terms of the chunks of work that go toward the royal commission that is broken up further down, which may not be reflected in the PBS itself.

Senator JACINTA COLLINS: Why wouldn't that be? Is the problem that they do not add up?

Mr Minogue : No, they do, and I can assure you of that. The issue is essentially that appropriations to the department are then allocated internally for those purposes. So when we discuss, either directly or in response to questions on notice, the costs of the commission we always talk in terms of the various chunks, being the royal commission itself; the financial assistance; the cost of the Commonwealth as a party before the royal commission, which are separate from the royal commission itself; and, then, in the case of this royal commission, the police task force. And because they are funded over time, there are different ins and outs. Probably the safest way to proceed with this is for Mr Lutze to talk in terms of the official financial budget statements. Then to the extent we need to, or can supplement at an operational level, we will approach the question in that way.

Senator JACINTA COLLINS: Does that then mean if we start at the point of this figure that we went to in the PBS, the $17,813, we can work backwards from there? Does that make sense?

Mr Lutze : Let's step back one step for the time being. On page 155 of the annual report there is a note that shows the direct expenses relating to each of the royal commissions split out there. You will see in the second column from the right that the royal commission into trade union governance was $23.383 million. That was the direct expenses that the royal commission incurred, which would have included some portion of the police task force—

Senator JACINTA COLLINS: Sorry, that included?

Mr Lutze : That would have included their contribution to the police task force. The amounts that would have been incurred by the AFP and the state government are not accounted for in this process because it is not an expense directly of the task force proper itself.

Senator JACINTA COLLINS: I am sorry; I am not following you there.

Mr Lutze : The $23.3 million would only include the commission's cost of the police task force that it directly incurred itself. The cost of the task force for the contributions made by the AFP in the states is not included in these numbers.

Senator JACINTA COLLINS: So what would it add to it?

Mr Lutze : We do not know those numbers.

Mr Moraitis : You would have to ask the AFP for AFP's—

Senator JACINTA COLLINS: You would have to ask—

Mr Moraitis : The AFP. We do not have that figure.

Senator JACINTA COLLINS: You do not have the AFP number, but do you have the other number with respect to the contributions for the states?

Mr Moraitis : Do we have that?

Mr Lutze : No.

Senator JACINTA COLLINS: You do not have that number?

Mr Lutze : No, we would not.

Mr Moraitis : But we have another number.

Mr Minogue : The non-AFP number was the number contributed to by offsets from the department for the purposes of the police task force, and the total of that over time, as I said before, was the figure of $2,275,000. For last financial year, 2014-15, that number was $1,249,000. That is the non-AFP component of the task force which was funded by offsets from the department.

Ms Innes-Brown : The actual expenditure.

Mr Moraitis : Yes, that is right.

Mr Lutze : That is included in the $23.3 million.

Senator JACINTA COLLINS: Where do I find that represented in either the PBS or the annual report?

Mr Lutze : The PBS report for 2015-16 reports the funding that is made available for them in 2015-16 financial year. So, on the page you referred to before, which is page 37—


Mr Lutze : The amount we estimated as actual when we did the budget back in April-May this year was that they would spend $23.1 million; they actually spent $23.3 million. And the amount that was set aside for the royal commission, including the task force, would be $17.813 million for this financial year.


Mr Moraitis : It is not separate; it is aggregated.

Mr Lutze : It is included.

Mr Moraitis : It is included there.

Mr Lutze : Yes.

Mr Moraitis : It is just one figure.

Senator JACINTA COLLINS: Are you telling me that the $17.813 million figure includes the offset amounts directed towards the task force?

Mr Lutze : Yes.

Senator JACINTA COLLINS: Okay, but it does not explain that anywhere, does it?

Mr Lutze : No.

Senator JACINTA COLLINS: Does that figure include offsets from departmental funds in any other respect?

Mr Lutze : No. The amount that was actually provided to the royal commission in respect of the additional year that followed the $17 million was actually made up of a reprofile from underspends in previous years.

Senator JACINTA COLLINS: So we have reprofiles of underspends—

Mr Moraitis : For the commission itself.

Senator JACINTA COLLINS: For the commission itself, and we have offsets from department funds—

Mr Moraitis : Of about $2 million.

Senator JACINTA COLLINS: for the task force—

Mr Moraitis : Police task force.

Mr Lutze : Yes.

Senator JACINTA COLLINS: and no other offsets for departmental funds.

Mr Moraitis : Not for that purpose.

Mr Lutze : No.


Mr Moraitis : And then of course there is AFP and states, which we do not have visibility on. Is that correct?

Mr Lutze : Yes.

Mr Moraitis : State jurisdictions and Federal Police—we do not have visibility on either of those.

Senator JACINTA COLLINS: Well, I thought that I was told by Commander Ney earlier that—

Mr Moraitis : I am sorry. We do not have visibility; just the AFP do.

Senator JACINTA COLLINS: So, for the AFP, did you tell me an amount earlier, Ms Innes-Brown?

Cmdr Ney : No; I did not.

Senator JACINTA COLLINS: You have taken that on notice.

Cmdr Ney : Yes. The AFP is on later this evening.

Senator JACINTA COLLINS: Fine; I can ask them. In case we do not get to the AFP, we will put it on notice via the secretariat. Did I misunderstand the information you provided earlier, which was that the state contribution to the task force was fully funded at the Commonwealth level, or are there further contributions from the states?

Cmdr Ney : Those dollars that were just discussed is the pure ongoing effort of the police that are currently there at the moment.


Cmdr Ney : That budget and that expenditure goes directly to offset the costs associated with the state police contribution to the task force.

Senator JACINTA COLLINS: So the offset from the A-G's Department offsets the costs for the state contributions to the task force?

Cmdr Ney : Correct.

Senator JACINTA COLLINS: Is that described anywhere? Did the announcement itself describe it? When the task force was established was there—

Cmdr Ney : Task forces were announced on 31 October last year, and detail around the funding and the numbers was worked on over the next couple of months, prior to stand-up date on 1 January 2015—well, in fact 2 January 2015.

Senator JACINTA COLLINS: Okay. I am sorry; the head-nodding will not be captured by Hansard. Did I correctly identify, and know, there is not some other description of how these funds have been allocated?

Mr Moraitis : I am not aware of any specific description of how that was done, no.

Mr Lutze : No. The method of funding is usually a budget process rather than a presentation issue for the budget statements. We do it normally.

Senator JACINTA COLLINS: Yes, Mr Lutze, I am approaching this from the accountability end. I could ask Mr Moraitis, for instance, 'When did you learn you were going to need to offset $2.275 million out of the department?'

Mr Moraitis : When was I aware? Around October-November last year, I think.

Senator JACINTA COLLINS: So after the announcement but ahead of 2 January?

Mr Moraitis : I was well aware of the need to find some resourcing.

Senator JACINTA COLLINS: Were you aware when it was announced that there would be no contribution from the states?

Mr Moraitis : I would have to take that on notice—my exact recollection of whether I knew that that is how it would work. But I knew there would have to be a contribution, certainly from offsets from the department, to somehow assist the setting up of the task force. I cannot remember the details. I would have to check.

Senator JACINTA COLLINS: Is that standard for a royal commission?

Mr Moraitis : I am not that experienced on royal commissions.

Senator JACINTA COLLINS: No, I am not necessarily either—that they include this next layer.

Senator Brandis: I think I can help, Senator Collins. I do not know if it is standard for royal commissions—in fact, I suspect it is not—But it is certainly one of the budget rules of this government that new outlays require offsets. When the trade union royal commission was established then, obviously, there was an estimate of its cost. Mr Abbott's cabinet took a decision that the cost of the outlays on the royal commission would be offset from other government spending—some of it, but not all of it, from within the Attorney-General's portfolio.

Senator JACINTA COLLINS: When the costs were estimated, did that include the costs that we are now talking about—that the states would not make a contribution?

Senator Brandis: I am not sure. I will take that on notice.

CHAIR: I do not think that anyone else has questions on this, so keep going, if that is the case.

Senator JACINTA COLLINS: Thank you. Mr Ney, are you the head of the trade union royal commission task force?

Cmdr Ney : Yes.

Senator JACINTA COLLINS: What is its leadership structure, if any?

Cmdr Ney : I oversight all of the police activity in the jurisdictional task forces. There is a commissioned officer in each of the states, with the exception of the ACT. There is an inspector in Victoria and an inspector in New South Wales, and a superintendent in Queensland. They run the day-to-day operations of the task force. In the ACT, the day-to-day management of it goes back through the ACT policing in concert with me in terms of discussions as to how things will happen and what direction we will take.

Senator JACINTA COLLINS: You mentioned the ACT as a territory, I assume, as distinct from the states. But, essentially, it is the principle that we were discussing earlier—the actual police jurisdictions are responsible for the state contribution.

Cmdr Ney : That is right.

Senator JACINTA COLLINS: Was it originally envisaged that all states and territories would come on board?

Cmdr Ney : At the time of the creation of the task force, it was only envisaged that we would be on the eastern seaboard—so we would be in Brisbane, Sydney and Melbourne. As a consequence of information that was received, a task force was set up here in the ACT on 30 March—sorry, I cannot say with confidence it was 30 March but it was the end of March 2015.

Senator JACINTA COLLINS: To whom does the task force report?

Cmdr Ney : In terms of my reporting? I have a dual reporting role. One is to the royal commission in terms of the assistance that we are providing to the royal commission. The second is back into the AFP in terms of the AFP responsibilities and the work that we are doing in the Commonwealth sphere. Then you might say that the third is—I would not say 'reporting' but certainly keeping the dialogue going between the managers in the relative states. So that goes back into Vic police, New South Wales police and Queensland police to make sure that we are actually on the right track.

Senator JACINTA COLLINS: Well, the jurisdictions that you are coordinating.

Cmdr Ney : Correct.

Senator JACINTA COLLINS: Is the scope of the task force's area of responsibility the same as applies to the trade union royal commission?

Cmdr Ney : No, it is not. The letters patent obviously direct the royal commission directly towards its terms of reference. But, like all law enforcement investigations, we go where the evidence takes us. If there were offences or matters to be investigated that fall outside of those terms of references, we are obviously going to pick them up and run with them as best we can as well, or, alternatively, refer them to other law enforcement agencies for their investigation.

Senator JACINTA COLLINS: Okay. Then the best way to describe it would be: the regular activities of the AFP and the other state jurisdictional police officers is not limited by the terms of reference of the trade union royal commission.

Cmdr Ney : That is right.

Senator JACINTA COLLINS: May be guided by it but not limited to it.

Cmdr Ney : Yes.

Senator JACINTA COLLINS: Is it limited to criminal law only or does it also examine possible civil contraventions?

Cmdr Ney : The investigations we have been conducting are primarily criminal investigations. Where we have assisted the royal commission on civil matters or matters of governance under the terms of reference, it has been in respect of direct requests for our assistance because of issues that may have arisen with either witnesses or individuals that were being called to the commission.

Senator JACINTA COLLINS: Without compromising the matters you are investigating, can you give me a broad example of what you mean by that?

Cmdr Ney : Some of the individuals that the commission has called to hearings, both witnesses in the community and witnesses in and amongst the unions, have criminal histories or dark pasts in the sense of potentially being violent or dangerous towards people. We have taken a role in assisting the royal commission in it either getting those people there or interviewing them before they come to the commission.

Senator JACINTA COLLINS: So not in relation to a criminal matter per se, but in relation to how to manage or handle—

Cmdr Ney : Dangerous and difficult people.

Senator JACINTA COLLINS: difficulties with a witness?

Cmdr Ney : Correct.

Senator JACINTA COLLINS: Okay. But in terms of other civil contraventions beyond that?

Cmdr Ney : No. It is not our position to follow through with the civil matters. Where civil matters have been identified, they either go straight to the royal commission or off to an agency that is actually equipped to deal with those sorts of matters.

Senator JACINTA COLLINS: I assume the trade union royal commission has its own investigative processes, apart from the assistance that the task force provides. Is that correct?

Cmdr Ney : That is correct.

Senator JACINTA COLLINS: My understanding from what you said earlier was that the royal commission identifies criminal matters which the task force then investigates.

Cmdr Ney : Yes.

Senator JACINTA COLLINS: So, at the royal commission stage, it identifies matters that warrant further investigation, not necessarily matters that there is an evidentiary basis for prosecuting at that point in time?

Cmdr Ney : At that point in time. Sorry, just in terms of making sure that you understand how the information comes to us, there are basically two lanes in which the task force would receive information. One is out of the royal commission, where matters have been clearly identified as being potentially criminal—we will pick up with that and run with that. The second area is where we receive information from members of the public or from other sources that have identified misbehaviour that they think we should be looking at. We will triage that and either it will be for us to investigate that or it will be forwarded on to the most appropriate organisation or into the royal commission for them to look at the governance and/or other issues that might be falling out of it.

Senator JACINTA COLLINS: How do those matters come to you rather than to the royal commission? Has the task force been advertised, in some way, as a place to report potentially criminal activity?

Cmdr Ney : No. The fact that we have police officers on the road and that there are police officers, obviously, on the road everywhere across the country, means that individuals provide information and/or evidence to us on a regular basis. That gets pointed in our direction, depending on where it has been collected, and then we do the triage processes to determine whether it is appropriate for us to look at it or who else should be dealing with the matters.

Senator JACINTA COLLINS: How do you identify what you continue to look at, as distinct from referring to the royal commission?

Cmdr Ney : It is subject, really, to whether there are elements of criminal offences obvious in the referral or the information that has been provided to us. The first port of call, in terms of that triage, is to try and identify whether there are criminal offences associated with the behaviours that have been reported to us.

Senator JACINTA COLLINS: Let me try to understand it this way. The royal commission has identified a potentially criminal matter. You are undertaking further investigations into that matter. In the course of those investigations you then become aware of other potentially criminal behaviour. What I am attempting to understand is what differentiates between you referring that behaviour back to the royal commission as opposed to you not referring it but conducting further investigations.

Cmdr Ney : The only reason we would send it back into the royal commission is if it related to matters falling within the terms of reference. If things fall outside the terms of reference, there is not much point pushing it back into the royal commission because the commission cannot make judgement or further investigate it for the purposes of the terms of reference.

Senator JACINTA COLLINS: Sure, but if your investigations on one matter are identifying material that will assist the commission in relation to its terms of reference but may indeed relate to a quite separate matter, that information will go back to the royal commission?

Cmdr Ney : Subject to it being—

Senator JACINTA COLLINS: Within its terms of reference.

Cmdr Ney : Yes.

Senator JACINTA COLLINS: Does the task force pursue investigations at its own initiative?

Cmdr Ney : Yes, it does.

Senator JACINTA COLLINS: Is that separate from becoming aware of something as a consequence of one matter being investigated? Is there some other basis for you determining matters that you will investigate of your own initiative?

Cmdr Ney : There have been a number of different investigations created, or commenced, that have come from outside the royal commission. Where individuals from the public or concerned citizens or other agencies have identified what they believe is misbehaviour that falls largely within the terms of reference, they will spend some time with us and see whether it fits into our assistance to the royal commission, and if so then we will pick it up and run with it until such time as we can determine whether there is a criminal matter there to be investigated or whether this is material that should be going to the royal commission, or in fact whether these things should be terminated and concluded without further investigation.

Senator JACINTA COLLINS: So then at your own initiative, perhaps by virtue of matters being brought to your attention, media reports—

Ms Innes-Brown : We get a lot of correspondence that comes through our email inboxes, and that is reviewed. If it is from members of the public and organisations that have had issues in the past, it is often referred to the police task force for their investigation or referred to the solicitors assisting.

Senator JACINTA COLLINS: I want to go through the particular example of Mr John Lomax to understand what the process was in that case. Again I do not want to compromise any ongoing investigation so please let me know if there are matters that relate to that. Can you walk me through the process that occurred leading up to the charges being laid against Mr Lomax.

Cmdr Ney : That matter came from an individual who was working in the building industry here in Canberra.

Senator JACINTA COLLINS: Was that before or after the ACT task force was established?

Cmdr Ney : I probably need to take that on notice because I cannot remember whether that information had been received prior to the establishment or post the establishment. In any event the individual came forward and made a complaint about how he was treated and the manner in which an EBA was negotiated. The police conducted their investigation and following their investigation they proceeded to arrest Mr Lomax and take it before the court.

Senator JACINTA COLLINS: That was the AFP?

Cmdr Ney : The ACT police.

Senator JACINTA COLLINS: So that did not come via the trade union royal commission at all?

Cmdr Ney : I would have to take it on notice because I am not entirely sure whether it came out of the royal commission or whether it was a bundle of information that we received very early after the start of the task force.

Senator JACINTA COLLINS: Can you tell me how it is that those charges were brought with what seems to be no proper foundation or reasonable prospect of success?

Cmdr Ney : I imagine you would have to ask the DPP in terms of there being no prospect of a result. Certainly, at the time the police acted they believed that there were reasonable grounds for proceeding in this matter.

Senator JACINTA COLLINS: This was the ACT police?

Cmdr Ney : Correct.

Senator JACINTA COLLINS: Was the task force aware of those grounds?

Cmdr Ney : I was, yes.

Senator JACINTA COLLINS: And did you have a similar view?

Cmdr Ney : I did.

Senator JACINTA COLLINS: Did you have a view that any further work should occur to establish that foundation?

Cmdr Ney : There has been quite a bit of additional work conducted with regard to that matter. However, the DPP is obviously the decision maker as to whether or not a matter proceeds.

Senator JACINTA COLLINS: You have taken on notice what role, if any, the trade union royal commission itself had in this matter. I assume you will also need to take on notice whether they were consulted in relation to obtaining and/or executing a search warrant for the premises of the CFMEU's ACT branch office in connection with this matter.

Cmdr Ney : I can tell you that they were not.

Senator JACINTA COLLINS: They were not?

Cmdr Ney : No. To make sure that that is clear, they were aware that we were executing a search warrant but they were not consulted with regard to us executing the search warrant.

Senator JACINTA COLLINS: How were they aware?

Cmdr Ney : Prior to the date of the execution I advised the commissioner and counsel assisting that we would be executing a search warrant on the CFMEU in the ACT.

Senator JACINTA COLLINS: You have taken on notice what consultation occurred with the task force, and you have taken on notice the fuller description of what other consultation and/or advice may have been provided.

Cmdr Ney : Yes.

Senator JACINTA COLLINS: Did the process for the execution of the CFMEU ACT warrant differ from that adopted in relation to, for instance, the Jackson-Lawler warrant in any material way?

Cmdr Ney : There are two very different pieces of legislation. I have to be very cautious in terms of how I describe either of those given that, first of all, the Jackson matter is obviously a continuing and ongoing investigation, and the CFMEU ACT search warrant is actually the subject of hearings that commenced yesterday and are ongoing today in the ACT Supreme Court. Given that those matters are before the court at the moment, I am just wondering whether we might be able to take those kinds of questions on notice.

Senator JACINTA COLLINS: I think that is a good suggestion, which is why I made the caveat at the outset. I have some very quick questions now simply for the trade union royal commission itself rather than for the task force, and they are very straightforward ones. If I knock them off now they might be able to go if no-one else has questions in that area.

CHAIR: No, I do. Can I just ask about the Royal Commission into the Home Insulation Program. Is that now finalised?

Senator Brandis: The royal commission is, yes.

CHAIR: Have there been any charges laid as a result of the royal commission?

Mr Minogue : Not that I am specifically aware of, but there were originally some state prosecutions or coronial processes in relation to the deaths, in particular, of the four young men who died. In relation to other workplace health and safety or other regulatory action, we are not necessarily aware of those. I could take it on notice, but even then it might be beyond our capacity to answer. In terms of the Commonwealth government's response to the Commonwealth royal commission, I think the Minister for the Environment is leading that. That has set up a number of elements, one of which was some work being done under the Prime Minister's portfolio in relation to the activities of public servants and frank and fearless advice. Other aspects were the industry program that is administered by the department of industry in relation to pre-existing home insulation businesses.

Senator Brandis: Were compensation issues checked?

Mr Minogue : Indeed, through that process.

Senator Brandis: To add to what Mr Minogue has told you, Mr Chairman, probably the most tangible outcome in terms of the victims was that there was a structure set up to negotiate compensation. Where that is at the moment I am not in a position to tell. I can take in on notice if you like, but it seems to me that there were two really important outcomes, above all others, from that. One was to shine a light on what happened, which was itself very important to the families of the four young men who were killed; and secondly, as I said a moment ago, to create a structure for the negotiation of compensation.

CHAIR: Any quasi-criminal charges that might result from or that were highlighted in the inquiry will be dealt with, I take it, by either the department that works with workplace health and safety or the state coroners' courts. Is that what you were meaning before?

Mr Minogue : That is right. This was an area regulated by state laws to the extent there are prosecutions or failures or breaches of either criminal law or workplace health and safety law, they would be pursued primarily by the state regulatory authorities.

CHAIR: Thank you, Attorney. Any compensation will be negotiated. Who are the parties to any compensation claims?

Senator Brandis: People have suffered loss, and it is not limited to—

CHAIR: That is on one side, but I am really meaning on the other side. Does the Commonwealth accept responsibility for the original crazy decision that was made?

Senator Brandis: I do not think I am at liberty to say the Commonwealth accepts liability. The Commonwealth has indicated a willingness to be generous to those who suffered without admission of liability.

CHAIR: I understand the 'without admission of liability', but clearly this whole program resulted from a decision—a very poorly thought through decision—of a federal government.

Senator Brandis: I think the whole program was a catastrophe, and I do not think anybody who is sensible disputes that these days, including the minister who was lumped with the blame for it, Mr Garrett—although the more we learn about its genesis, the more it seems to me that Mr Garrett was perhaps the scapegoat of decisions made by more senior ministers in that government.

CHAIR: But I would assume the laws of the states would apply. What is the Commonwealth's connection in a compensatory way?

Senator Brandis: That is something that, because it involves certain legal judgements, I really do think I should take on notice. But of course, as you know, this program was a Commonwealth-established and Commonwealth-administered program, and no doubt those who are dealing with compensation aspects will be addressing the issue of the causality between the program as established by the Commonwealth and the circumvention or failure to observe various state laws—in particular, workplace health and safety practices.

CHAIR: Is it your department that is involved in the compensation discussions?

Mr Minogue : The department of industry and science have been responsible for the implementation of the Home Insulation Program Industry Payment Scheme. You might have seen ads for that in the paper; it opened on 1 June and called for applications until the end of July this year. That was targeted following a decision of government and is referrable back to the terms of reference of that royal commission, with the impact on pre-existing insulation businesses being the eligibility criteria. That program was developed by the department of industry, so I probably cannot go much further on that because we were not involved in the administration of that payment program. We are not in a position to assist in terms of how they make decisions, the structuring of the payments and the evidence that pre-existing businesses needed to provide.

CHAIR: That is compensation for businesses that suffered as a result of this crazily put together program?

Mr Minogue : There, I have to pick up the Attorney's caution, because language like 'compensation' or 'causation' implies a loss arising from an action, which implies negligence; whereas the Commonwealth do not want to go down that path.

CHAIR: My question was: it does not relate to those who were fatally injured as a result of the program?

Mr Minogue : Perhaps Ms Pirani can add some comments.

Ms Pirani : I understand that payments in relation to the families of the victims were administered by the Minister for the Environment and that department. Again, we were not involved in that arrangement.

CHAIR: That was my next question. Minister, you mentioned the environment. I wondered how that became involved, but you have explained that.

Senator Brandis: One of the outcomes of the royal commission was to enable the families of victims to receive payment by way of solatium, as act of grace payments.

CHAIR: That has clarified that for me and, hopefully, is the end of a very sordid chapter. The royal commission into trade union governance is due to finish by the end of this calendar year?

Senator Brandis: Yes.

CHAIR: The process from there? Could someone briefly explain.

Senator Brandis: The process will be that the Royal Commissioner will present a final report to His Excellency the Governor-General and return, I think the technical term is, his letters patent. That will be the end of his function. He will be, to use the legal phrase, functus officio. In the event that there are matters referred to police or prosecuting authorities, what then takes place will be a matter for the prosecutors to deal with. The report will no doubt be the subject of public discussion, and the findings of the report will reveal what they reveal.

CHAIR: Is the Royal Commissioner able to make recommendations as to prosecutions? I do not want to pre-empt what he might do.

Senator Brandis: I am not sure what the answer to that question yet is. He can certainly refer matters to the prosecuting authorities. He can and will certainly, no doubt, make findings. Whether he makes recommendations for prosecutions, as opposed to recommendations that the DPP examine particular matters with a view to considering prosecution, might be a fine distinction. At the end of the day it is the prosecutor's discretion, not the Royal Commissioner's determination, as to whether prosecutions are brought.

CHAIR: From my following of the coverage in the newspaper, which is not always a good source of information, there seem to be many examples of criminality involved. Would they go to the state prosecuting authorities or the federal prosecuting authorities?

Senator Brandis: Potentially both, depending on the nature of the crimes. As you know, Chair, there have been prosecutions arising from what has been revealed in the course of the Royal Commission.

CHAIR: Just very briefly on this—and I am really seeking legal advice, I guess—one of the failures of the royal commission is that evidence obtained by the royal commission cannot ipso facto be used as evidence in any criminal cases, and the prosecuting authorities have to turn around and get all the evidence again, so to speak. Is that correct?

Senator Brandis: That is right. What a royal commissioner can do is expose to public view certain conduct or behaviours, and its role is investigative. It is not a judicial body; as you know, Chair, it is an investigative body. But, no doubt, in the course of pursuing its investigations evidence does come to light that can then be included in a prosecution brief, or indeed admissions may be made.

CHAIR: To the royal commission?

Senator Brandis: Admissions may be made by witnesses during the course of a royal commission, and if admissions are made, then the fact of an admission having been made may be used in evidence.

Mr Minogue : Generally, as the Attorney says, because the purpose of a royal commission is to discover the truth, or learn the lessons, of a particular event or failing or something of that nature, generally evidence before a royal commission has to be re-proved. Certainly a prosecuting authority would be aware of whatever was said in the public domain or in a report or in a referral by the commission, but in terms of the evidence or an affidavit that 'Mr X did do this on a particular day', that would need to be re-proved and re-tendered in a prosecution, or in a civil regulatory matter as well. The royal commission is for one purpose. It is not a shortcut to prosecution. That would have to be done in the orthodox way.

Senator Brandis: Of course, as I say, if an admission is made—as you will remember from your days as a legal practitioner, Senator Macdonald—an admission does not have to be made in formal proceedings in order to be probative. An admission can be made in a conversation, for example, and the fact of the admission being made can then be put into evidence. If an admission were made during the course of a royal commission taking evidence from various actors involved in certain events, then the fact that that admission had been made could then be put into evidence in a subsequent criminal proceeding.

CHAIR: Thanks for that. I will not go much further. This is purely hypothetical and therefore perhaps should not be asked, but does parliamentary privilege come into the issue of prosecutions arising from any finding of the royal commissioner? Could I claim that I am a member of parliament and the things that I might have said while I was in parliament are not relevant to—

Senator Brandis: It all depends on the facts. There was a decision of the Queensland Court of Appeal about 10 or 12 years ago called Rowley v O'Chee, in which former Senator O'Chee successfully pleaded parliamentary privileges in a defamation case. There may be more recent authorities, but there is a very scholarly judgment of the late Bruce McPherson which deals very thoroughly with the legal issues. It is a few years since I have read it, but, broadly speaking, there must be a relationship between that which is sought to be proved in a civil or criminal proceeding and the conduct of a person as a member of parliament. To keep it out, as it were, he has to say, 'This can't be led in evidence against me because I said this, or published this document, in the course of my work as a member of parliament.' That is the nexus that attracts the operation of the Parliamentary Privileges Act. If you have got some crooked trade union boss ripping off his members, as seems routinely to have happened here, it is not immediately obvious to me how the Parliamentary Privileges Actwould be attracted, even if the crooked trade union boss were then, or subsequently became, a member of parliament.

CHAIR: Would you be able to tell me—perhaps I am straying a bit beyond this portfolio—in the case against a former member of parliament in the lower house, Mr Thomson—

Senator Brandis: Craig Thomson. He was convicted, of course.

CHAIR: Were there any issues of parliamentary privilege raised?

Senator Brandis: No, there were none, because the conduct which was alleged against him and which he strenuously and mendaciously denied had nothing to do with his conduct as a member of parliament. They were acts of theft, basically, engaged in years before he had become a member of parliament. The fact that he had dishonestly denied them during a speech to parliament was irrelevant, because the relevant conduct was not his speech to parliament but the acts which constituted the crimes.

CHAIR: Senator McKim, over to you.

Senator McKIM: I am not after any legal advice from the Attorney-General, but to aid the department I indicate that my questions do not apply to royal commissions, so maybe it would be better for the department if Senator Collins finished her line of questioning; then the relevant officers can go.

Senator JACINTA COLLINS: Then they can go. Okay. Fine. I have finished with the task force, so I do not think anything else that I cover there relates to you. I am interested in how many people are employed in the media and communications area for the trade union royal commission.

Ms Innes-Brown : We have one director—

Senator JACINTA COLLINS: In the task force?

Ms Innes-Brown : No—

Senator JACINTA COLLINS: In the commission as a whole?

Ms Innes-Brown : in the whole commission.

Senator JACINTA COLLINS: I am sorry. You are CEO for the commission as a whole?

Ms Innes-Brown : Yes.

Senator JACINTA COLLINS: Fine. Sorry, I thought that you were forward representing the task force. So it was one?

Ms Innes-Brown : That is correct—a director of media and communications.

Senator JACINTA COLLINS: At what Public Service classification are they employed?

Ms Innes-Brown : EL2.

Senator JACINTA COLLINS: Do you have an organisational chart for the trade union royal commission?

Ms Innes-Brown : I would have to take that on notice. We do have one.

Senator JACINTA COLLINS: Could you provide that to us, please?

Ms Innes-Brown : Yes.

Senator JACINTA COLLINS: What is the total annual cost of the salaries for this area of the trade union royal commission? That is the media area that I am asking about.

Ms Innes-Brown : It would be the salary of the one person at an EL2 level.

Senator JACINTA COLLINS: Okay. Does the royal commission have a media-handling procedure manual or internal guidelines?

Ms Innes-Brown : Yes, they do.

Senator JACINTA COLLINS: Could you provide those to the committee, please?

Ms Innes-Brown : Yes.

Senator JACINTA COLLINS: You have taken those questions on notice, but I do not think that providing those answers is necessarily going to require the full notice period. I am wondering if they could be made available in the course of the next day or so?

Ms Innes-Brown : Sure.

Senator JACINTA COLLINS: Thank you. That is it.

Mr Manning : Sorry, Chair, can I confirm that all the questions for the trade union royal commission are finished?

Senator JACINTA COLLINS: They are.

Mr Manning : And officers of the child abuse royal commission are no longer required?

Senator JACINTA COLLINS: I have no questions there.

Mr Manning : I just wanted to check with the committee as a whole, so they can go.

CHAIR: Senator McKim.

Senator McKIM: I wanted to ask about the department's countering violent extremism program. You have a directory of countering violent—

Senator JACINTA COLLINS: That is a later group.

Senator McKIM: It is a later group?


Senator McKIM: Okay, thanks.

Senator JACINTA COLLINS: That is group 3, I think.

Mr Fredericks : It is. That is group 3.

Senator McKIM: Okay, I will park that.

Senator JACINTA COLLINS: All right. The last questions I have for group 1—I understand there is nobody else for group 1—are related to the merger of the Australian Crime Commission and the Australian Institute of Criminology, although that might even be group 2.

Mr Fredericks : I think that is in group 3.

Senator JACINTA COLLINS: Okay. Then that is it for group 1.

CHAIR: Is that group 3 in the department's area?

Mr Fredericks : That is right, Chair.

Senator JACINTA COLLINS: Why is it in group 3?

Mr Fredericks : It is because those two agencies are referrable to the national security group within our department.

CHAIR: Senator Collins, if you can ever work out how these groups and programs are worked out in any portfolio—after 25 years, I still have not been able to find out.

Senator JACINTA COLLINS: I can usually work it out, but then I have to shift. That is the problem!


CHAIR: We are now continuing with the Attorney-General's Department, outcome 1, group 1—

Senator JACINTA COLLINS: No, we are on group 2 now.

CHAIR: Sorry. We are on outcome 1, group 2. We are dealing with all of group 2 together—so that is 1.1, 1.3, 1.4, 1.5 and 1.6 together. Senator McKim, I will go to you first.

Senator JACINTA COLLINS: But not the national—

Senator McKIM: No, I have some questions on CLCs and the Environmental Defenders Office. It is a shame the Attorney has departed. Can we get some advice on why the Attorney is not here and when he is expected back?

Senator JACINTA COLLINS: He is at the National Security Committee.

CHAIR: He did announce that earlier on.

Senator McKIM: Did he? I am sorry; I was not here. When will he be back?

CHAIR: After the National Security Committee. He expects it will be after seven o'clock. We are breaking from 6.30 to 7.30—so it will be after 7.30. I think Mr Moraitis is with him for the whole of that period as well. Again, we did indicate that earlier on.

Senator McKIM: I probably was not here when those indications were given—my apologies for that. I will ask anyway. My question is about the context of the National Partnership Agreement on Legal Assistance Services. There is what I would describe as a 'gag clause' that prevents community legal centres from lobbying governments and engaging in public campaigns. What do those things actually mean? What can community legal centres not do under the under the headings 'lobbying governments' and 'engaging in public campaigns'.

CHAIR: This has been raised umpteen thousand times in question time and—

Senator McKIM: Yes, and he has been totally unable to satisfy us with his answers.

CHAIR: dare I say, at previous estimates. But you have your 15 minutes.

Ms Quinn : The clause in the NPA I believe you are referring to is about the government prioritising the use of Commonwealth legal assistance funding for front-line services. It talks specifically about maximising support for direct front-line services. It also talks about not using funding to lobby governments or to engage in public campaigns. It goes on to specifically explain that lobbying does not include community legal education. There has been a degree of confusion about that in the sector, despite our best efforts. We also need to clarify that, where a legal assistance provider—and this is clearly stated in the agreement and providers have been made aware—makes a submission to a government or parliamentary body providing factual information and/or advice, particularly with a focus on systemic issues affecting access to justice, those things are not only not prohibited but actively encouraged. In fact they are often sought by various arms of government—public inquiries and that sort of thing.

Senator McKIM: Would you say that strategic advocacy is encouraged or discouraged in the agreement?

Ms Quinn : I think 'strategic advocacy' is a term that is in the eye of the beholder. There are certain instances that some providers would point to that we may well call lobbying and active campaigning—when they might refer to them as strategic advocacy. I think the simplest way to paraphrase the difference as we would see it is: a legal assistance provider writing a letter to a minister, parliamentarian, state attorney-general or some other person in authority and raising a potential issue with a law or a policy—that would be completely fine because that is their observation and their expert opinion. I think it would cross a line once you talk about online spamming of officials or that sort of thing. But I do want to emphasise that this is a rule that only relates to Commonwealth funding being available to a particular entity. Many community legal and other providers have access to both state funds and pro bono funds from things like public interest trust accounts. We are not looking at anything in that area.

Senator CANAVAN: If they are using their own private funds, they can lobby governments—with those funds, just not with the Commonwealth funds.

Ms Quinn : Yes, that is right.

Senator McKIM: But also, just to be clear, Commonwealth funding is often used for basic administrative services within CLCs. There would be, at least presumably, some issue should a CLC use its basic administrative services for things that were explicitly banned in the Commonwealth funding agreement—or there could be.

Ms Quinn : As long as they had multiple arms of funding, it would be very difficult to disaggregate it at the level that you are talking about.

Senator McKIM: I want to ask about what is going on with the national database of CLC clients. My understanding is that that is currently administered by the department but there may be an intention that it be no longer administered by the department?

Ms Quinn : Yes, that is correct. Do you just want me to give you an overview?

Senator McKIM: If you could give me an overview to start with please?

Ms Quinn : Up until the end of the recently expired funding arrangements—so 30 June this year—the department not only maintained the national database that most CLCs use but we actually prescribed its use for administering our funding. From 1 July this year, when the majority of CLC funding went into a national partnership agreement, we no longer prescribe the use of a specific database. But we are certainly very aware that a lot of CLCs—not all, but a lot—use it not just as their financial administration system but also for things like operating their legal practice—conflict checks and that sort of thing.

Senator McKIM: Conflict management, yes.

Ms Quinn : We are working with the National Association of Community Legal Centres for them to develop an alternative. We have given them a pretty significant funding agreement for this financial year for them to work on a solution with the sector. They are also working with states and territories, because they now administer the hands-on funding for almost every CLC. The status of that, from the national association's perspective, is they have started work on that project. They have given us a copy of their initial scoping study. Under their grant agreement, it is important for me to point out that the report remains their intellectual property; it is not actually ours. The scoping study was conducted in July and August to identify the business needs and the work that was going to be required to deliver an effective replacement of that database. The scoping study has now been completed, and the organisation—the national association—have recently issued a request for a proposal. They are in the process for selecting a suitable solution and a suitable provider.

Senator McKIM: The obvious point needs to be made that this was previously something that CLCs or their national association did not have to pay for. I accept that you have given them a grant to have a look at alternatives. What was the value of the grant, by the way?

Ms Quinn : It was $1.3 million.

Senator McKIM: But that is only to examine alternatives and potentially come up with a new model for managing that database—

Ms Quinn : That is correct.

Senator McKIM: or the functions that were done and are still done by that database?

Ms Quinn : Yes.

Senator McKIM: But, ultimately, someone is going to have to pay for it, aren't they, either by buying a service in from an external service provider or by doing the work themselves—or a combination of both. So it is another cost shift, is it not, onto CLCs, many of which are already struggling with funding decreases?

Ms Quinn : Yes, we did do that. But we have actually taken, from the end of this current financial year, the money that we used to spend on maintaining CLSIS—and it is a very, very old and cumbersome system; nobody wants to keep it, I can assure you—into the national partnership agreement. That is why the national association is trying to get the engagement of states and territories. We are not going to leave them high and dry, and we are certainly looking at options for what we might need to do if the transition period needed to extend any longer, but we are also working very hard to make that not happen.

Mr Manning : One of the other changes worth noting on this point is that the information that the Commonwealth is requiring from the sector has been substantially reduced as a result of the new national partnership. So the information that they are obliged to provide to the Commonwealth has been reduced, all of which is part of the same aim which all of these measures are for—is to maximise the amount of the available funds that are spent on front-line services as compared to administration of the system. So what is actually required under the CLSIS replacement will be less than what has been the case in the past in relation to information.

Senator McKIM: Yes, I understand that. Have you ruled out the department continuing to manage a central data system that would allow for whatever reporting the department thinks it needs from the sector as well as the practice management issues that have been identified?

Ms Quinn : Yes.

Senator McKIM: You have ruled that out?

Ms Quinn : Yes, we have. Our transactional arrangement is now between the Commonwealth Treasury and state and territory treasuries. As Mr Manning said, the level of reporting that we, as the Commonwealth, require is now consolidated, quite minimal and at an entire state level. I should also add that a number of CLCs do not actually use CLSIS for the purpose you are talking about, because there are a range of off-the-shelf products available. That is one of the options that the national association is having a look at.

Senator McKIM: Minister Cash, you told the Senate last week, and I am paraphrasing here, that you acknowledge that funding to CLCs through the budget out-years had not been restored and that that was under consideration in the lead up to the midyear—

Senator Cash: It would be considered as part of the normal budget process.

Senator McKIM: I think you said MYEFO?

Senator Cash: MYEFO and/or the normal budget processes.

Senator McKIM: Is it being considered as part of the midyear financial process, or is it being considered as part of the budget?

Senator Cash: That is a decision for the cabinet.

Senator McKIM: You are not going to talk about that now?

Senator Cash: No.

Senator McKIM: Can I ask—it may be the same answer, but you cannot blame a man for trying—does that include Environmental Defenders Offices?

Senator Cash: I need to take that on notice, and you would need to direct that to the Attorney-General because that sits squarely within his portfolio.

Senator McKIM: I will put that on notice in that case, and perhaps you can come back to us on that when you are able. To tie off this issue, does the department—and this relates specifically to Environmental Defenders Offices—have data about what kind of advice is most often given by EDOs to members of the public? If you read the Productivity Commission report it is pretty clear that often advice is given for people not to proceed with action that they were contemplating at the time. Does the department keep any data at all along those lines?

Mr Manning : Noting that the Environmental Defenders Offices have not been funded for some time now, we will have to take that on notice to see whether or not the databases that we do have are able to provide information in relation to the categories of work.

Ms Quinn : I suspect it will not go to the level of detail you are looking for, but we can have a look at what there is there. I think it will be more at a count—

Mr Manning : That is right.

Ms Quinn : and magnitude of cases. I am quite confident the outcomes will not be there, but I think we should look.

Mr Manning : We can tell you what we do have.

Senator McKIM: Can I put a question on notice, then, for some advice, in broad terms, about what datasets you have kept, and also whether it is possible to answer the question I asked, given the data that you hold?

Ms Quinn : Sure.

Senator WHISH-WILSON: I want to ask a question on the media reports this morning about Australia taking legal advice in the wake of Japan's decision to defy the International Court of Justice and continue whaling in the Southern Ocean. Who is the government seeking legal advice from?

Mr Manning : The Office Of International Law officers will be coming here. They were certainly involved in the provision of that advice.

Mr Campbell : I presume, Senator, you are talking about the recent changed declaration—

Senator WHISH-WILSON: That is correct.

Mr Campbell : by the Japanese government on the jurisdiction of the court, and the minister referred to legal advice being sought. That advice is under consideration by the Office Of International Law at this very moment.

Senator WHISH-WILSON: That is under your jurisdiction?

Mr Campbell : Yes.

Mr Manning : Yes, it is part of the Attorney-General's Department.

Senator WHISH-WILSON: Are there any specific parameters around that advice? Has it been framed in terms of whether it is feasible to have ongoing future court actions? Could you give us any dimensions to it, if possible?

Mr Campbell : As you will appreciate, we have just started the advice. It is difficult to say what the dimensions around it are. It will certainly cover the new declaration made by the Japanese government and the effect that that might have on any options open to the Australian government.

Senator WHISH-WILSON: Options being potential future court actions?

Mr Campbell : Including that—without saying whether any court action would or would not be taken, because that is a matter for the government to decide.

Senator BILYK: I want to ask about the funding of the Tasmanian Aboriginal Centre. Are you able to tell me why the Tasmanian Aboriginal Centre lost its funding to provide legal services?

Ms Quinn : Yes. The decision, just to be clear, was not to defund the Tasmanian Aboriginal Centre. It was in fact to go to an open grant round, which was one of the options that is always open to government when a funding arrangement ceases. The history of the centre, and what led us to make that recommendation to government, was one involving a range of concerns. There were some general compliance concerns, there was concern about being able to get answers to questions, and there was an overarching concern from many Aboriginal members of the Tasmanian community about the definition of Aboriginality that was being applied by the Tasmanian centre. Those two decisions very much need to be separated.

Senator BILYK: How did you hear about those concerns from the members of the—

Mr Manning : Sorry, Senator, could I just add some more information before your next question?

Senator BILYK: Certainly.

Mr Manning : There were two other concerns. One was the cost per service at that centre in comparison to the cost at other Indigenous legal assistance providers. The second, flowing on from the issue of their decisions about who was eligible to receive their services, is that there was an issue about the types of services being provided—in the sense that, whilst the Indigenous Legal Assistance Program is 100 per cent funded by the Commonwealth, in every jurisdiction except Tasmania the vast majority of the funds are used on state and territory criminal law matters. In Tasmania, the percentage was quite a bit lower. I do not have—

Ms Quinn : Closer to 50-50.

Mr Manning : Closer to 50-50. That compares with 80 per cent in most other jurisdictions, notwithstanding that the level of involvement with the criminal justice system and subsequent imprisonment of Aboriginal Tasmanians is still much higher than that for the general population.

Ms Quinn : Yes, that is right.

Senator BILYK: You mentioned compliance—are you able to tell me what compliance issues were of concern?

Ms Quinn : There is no one particular incident where we would point to an outright breach of their funding arrangement. But I would categorise the entire relationship as quite difficult in terms of gaining access to adequate information on the sorts of issues that Mr Manning has just alluded to.

Mr Manning : To give some broader context: in administering the Indigenous Legal Assistance Program, obviously we are concerned to ensure that the objectives of those programs are met as well as they can be, and part of that is to ensure that money is being spent as efficiently and effectively as is possible. Working back from that, you need to get information out of service providers about how they are conducting their affairs. To do that the relevant area of the branch runs a database and has some reporting requirements, and different providers engage with that differently. Some are really prompt, keep it up to date and give you the full picture; others do not do so to the same high standard. As Ms Quinn has indicated, in Tasmania's case, over a longer period of time, there had been issues in terms of the Commonwealth officials who had accountability for administering the program being able to get the information to make those types of judgements.

Senator BILYK: And had that been discussed with the TAC?

Mr Manning : Yes.

Ms Quinn : On many, many occasions.

Senator BILYK: Can you tell me how the Victorian Aboriginal Legal Service—or VALS, as I think it is known—was selected to provide legal services to the Aboriginal and Torres Strait Islander community of Tasmania?

Ms Quinn : As I said, there was an open grant round so—

Senator BILYK: Can you explain what happened.

Ms Quinn : any legal assistance provider may have applied. It was on our website, but we also ensured that every currently funded Indigenous legal assistance provider knew about it as well as a number of other Aboriginal organisations in Tasmania. We received three grant applications for funding as a result of that process, and there was an independent process done, so a number of selection criteria. People close to the program and people independent of the program did all their assessments independently. They were brought in and compared, and there was one provider that was a significant standout, way ahead of the others, and that was notionally the Tasmanian Aboriginal community legal centre but, yes, it is run under the auspices of VALS.

Senator BILYK: The Tasmanian Aboriginal legal centre only began because of VALS getting the grant.

Ms Quinn : That is right, but their application was seeking approval to establish a new entity—that is correct.

Senator BILYK: So when you say independent, is this people within the department or—

Ms Quinn : Sorry, yes—internal staff.

Mr Manning : But not engaged in the day-to-day administration of the program, so they weren't people who had a pre-existing relationship with the existing service provider, if you like.

Senator BILYK: Did they understand the issues with Indigenous people, crime rates and representation?

Ms Quinn : They absolutely understood that. They understood the guidelines and they understood the selection criteria they were required to assess each applicant against.

Senator BILYK: You mention the Tasmanian Aboriginal Community Legal Service. Can you tell me how VALS is acting through that: what the relationship is; how it is going; and how it has been set up?

Ms Quinn : It is fully operational now. It has been funded since 1 July, as I think you would be aware.

Senator BILYK: Yes.

Ms Quinn : There has been a telephone referral line active since then. They were certainly working initially while they were recruiting and where they had people from interstate getting their practising certificates established in Tasmania and that sort of thing. They worked quite closely with legal aid to ensure there was no disruption in service.

The way the Tasmanian Aboriginal Centre worked was it did not employ lawyers; it had a privately contracted law firm—and that was an arrangement we had some difficulty with. The first lawyer that was employed by the new provider—by TACLS as we call it—actually moved from the Tasmanian Aboriginal Centre's retained law firm and so they brought quite a few of their clients and their active matters, so there was absolutely no disruption there. I can tell you that they are fully operational and they have got a full staff. They have got an office in Hobart and Launceston, and a presence in Circular Head.

Senator BILYK: Circular Head or Burnie?

Ms Quinn : Sorry, it is the Circular Head Aboriginal centre—yes, you are quite right: it is in Burnie.

Senator BILYK: It is in Burnie isn't it?

Ms Quinn : Yes.

Senator BILYK: How much funding has been allocated to TACLS?

Ms Quinn : So the total value of their five-year funding agreement is $11.78 million.

Senator BILYK: Is that million or billion?

Ms Quinn : Million.

Senator BILYK: Sorry, I do have a hearing problem and I just thought I had better clarify that. So that is over five years, is it?

Ms Quinn : Yes. So their funding for this financial year is $2 million—do you want me to give you the full amount? It is $2,371,774.

Mr Manning : I just make the point that there is no difference in the funding provided to them because they are a new provider.

Ms Quinn : That is correct. So the funding amount was set in advance of appointing which provider it was.

Mr Manning : That is the money that was available in Tasmania. There were funds available for that service provider in Tasmania. It did not change according to who the service provider was.

Senator BILYK: So there wasn't any difference to funding in previous years, if we do a comparison?

Mr Manning : There was some difference—some changes.

Ms Quinn : When we rolled out the new funding arrangements across all three legal assistance providers—legal aid, community legal centres and Indigenous legal assistance—we did new funding allocation models. The bottom line amount is set in the forward estimates, in the budget papers, for each appropriation. We did an assessment of the comparative need as to which states should get which percentage. Tasmania did get an increase as a result of our looking at that; but Mr Manning's point is that, irrespective of which provider had been appointed, that was the amount of money that had been assessed as being required by Tasmania.

Senator BILYK: We talked about the three offices that have been set up. How many staff are in each of those offices?

Ms Quinn : Wayne Muir, whom we mentioned earlier, remains the CEO of VALS; and, because the new organisation operates under the auspices of VALS, there is not a CEO as such but there is a principal lawyer. Could I take on notice the per-office element?

Senator BILYK: Sure. You might also want to take some of these on notice if you cannot answer them. When were the offices officially up and running?

Ms Quinn : I will take that one on notice as well, just to be sure I get the exact dates correct.

Senator BILYK: Yes. With regard to the staff, how many lawyers and how many administration staff are there? Are they employed on a fly-in, fly-out basis or are they permanent part-time or casual staff?

Ms Quinn : The employees are Tasmanian employees.

Senator BILYK: Full time?

Ms Quinn : I will take that on notice.

Senator BILYK: Thanks. Do we know if all the cases that were handled by the previous service were handed over to the new service?

Ms Quinn : No, I know that they all were not. There were some issues in communication with the previous provider and in getting files handed over. There were some definite challenges there.

Senator BILYK: What is the outcome of those challenges? Have you been able to resolve them?

Ms Quinn : They should have been, and they were required to have been. It was one of many challenges we had with the former provider.

Senator BILYK: Has it been sorted out now?

Ms Quinn : Many people have had their cases transferred, yes.

Senator BILYK: Are you able to tell me how many?

Ms Quinn : No, I would have to take that on notice, the exact number. It changes every week.

Senator BILYK: How many were and how many were not, if people were not?

Mr Manning : We will take the details on notice, Senator, but certainly the new provider was very mindful to generate knowledge of its services amongst the community to try to overcome any transfer problems and to ensure that people got the full level of service leading up to court dates and whatnot. Again we can take on notice those arrangements.

Senator BILYK: Thank you. Ms Quinn, you mentioned the phone advisory service. Do you know what hours that is available?

Ms Quinn : There is a 24-hour telephone assistance line.

Senator BILYK: Have there been any complaints about the phone service?

Ms Quinn : Only from the previous provider.

Senator BILYK: Can you tell me what the nature of the complaint was?

Ms Quinn : We had some accusations that the phone was not being answered that we were unable to substantiate. We did have one instance where one police station had not received notice of the new phone number and was trying the old phone number, which was not manned. Other than that the only complaints were from the old provider.

Senator BILYK: I am not sure if I asked about what date all the offices were established—

Mr Manning : We took that on notice.

Senator BILYK: For all three of them, yes. That would be great. Is TACLS suffering from any compliance issues?

Ms Quinn : No.

Senator BILYK: Not so far?

Ms Quinn : No.

Mr Manning : I should say, Senator, in relation to the ending of the previous five-year agreements, we looked at all of the service providers and those that were functioning at a high level were able to be offered new five-year agreements and the Victorian Aboriginal Legal Service was one of those who was. Two centres were offered one-year agreements because there were some compliance issues, and in Tasmania it went to the market—for want of a better term. There is a degree of confidence already when you are dealing with an existing service provider who has, over a long period of time, demonstrated that high-level service, so it provides some degree of confidence, and it has continued in relation to those compliance issues in Tasmania.

Ms Quinn : They have certainly had meetings with some key stakeholders in Tasmania—the state government, the Police Commissioner, the Attorney-General and the Premier. Actually, I could not swear to the Premier, but the CEO has definitely met with the Attorney-General and a lot of key people. The feedback from the Aboriginal community that was not previously recognised by the previous provider—

Senator BILYK: How did you get that feedback?

Ms Quinn : From?

Senator BILYK: From the Aboriginal community.

Ms Quinn : We have been independently contacted by some groups and we have actually gone down there and met with some groups.

Senator BILYK: In public forums or private meetings?

Ms Quinn : No, just individual officers—

Senator BILYK: At individual officer level?

Ms Quinn : Yes; between us and the people running those. In terms of compliance, we have a transition plan for TACLS as they are rolling out their operations and they report to us weekly against that.

Senator BILYK: And they performing okay so far?

Ms Quinn : Yes; and the feedback from legal aid has been positive.

Senator BILYK: How will the performance of TACLS be assessed?

Ms Quinn : In the way we assess all the providers. We will look at their service plan. The new funding arrangements require each Indigenous provider to participate in the service planning that is required of all Commonwealth funded legal assistance providers. So we would look at their participation in that and the sorts of partnership arrangements that they are already entering into with other providers, to ensure the best distribution of service and the maximising of frontline services to the people that this program is established to service. I would also add that client surveys is also a requirement under the agreement.

Senator BILYK: Thank you.

Senator LINDGREN: Ms Quinn, you talked about the problem around the definition of Aboriginality. Could you just explain that for me, please?

Ms Quinn : There is a Commonwealth accepted definition of Aboriginality—and I am going to try to find it in my paperwork while I explain it to you at the simplest level. Despite the requirements of the funding arrangements being to apply the Commonwealth definition, the practice of the Tasmanian Aboriginal Centre had been to apply a very strict subset definition that required connection to Tasmania specifically.

Mr Manning : The previous provider recognised descendants from particular groups as being the only Aboriginal people entitled to their service, notwithstanding that the obligation on them was to provide it to Aboriginal people in Tasmania generally.

Ms Quinn : I do not have the specifics with me, but I can—

Senator LINDGREN: No; that is fine. I understand that. That is the answer I wanted.

CHAIR: Can you just tell us what the total amount of money made available by the Commonwealth for legal aid services is in the current financial year?

Ms Quinn : For the Aboriginal service?

CHAIR: No; legal aid across the board.

Senator JACINTA COLLINS: Actually, Chair, that might help me clarify a question I have outstanding in this space, too. I am interested not only in the legal aid funding that currently resides with A-G's but that which may have subsequently also moved to PM&C. I do not know whether or not you are able to capture that picture.

CHAIR: PM&C would be related to Indigenous legal aid, would it?

Senator JACINTA COLLINS: It is sort of both. For instance, I have questions about the Aboriginal Family Violence Prevention Legal Service.

Mr Manning : That particular program was transferred from this portfolio to the Prime Minister's portfolio.

CHAIR: The Indigenous—

Senator JACINTA COLLINS: No, that is different.

Mr Manning : The Indigenous legal assistance—the one we have been talking about—is administered by us but there is a particular family violence program for Indigenous women which is administered by the Department of the Prime Minister and Cabinet.

Ms Quinn : The Family Violence Prevention Legal Service used to be under our department but, under the machinery-of-government changes, the Family Violence Prevention Legal Service which is Indigenous specific was transferred to Prime Minister and Cabinet and it is part of the Indigenous Advancement Strategy.

Mr Manning : Just as clarification: that is not the most recent machinery-of-government changes.

Ms Quinn : Sorry—not in the last few weeks; in 2013.

Senator JACINTA COLLINS: In a sense, Chair, I would be extending your question, because I believe to get a better sense of all legal aid funding you need to understand not only what is in A-G's but also what is in PM&C, particularly in the Indigenous funding space.

Senator CANAVAN: There are probably more too.

Senator JACINTA COLLINS: We need a mud map, I think.

Ms Quinn : In anticipation of your question, I do not have the figures with me for how much the Family Violence Prevention Legal Services are getting, but Prime Minister and Cabinet will have that. So you want the current financial year. For legal aid, it is $207.95 million. That is provided to states and territories on a treasury-to-treasury transfer. That is the vast bulk of it. The other funding that is available to legal aid commissions is money sitting outside that national agreement, and that, in this financial year, is $3.794 million. That is what we call an Expensive Commonwealth Criminal Cases Fund. That is a separate fund that this department administers directly with legal aid commissions to assist them with the costs of defence in expensive Commonwealth criminal cases.

CHAIR: $3.794 million.

Ms Quinn : Yes.

CHAIR: Of the $207.95 million, do you have a breakdown of how much of that is for administrative purposes?

Ms Quinn : No, we do not prescribe that.

CHAIR: You give it to the states under a—

Ms Quinn : A national partnership agreement.

CHAIR: national partnership agreement.

Ms Quinn : Yes.

CHAIR: Does that have any requirements or conditions at all as to how it is spent?

Ms Quinn : It requires, again, the maximising of front-line services. It does not prescribe the amount that would be appropriate for that. Because it is administered by a single legal aid commission in each state and they are also state funded, a merging of the costs is allowed, for efficiency.

CHAIR: Is there an oversight or an audit process to ensure that the states and territories are using the money for front-line services and not for services that are not part of the national partnership agreement?

Ms Quinn : We have performance benchmarks and milestones and things like that. Each commission is accountable to its own board. We do not go through their reports to work out if their proportion of administration expenditure is too high. It would certainly be part of the conversation, but there is nothing in the national partnership agreement that would—

Mr Manning : It might assist to you know that, under the previous national partnership agreement, it was evaluated by KPMG—

Ms Quinn : Allens.

Mr Manning : sorry, Allens—and, as part of that evaluation, the relative cost per particular type of matter in each jurisdiction was examined. So we are able to compare, across the jurisdictions, what they spend on particular types of matters—for example, a family law matter. We have an idea from that evaluation generally.

CHAIR: But how do we know that the state agencies are not spending the money on political or other advocacy, which is not allowed? How do we know that?

Mr Manning : Legal aid commissions—getting back to the reference to mud maps—are pre-existing statutory bodies in each jurisdiction which have functions set out under the enabling legislation. The majority of the work in most of the jurisdictions is state and territory criminal matters, for which they are funded from sources other than the Commonwealth. The Commonwealth provides funds, and then there is a schedule in the national partnership agreement which sets out the priority areas. So, whilst we leave them a large degree of discretion in relation to which Commonwealth law matters they spend the money on, that makes it clear that the priority clients are people whose capability to resolve legal problems is compromised by circumstances of vulnerability and disadvantage. There are a list of groups who—

CHAIR: That is not the question I asked. The question I asked was more specific. How do we know that the state and territory legal aid authorities, which have $207.95 million of Commonwealth money to spend, are not wrongly spending that on advocacy rather than on front-line services? Is there an audit process?

Mr Manning : In addition to their reporting obligations, there was a review of the last one. It is the combination of these oversight mechanisms which gives us the degree of comfort that we have that legal aid commissions are, generally speaking, very efficient organisations, spending their money on service provision as opposed to administration. Coming back to the earlier questions we had in relation to community legal centres—so we are talking about different bodies—the legal aid commissions are statutory bodies with the functions under statutes, operating under boards appointed by the governments in their state under statute. Because their functions are not political advocacy but rather provision of legal services to financially vulnerable and other vulnerable people, that provides a level of comfort that they are not misappropriating or reappropriating Commonwealth funds for those purposes.

CHAIR: When was the change made that Commonwealth money had to go to front-line legal services and, by implication, not to advocacy, which, in many instances, may well have been politically motivated advocacy?

Mr Manning : In relation to community legal centres, that change was made following the election of the Abbott government and it has been progressively rolled out since that time in terms of the oversight mechanisms.

CHAIR: What are the oversight mechanisms?

Mr Manning : For community legal centres, there are guidelines in relation to the program.

Ms Quinn : There were guidelines until 30 June when we were directly administering the community legal centres. They are now covered by the national partnership agreement.

CHAIR: 30 June, which year?

Ms Quinn : This year and from 1 July this year, community legal centre funding, with very few exceptions, is provided through the national partnership agreement, so bound by exactly the same clauses we were talking about before with Senator McKim.

CHAIR: Okay, but what I am asking you is how you can be assured that community legal centres are not spending Commonwealth money meant for front-line legal defences or representation on things that the Commonwealth does not want them to spend it on.

Ms Quinn : We will be getting reports periodically under the national partnership agreement on, at a state consolidated level, how many services community legal centres have provided—I think it will be divided into the law types. I might have to take on notice what the specifics are so that I can get you a full answer on that, but I can certainly say that in our relationship with states and territories, part of our responsibility is making sure that all the clauses in the national agreement are upheld. We certainly instances where they have asked us for our opinion on a particular activity.

CHAIR: I accept you do that, but I am wondering how you do that.

Mr Manning : If it is a combination of factors. The obligation is established in the national partnership agreement. So in return for the Commonwealth funds to be spent in a particular jurisdiction, the government of that jurisdiction has reached an agreement that it will not be spent in that way. They then work with the community legal centres in terms of funding and whatnot. When it is all said and done, though, Senator, it is one of those situations where we would only know if it was reported to us or we had become aware of it. One of the things we are trying to guard against is the use of Commonwealth funds for political campaigns. So they will often have a political aspect and it is done publicly for that reason. It is through the combination of the agreement of states, the reporting mechanisms about what they are doing and us being satisfied that money is being used effectively, based on our historical knowledge about how it is being used and what we are being told by states. Then the final safeguard, if you like, is the fact that campaigning is done in the public domain, so the Commonwealth would become aware of it then, but there is nothing more than that guaranteed.

CHAIR: But as I understand it, community legal centres, using them as an example, get some Commonwealth money.

Mr Manning : Yes.

CHAIR: Some state money.

Mr Manning : That is right.

CHAIR: And some pro bono money.

Mr Manning : That is right.

CHAIR: I understand from front-line legal services—to me that means, and correct me if I am wrong, that you actually go to court and represent someone, usually I guess in a defensive way or in other ways, in an actual court case or a tribunal.

Mr Manning : Or it might just be giving them advice, or by letter.

Ms Quinn : Community legal centres are far more focussed on the nonrepresentation. They do do some, or some do some and some do none.

CHAIR: But how do we know that someone in the community legal centre is at not saying, 'I'm being paid today from a combination of sources and I'll just spent three or four hours drafting a letter on why the Adani mine mind shouldn't go ahead'? I am wondering how we audit the Commonwealth requirements. Whether or not we agree with them and whether or not we like the rules, how do we know that the Commonwealth conditions are actually being observed—apart from the state commissioner saying, 'Everything's hunky-dory, mate; don't worry about that'?

Ms Quinn : In some jurisdictions there is not state money, so we know categorically that a CLC on any given day is Commonwealth funded—so that is a much easier equation.

CHAIR: Which states are they?

Ms Quinn : It varies, and it varies centre to centre, but—

CHAIR: So some centres are funded by only the Commonwealth and some are funded by both?

Ms Quinn : Yes. And not every jurisdiction has the—

CHAIR: And some are funded by states alone.

Ms Quinn : public purpose money. Not every jurisdiction has that necessarily on the table for community legal centres. So in some jurisdictions we would know. I think the point you are trying to draw out is that if they have three sources of funding they could attribute an activity that we do not want to allow under our agreement; they could attribute it to the other funds. I think that that is quite correct.

CHAIR: So in a centre that is funded, say, fifty-fifty by state and federal, all of the state money could go to advocacy in a state where that is allowed. Are there any states where that is not allowed?

Ms Quinn : I would have to take that on notice.

CHAIR: Could you? Their whole 50 per cent of the funding could go to advocacy and, when people come in and want actual legal representation in a court, they would have to rely on the 50 per cent provided by the Commonwealth—that is possible?

Ms Quinn : I think that hypothetically that is possible. I think it would be extremely unlikely, just because of the community legal sector. They are dealing with people, generally, who cannot help themselves, and they are dealing with them in pretty significant circumstances.

CHAIR: We are not funding the environmental—what were they called—

Ms Quinn : Environmental defenders offices.

CHAIR: anymore. They are still operating. Are they entirely pro bono?

Mr Manning : We do not know. They would get a combination—some might get state government money, some might get some from legal aid commission equivalents like trust funds, and they have private members, as well as pro bono.

Senator CANAVAN: They get tax-deductible gift status from the Commonwealth too. So that would help.

CHAIR: That is perhaps a matter for another committee.

Senator JACINTA COLLINS: Going back to the quantum of legal aid funding, you were talking a moment ago about the public purpose funding available to CLCs. Can you run through for me the total picture of Commonwealth funding for CLCs and how that relates to what you were talking earlier about—the legal aid funding of $207.95 million?

Ms Quinn : I should clarify that that was specifically legal aid, not all of legal assistance.

Senator JACINTA COLLINS: That is what I thought.

Ms Quinn : Under the national partnership agreement—I will just talk about this financial year, for clarity—the amount that has gone in the transfer from Treasury to treasury is $40.021 million. There is then a social and community award, SACS supplementation, that goes to some community sector workers, of $2.971 million. There is then an amount that the department has retained, which it is administering outside the national partnership agreement also for the purposes of the community legal sector. That is $4.334 million.

Mr Manning : There is also the recently announced Women's Safety Package.

Ms Quinn : Yes. That is without the Women's Safety Package.

CHAIR: Where do those figures come from?

Senator JACINTA COLLINS: This is what I was trying to help you with earlier.

CHAIR: I am sorry I did not follow your great assistance. Where do they fit into the $207.95 million and the—

Ms Quinn : These are all in addition.

Mr Manning : I think what happened is that we were using the term legal aid, which to us implies money going to legal aid commissions. But there are three lots of money administered by this department essentially: money that goes to legal aid commissions, money that goes to community legal centres and money that goes to Aboriginal and Torres Strait Islander legal services. The approximately $207 million or $208 million that Ms Quinn spoke about earlier is money that goes from the Commonwealth to legal aid commissions. The money we are talking about here is money that goes to community legal centres, although the method by which the money goes to community legal centres and legal aid commissions, for the majority, is via a national partnership agreement with states and territories. But there are two pools of money there.

CHAIR: Thank you for clarifying that.

Senator JACINTA COLLINS: Is there one or are there two national partnership agreements here?

Ms Quinn : There is one.

Senator JACINTA COLLINS: There is one which covers both legal aid and legal assistance?

Ms Quinn : Legal aid and community legal centres, which we group together as legal assistance. Do you want the total figure for the NPA for this year?


Ms Quinn : That is $250.942 million.

Senator JACINTA COLLINS: What is the figure for next year?

Ms Quinn : $257.144 million.

Senator JACINTA COLLINS: And the following year?

Ms Quinn : $248.714 million. These will all be subject to indexation and things like that. This is just what the forward estimates look like now.

Senator JACINTA COLLINS: They are subject to further consideration from government, we heard earlier.

Ms Quinn : I am just putting that qualifier in.

Senator JACINTA COLLINS: That is what Senator McKim was talking to.

Senator Cash: The out years.

Senator JACINTA COLLINS: That is what we are asking about now.

Senator Cash: Oh, sorry.

Ms Quinn : Do you want the fourth and fifth years?

Senator JACINTA COLLINS: Yes. We are up to four.

Ms Quinn : Yes: $252.901 million, and $256.838 million.

Senator JACINTA COLLINS: Can you describe why we go from $251 million down to $248 million but then up to $252 million. What is the difference there?

Ms Quinn : Between $257 million and $248 million, there is an expiry of some non-ongoing funding to CLCs, and there is also the MYEFO reinstatement that was announced earlier this year. It is for two years and ceases, and it starts to go back up again purely through indexation.

Senator JACINTA COLLINS: Did I have the wrong figure there? I thought the second year was $251.14 million.

Ms Quinn : No, $257.144 million.

Senator JACINTA COLLINS: Okay. So the drop of almost $10 million, down to $248 million, is the figure related to the CLC decision that has not been redressed at this point in time.

Ms Quinn : Yes. There is the expired funding, and then there is the MYEFO. Of course, at the same time, legal aid is going up by indexation.

Senator JACINTA COLLINS: And that is why it continues. It goes from $248 million up to $252 million—

Ms Quinn : Yes.

Senator JACINTA COLLINS: which is still under the $257 million figure—and $256 million. So, even after the subsequent two years of indexation and the earlier backflip, we are still under the $257 million figure of the second year.

Ms Quinn : Yes.

Senator JACINTA COLLINS: I was not going to go here, but since Minister Cash is here I thought I might ask if she could direct me to the 'false and misleading campaign' that she referred to in question time last week, because I have been following this for a while and I have only seen reasonably accurate descriptions of what we just went through in terms of the out years. Has someone that has not come to my attention from the community legal centre been claiming that these are immediate cuts?

Senator Cash: No. As I said, it was not in relation to the CLCs. What I said was in relation to the campaign that had been run by members of the Labor Party and the Greens, from the last budget.

Senator JACINTA COLLINS: Okay. Could you direct me to who in the Labor Party has been inaccurate in describing this situation.

Senator Cash: A number of allegations have been made in relation to cuts, but in particular, from the Greens, it was Senator Larissa Waters who had alleged that we had cut funding from the national action plan, and we have been very clear that we have not cut any funding at all from the national action plan, and we took her through that at estimates. But there have been a number of allegations. I cannot point to specifics now; I do not have them with me. But certainly there was a campaign alleging that we had cut funding immediately, and we had not.

Senator JACINTA COLLINS: I represent the shadow Attorney in the Senate, and I have been asking questions in estimates in this space for some time now. I am not aware of an inaccurate campaign from any of my Labor colleagues, so could I ask you to take on notice which Labor members and/or senators you believe were inaccurately describing these cuts.

Senator Cash: Yes.

Senator JACINTA COLLINS: Thank you. Getting back to our earlier questions about accurately understanding this space, which I think is more the challenge, I want to ask about this issue associated with the Aboriginal Family Violence Prevention Legal Services. Now, they were previously with Attorney-General's—is that correct?

Ms Quinn : Yes.

Senator JACINTA COLLINS: When did they go to Prime Minister and Cabinet?

Mr Manning : I think it was in the machinery-of-government changes after the election of the Abbott government, in late 2013.

Mr Fredericks : Late 2013, yes.

Senator JACINTA COLLINS: And they moved into the Indigenous Advancement Strategy?

Ms Quinn : Yes.

Mr Manning : It was part of our consolidation of Indigenous programs; that is right.

Senator JACINTA COLLINS: Okay. It might be helpful that Minister Cash is here at the moment, because it has been suggested to me that the Aboriginal Family Violence Prevention Legal Services essentially missed out on the women's safety package because they had been shuffled out of A-G's into PM&C and into the Indigenous Advancement Strategy. So, whilst this organisation, Aboriginal Family Violence Prevention Legal Services, at least by its title suggests it would sit right there in terms of the women's safety package, its being shuffled around due to departmental changes, it has been suggested, has led to its being overlooked when it comes to attracting funding under the women's safety package.

Mr Manning : Ms Quinn can provide some details about that funding, but I would make the general point that the money that is going into the community legal sector as part of the $15 million over three years is part of a much bigger program of $100 million over three years which is going to programs all across government. So I do not think you could say that the portfolio you were in determined whether you got money, because money was spread across the government. But Ms Quinn can speak about how those particular programs are being rolled out.

Ms Quinn : Yes. Just to add a bit to that, we were very keen, in allocating this funding or making our recommendations to government about allocating it, to maximise the amount of money that would be for service delivery and minimise how much might be spent on administration. So we made a decision quite early on to recommend funding of only one identified provider per region. In our negotiations with the nominated providers, we are working really closely with each provider to make sure that the entire sector in the region benefits, irrespective of who the nominated funding recipient is.

Senator JACINTA COLLINS: But you are talking about funding for legal assistance, yes?

Ms Quinn : Yes.

Senator JACINTA COLLINS: Okay. My question leaned more towards the women's safety package.

Senator Cash: Was that the $15 million?

Ms Quinn : Sorry, I am talking about the $15 million that Attorney-General's is administering of the $100 million—

Mr Manning : Which is part of that $100 million.

Ms Quinn : which is for providing women with legal assistance services in exactly that space. We have received $15 million of the $100 million package announced by Minister Cash and the Prime Minister.

Senator JACINTA COLLINS: But, by virtue of you administering it, does that mean that, because the Aboriginal Family Violence Prevention Legal Services are within PM&C, its administration by A-G's prevents—

Ms Quinn : No.


Ms Quinn : That would not have, and that is not the reason that no family violence prevention legal service was recommended to government as the nominated provider. It was because we decided to recommend providers that could service the entire region, and, in the areas where there is a family violence prevention legal service, we have directed the nominated provider to ensure that they are working with the FVPLS in their region. FVPLSs do not operate everywhere; they only operate in rural and remote areas, and not in every jurisdiction. The ones that spring to mind are in the Kimberley, Alice Springs and Townsville. There may well be one in the Dubbo region too. But we are working really closely with them to make sure that the entire sector and the entire community benefits from the funding.

Senator JACINTA COLLINS: Okay, but what you are essentially describing here is the tension between one provider providing broad services and specialist organisations that provide services to meet the needs of, in particular, Indigenous women. Now, the women's safety package, to my understanding, includes roughly $21 million of Indigenous initiatives, so that is quite apart from what you are describing as well—

Ms Quinn : Yes.

Senator JACINTA COLLINS: and the criticism here is that that has almost exclusively gone into policing in remote communities—again, not towards organisations that already exist and specialise in providing support for Aboriginal Family Violence Prevention Legal Services. I understand what you are saying in relation to the CLCs, but I still find it difficult to understand what consideration, if any, was provided to specialist family violence prevention legal services within the Indigenous element of the Women's Safety Package.

Ms Quinn : I obviously cannot comment on how PM&C is allocating its component.

Senator Cash: We would need to take that on notice or alternatively put it to Mr Scullion on Friday at the PM&C Indigenous estimates.

Ms Quinn : The commitment we have made is to work with the providers we have nominated to receive the funding to maximise the benefit to all providers. This is not about saying, to use Alice Springs as an example, that in that region FVPLS was seeing none of the benefit of that funding. It is saying that we are not entering into multiple funding agreements but are actively requiring the Central Australian Women's Legal Service to partner with all of the other providers, including the existing Territory government funded domestic violence specialist units, the FVPLS, the Central Australian Aboriginal legal service that we fund, and legal aid.

Senator JACINTA COLLINS: The other questions I have here might also be for Friday. I understand you cannot give us the current figures for the Aboriginal Family Violence Prevention Legal Services. Are you able to tell me, from the period when they were within the Attorney-General's Department, roughly what funding they attracted?

Ms Quinn : I am sorry, but I have not brought those figures with me. I can take on notice what the funding level was when they were transferred, but I do not have the figures with me.

Senator JACINTA COLLINS: I am still back at trying—in part for Senator Macdonald as well—to paint the total picture. What other areas of Commonwealth legal assistance are there, to your knowledge?

Ms Quinn : I think we have covered all of the Commonwealth ones. We used to have four: legal aid commissions, community legal centres, the Indigenous legal assistance providers—sometimes known as ATSILs—and the family violence prevention legal services that we no longer administer. I am not aware of any other specific appropriation.

Senator JACINTA COLLINS: Were they specifically Aboriginal?

Ms Quinn : The family violence prevention legal services? Yes. Those are the ones we were just saying have gone to Indigenous Affairs. There were two Indigenous specific providers—one we still administer and one we do not.

Mr Manning : It is possible that, under particular grants programs, there are payments made to other ones. For example, there could be some in the Immigration space and there could be some in the Centrelink space. But there are no other programs we are aware of. Those are the only details we have.

Senator JACINTA COLLINS: Yes, there are others such as in women's workplace relations and those sorts of areas. I am not going to that space.

Senator CANAVAN: I have some questions on legal and native title assistance. Is this the right group?

Mr Manning : Which particular aspect do you want to ask about? There are two different divisions that deal with it.

Senator CANAVAN: I would like to ask questions about the government's commitments in the northern Australia white paper and any role your department has in implementing them.

Mr Manning : I will get the relevant people to come to the table. Before we go on, can I clarify one matter for Senator Collins? I was just reminded that in our own portfolio, in the Family Relationship Services program, we also have just under a million dollars a year that goes to a legal advice line that people can ring up for family law advice.

Senator CANAVAN: My questions are relatively simple and direct. I want to get a handle on what aspects of the government's commitment to the northern Australia white paper your department are taking charge of. Particularly in the land chapter, in the white paper, there are a number of commitments to increase funding to support the native title system and to conclude native title issues within a decade. Could you start, Mr Minogue, with a general overview of what aspects of those commitments you are handling?

Mr Minogue : Certainly. Thank you. Essentially coming out of that northern Australia white paper there are a number of elements that the Attorney-General's portfolio had responsibility for. Essentially they were, as you mentioned, the aspiration to finalise all native title claims existing as at today within a decade and then an investigation of 'more efficient native title processes to create more certainty for investors and opportunities for both native title claimants and holders'. There is a third stream in terms of funding, which is administered by the Prime Minister's portfolio, which is about supporting native title bodies to operate more effectively. That is touching on things like enabling them to leverage off the native title or administer the native title in a way that can achieve better economic outcomes for communities.

Senator CANAVAN: That is for prescribed bodies and land councils, not traditional owners themselves?

Mr Minogue : I think to some extent there—

Senator CANAVAN: There is an overlap.

Mr Minogue : Yes.

Senator CANAVAN: Of course.

Mr Minogue : Exactly. And there is a sense of community interest. But those matters are administered by Prime Minister and Cabinet, so I will not go too far in relation to those.

Senator CANAVAN: I understand that.

Mr Minogue : In relation to the aspirational target, it is a reasonably ambitious target but not one you would have to say is entirely unachievable. There are a couple of reasons for that. One is the efficient processes that the Federal Court and the National Native Title Tribunal have put in place to progress claims; but also the maturity of the system, to some extent. For example, as at 30 June there were 390-odd active native title claims, and that is seeing a reduction of the number of applications. In prior years there were 667-odd native title claims. So you are seeing a decline in the number of applications and an increase in the resolution of claims—by determination, but more often by consent and resolution.

Senator CANAVAN: Can I take it that the 300-odd difference between those numbers; those have been resolved in one way or another? Or some withdrawn?

Mr Minogue : No, they are the ones that are currently—

Senator CANAVAN: The difference—you had about 600-odd—

Mr Minogue : No, they are new claims. This is where it gets very complex, and there is probably only so far I can take it. Claims take a long time to work through, in large part because initially you are quite often dealing with dispersed peoples in communities without a great deal of infrastructure. Simply marshalling the capacity to bring a claim and then negotiate the outcomes, takes a lot of time. There is no direct relationship or linear relationship between the number in one financial year and the numbers resolved in that financial year.

Senator CANAVAN: Let me put it a different way: the 390 that are active, is that all that we have to deal with, or will there be more claims over the next decade?

Mr Minogue : There can be more claims. What you will also get is the potential for claims for compensation where native title has been extinguished. The native title claims that can be resolved are essentially resolved by determination or litigation. The first step being: is there a connection to the land? Once that is established, then you get into the negotiation and resolution of the claim in relation to the future acts that might impact on the native title that has been established. That is through an Indigenous land use agreement, which is a consensual agreement with the native title holders. Even prior to a claim being established, the proponent, or the party that wants to do an act that might impact on an area where native title is being claimed, will negotiate and resolve the best outcome. Some can be very large and financially quite significant claims. Others can be more specific and tailored to a particular area.

For those reasons, it is an aspirational aim to finalise it within a decade. It is contingent on a whole range of factors, including: the number of new claims, the complexity of claims, the capacity of native title claimants and bodies to progress their claims themselves, and the capacity and willingness of all parties to negotiate resolution. It is contingent on all those things. It is an aspirational claim. Certainly, in the Attorney's portfolio, it is one we are looking to progress.

The other stream of work that our portfolio is responsible for, as I said, is the 'more efficient processes to create more certainty for investors and claimants'—

Senator CANAVAN: Before we move on to that. How are you going to progress that backlog? And how will it be sped up to meet this target?

Mr Minogue : There are a number of factors that can go to that. I should probably say that the Commonwealth's direct capacity to influence those matters is limited to an extent by the fact that the Commonwealth itself is not a party to all of those matters. It is roughly about 30 per cent of those matters that the Commonwealth is a party to. So, in relation to those matters, the Commonwealth acts—as it does in relation to all litigation that it is involved in—as a model litigant. But, even when the Commonwealth is a party, we are probably not the party with the greatest interest in that litigation.

So, in terms of our own direct behaviours and the decisions we make in relation to the litigation that we are a party to, that has a direct effect. More broadly in relation to the system, the main areas that this portfolio is responsible for are in relation to the native title resolution framework. That includes bodies like the Federal Court and the National Native Title Tribunal; both of whom are very focused on resolution and expeditious resolution. You can see that through some of the ways the court itself has attended to the backlog of cases. If you look at some of the statistics in relation to that, the rate of resolution of claims has increased. For example, over the last financial year there were 24 determinations from the court, the majority—20—of which were by consent, as well as all the interlocutory work that the court does.

The other thing that is worthy of note—and again the court would be better placed than the department to answer this in detail—is that the court has maintained a priority list of cases for resolution, and it has done that very deliberately so that the panel or the native title committee of the court can oversee all the cases on that native title priority list. That brings to bear the case management regime that the Federal Court has on all matters, with a particular sensitivity to native title matters, both in terms of sensitivity to the parties and the needs of the parties and the complexities of native title litigation, but also establishing clear time lines and communications for the resolution of those matters.

Again, the majority of the cases before the court, roughly two-thirds, have been finalised through consent through that priority listing. So I think the main contribution from the portfolio, if you like, is in fact through the framework that the court and the tribunal established to do that.

Senator CANAVAN: I think you mentioned the aspects which are about trying to unlock the economic potential; presumably that will help resolve matters too—if there is an incentive to see these matters resolved. Is this the $10.6 million?

Mr Minogue : I would have to take on notice the figure. But that is essentially administered by Department of the Prime Minister and Cabinet, so there is probably a limit to how far up—

Senator CANAVAN: Just to be clear, this is the recommendation:

$10.6 million to support pilot reforms that broaden economic activity on land and demonstrate the benefits of reform to investors, Indigenous Australians and other stakeholders.

That is in the Prime Minister and Cabinet portfolio?

Mr Minogue : I think that is right, yes.

Senator CANAVAN: We can leave that. There is also:

$20.4 million to better support native title holders engage with potential investors.

Is that your area?

Mr Minogue : I would have to confess that I am not across that level of detail, so I would have to take that on notice. But I think that is actually in the Prime Minister's portfolio.

Senator CANAVAN: Finally, the $17 million to support freehold or 99-year leases for willing Indigenous communities?

Mr Minogue : Again, the Prime Minister's portfolio.

Senator CANAVAN: That would be the Prime Minister and Cabinet. Presumably you are responsible for the Native Title Act itself though?

Mr Minogue : That is right. The Attorney administers that.

Senator CANAVAN: Have you yourself looked at this issue, which certainly received substantial commentary in the white paper, around the restrictive aspect of native title and the inability of native title holders to take their rights to the bank, so to speak? Because it cannot be sold or transferred, banks will not take native title as security, and therefore it limits their potential for investment and economic opportunity. Is that something you have looked at, or was it looked at through this process?

Mr Minogue : Through this process as well as the Council of Australian Governments current investigation into Indigenous land administration and use—and that is still an ongoing process that has not yet been resolved.

Senator CANAVAN: Presumably some of these aspects overlap with state and territory legislation?

Mr Minogue : They certainly overlap with state and territory interests. The Attorney maintains or hosts a national native title ministers meeting, and that has been held at various times over the last several years. That is essentially a working forum where jurisdictions put forward their views about aspects of the act that they feel could be improved—either aspects of administration or aspects of their legislation. It is informed by not only the Commonwealth's interest as a participant and party to litigation but also the states and territories, which have a greater exposure to native title administration and indeed support for Indigenous people on land, because it happens more often that states are more directly involved in that than the Commonwealth is.

Senator CANAVAN: The white paper mentions that Queensland has recently reformed its laws to allow conversion of Indigenous land to ordinary freehold and remove restrictions on commercial leasing. Are you aware of those particular changes?

Mr Minogue : Yes, that would be not necessarily a native title property right but some other property right under state legislation.

Senator CANAVAN: Sorry?

Mr Minogue : That would not necessarily be a native title right but some other property right under legislation.

Senator CANAVAN: Certainly there were many reforms to freehold and leasehold in Queensland—pastoral leases in particular in Queensland recently. So they could not do that because that would be still under the Native Title Act? It would have to be done—

Mr Minogue : No, the native title regime affects the rights of native title claimants to the extent that they have a native title property right. It is not always directly analogous to a common-law property right, if you like.

Senator CANAVAN: Let me put it more directly. If we want to get to a situation where native title holders can choose to put some kind of 99-year lease or lien over their property so that there is some transferable right that they can take to the bank, do there need to be any changes at the Commonwealth level to allow that to happen, or can that be done just through state and territory law?

Mr Minogue : There would, but I probably should not go—that would be a question to ask the government.

Senator CANAVAN: I am not asking you whether you would support such a change, just to be clear. I am asking—and certainly that was the suggestion in the white paper—what would need to change to allow that to happen? Would there need to be changes to the federal Native Title Act?

Mr Minogue : There would certainly need to be some in terms of the process and the detail of the amendments that would need to be gone through should a government be interested in progressing that. I would have to take that on notice.

Senator CANAVAN: Presumably, from your answer, such amendments are not being drafted or considered at the moment by the department?

Mr Minogue : I will not answer that, if that is okay, Senator, simply because any discussion of possible amendments themselves would be a reflection on policy considerations of government.

Senator CANAVAN: Chair, I will take your advice there. I do not know if that is quite a reason not to answer. I am only asking whether that is occurring and not about the details of a particular change.

Mr Minogue : Perhaps I will answer it this way. The streams of work that the department is engaged in involve the issues raised under the white paper, the issues raised under the COAG investigation and also the issues that were previously in play with the states and territories through the national native title ministers meeting, so aspects of those touch on the question you are raising.

Senator CANAVAN: I will put it very simply. Is the department or is the government developing amendments to the Native Title Actat the moment? I do not need it today; why don't you take it on notice. I struggle to believe that would be an overly sensitive topic, particularly given the potential changes flagged in the white paper itself. I am certainly interested in this area, given its importance to Queensland, in particular, so I would be interested to know if the government is developing those amendments and when they may be coming out and how stakeholders can be involved in that process.

Mr Minogue : Indeed, and I should say the reason I am cautious about that is that the COAG investigation is still proceeding, so I would be concerned not to look to pre-empt the outcomes of that.

Senator CANAVAN: I might leave it there.

CHAIR: I thank Senator Canavan for raising those issues. What funds have you got, following the white paper, for addressing these issues? You said that $24 million is with PM&C, $17 million is with PM&C and $10.6 million is with PM&C. What funding have you got to do whatever you are going to do?

Mr Minogue : In terms of the funding for the portfolio, the main funding goes to the Federal Court and the National Native Title Tribunal—as I say, being the framework for resolution. To the extent the Commonwealth is a party in relation to particular pieces of native title litigation, the department has funding to discharge those responsibilities. Of course, the department in its general sense is funded to support the Attorney in his administration of the act as the responsible minister.

Mr Manning : There is one other stream of funding. One of the aims that was spoken about earlier is in relation to assisting the resolution of claims, and the department administers, as part of its financial assistance schemes, native title respondent funding, which is $1.597 million this year, and indexed every year. That scheme provides legal financial assistance for legal representation disbursement costs for respondents to claim, whose interests in the claim may be impacted by native title. By providing that, you are helping to ensure all of the relevant parties to a claim are at the table and able to be represented, and thus facilitate the resolution of the claim. There is also what is called the Native Title Officer Funding Scheme, which is about $200,000 per year, which provides assistance to peak industry bodies and other organisations that represent native title respondent groups to employ native title officers—again, to co-ordinate their participation in a native title case and thus help facilitate speedier resolution of those claims, and there are the anthropologists as well.

Mr Minogue : Exactly. In addition to that, there is the Native Title Anthropologist Grants Program. The purpose of that program is to support anthropologists who will give expert evidence in relation to native title litigation about the connection of a claimant group to the country over which the native title is claimed.

CHAIR: Senator Canavan got your agreement on the $24 million to help, which went to PM&C; $17 million for—

Senator CANAVAN: $20.4, I think it was.

CHAIR: $20.4 to help; $17 million for something else—

Senator CANAVAN: I would have to re-look at it, but that was for leasehold.

CHAIR: And $10.6 for something else went to PM&C, but nothing specific went to your department.

Mr Manning : No, we just have those pre-existing amounts, which are designed to facilitate resolution of claims. We did not get additional funds as a result of that work that is being discussed here.

CHAIR: The white paper suggests that you are a bit slow in doing whatever you are supposed to be doing with that.

Mr Manning : In relation to the three schemes we have just outlined, they are all schemes that organisations or individuals apply for. It is not something which the Attorney-General's Department drives. Through a combination of those and the measures that Mr Minogue outlined earlier in relation to the courts that had that priority listing scheme et cetera, I think those rates of clearance as outlined earlier would show that that is not strictly true—that in fact we have been contributing to those clearance rates.

Senator CANAVAN: To clarify, so we can close the loop here, and you may have to take this on notice: with those schemes and that existing funding that has not changed, I presume that is that $110 million a year that the white paper refers to. Is all of that in your department?

Mr Manning : No. We will take it on notice for the detail, but for the numbers of those three small schemes I mentioned, we are talking $1.6 million a year.

Senator CANAVAN: I think this might include court. I am talking broadly in the department, not just this area.

Mr Manning : We will have to take it on notice to see whether we can disaggregate what the courts contribute to it from their overall appropriation. I am not sure we can, but we will take it on notice.

Senator McKIM: Around the legal assistance funding that was part of the Women's Safety Package that was announced recently: as part of that package I understand we had $15 million allocated to legal assistance services, including legal aid commissions and community legal centres. Given the new national partnership agreement for legal assistance which was spruiked as containing all legal assistance funding for the next five years, why wasn't that funding simply allocated to the national partnership agreement, rather than creating a separate stream of Commonwealth funding with the associated reporting and administrative burdens that that results in?

Ms Quinn : The idea of this money is that it is for three years to run pilots across a variety of locations; it is not really designed to go through. If we put the money into a national partnership agreement we would have to renegotiate that national partnership agreement, and we could not direct that the money be spent on the services in the way we will be governing how it is spent for these pilot services.

Senator McKIM: What evidence and datasets did the government use to identify which hotspot areas would receive funding? In other words, how did the government determine which particular legal assistance providers would receive funding in those hotspot areas?

Ms Quinn : In terms of how we identified the areas to target, the first thing to say is that there are far too many communities in Australia with high rates of domestic violence, which you would be aware of—

Senator McKENZIE: Agreed.

Ms Quinn : so there was not going to be a silver bullet option here, where we could serve everybody. The other point to make is that domestic violence is not limited to areas of high disadvantage and high crime rates, because one of the biggest issues is non-reporting, or people not knowing where to go. We are trying to address all of those things. The other thing in terms of parameters is that the statistics on the prevalence of domestic violence are not comparable across jurisdictions. Because the laws are different in different jurisdictions, they are not nationally consistent and they are also very, very difficult to disaggregate because some incidents would be recorded as assault, but there would be a whole lot of other assaults that are not family violence. Those were the sorts of challenges. We were also trying to find a spread of locations that would deliver at least one site in every state and territory; a spread of metropolitan, regional and remote areas; and also enough of a spread that there would be areas that had very high Indigenous populations and areas with high culturally and linguistically diverse populations. So not every location we selected is necessarily sitting on a crime statistic chart somewhere, but they all represent some of those attributes.

Going to the second part of your question about providers: we had a look at which providers already existed in each location and we consulted with states and territories about the viability and suitability for the particular provider we were going to recommend. Part of our judgement on that was their willingness to work with other providers in the area. I am not sure if you were here before when I was talking to Senator Collins.

Senator McKIM: I was watching, yes.

Ms Quinn : Okay, there you go. So it is about benefiting the entire area and all of the providers and introducing a whole lot more capacity in the region, irrespective of who is administering the funding.

Senator McKIM: Just so that I understand then, in determining which areas were going to receive funding—as opposed to providers—you basically had a matrix of different attributes that you looked for, and that included things like reporting rates and crime conviction statistics but also—

Ms Quinn : Where we could.

Senator McKIM: Where you could?

Ms Quinn : Yes, it is not nationally consistent, because there is no national set of laws, so there is no one place we could go.

Senator McKIM: I appreciate that.

Ms Quinn : But we looked at the range of information that we could find.

Senator McKIM: But also including culturally and linguistically diverse communities?

Ms Quinn : Yes, and areas of disadvantage but not only areas of disadvantage.

Senator McKIM: Given that, can I ask why there was no additional funding provided to the Aboriginal family violence prevention legal services as part of this package?

Ms Quinn : As I was saying earlier to Senator Collins, we identified each region and made a decision quite early to recommend to government that we fund only one provider per region, to reduce the administrative burden. In each region where we are going to fund a provider under this money, where there is a family violence prevention legal service in the region, we are working closely with that provider to work with all other providers, and that includes family violence prevention legal services. They are absolutely a part of the legal assistance landscape, and we know the difficulties in Indigenous communities. The areas that we have identified that are very high, with Indigenous populations, are very well schooled in all of the complexities—Alice Springs is a key example I gave before. That provider will be working very closely with all of the other services for domestic violence but also with the other legal assistance services and, very specifically, the Indigenous family violence prevention legal service.

Senator McKIM: Thank you. My understanding is also that there was no specific funding for Aboriginal and Torres Strait Islander people in urban areas and communities; that funding was limited to supporting Aboriginal and Torres Strait Islander providers in regional areas. Is that correct?

Ms Quinn : I think you might be referring to the Prime Minister and Cabinet aspects of the $100 million package. I am only talking about the $15 million we are administering for legal services specifically.

Senator McKIM: Is that potentially, then, a consequence of moving portfolio responsibility for those services from the Attorney-General? Perhaps this is an unfair question to ask you, and I should ask the minister this question. Minister, isn't it the fact that moving portfolio responsibility for some of these services from this department into Prime Minister and Cabinet—presumably in its Indigenous Advancement Strategy—has meant it has, therefore, been abolished as a standalone program with a direct funding allocation? Isn't that the cause of some of these funding gaps?

Senator Cash: No, not at all. Certainly, in relation to the $100 million package, there were—as Ms Quinn has outlined—some quite specific requirements in terms of who we wanted to service. Ms Quinn has explained this to Senator Collins, because I think almost the identical question was asked. I might get Ms Quinn to again take you through why the premise of the question is actually incorrect.

Senator McKIM: Thank you. Sorry, I was watching, but I was also on a couple of phone calls and stuff like that.

Ms Quinn : That is okay; it is quite complex. Our decision to not recommend one of the family violence prevention legal services as a provider under our aspects of this package was about saying that we made the decision—from an administrative simplicity point of view—to nominate one lead provider in each region. Had we nominated the Indigenous service, we would then have had to nominate another service as well to service everybody else, and then we would have been into multiple funding agreements, which you can imagine we wanted to avoid. I will just use Alice Springs as the example, because they have the most players and they are an obvious candidate. We nominated the Central Australian Women's Legal Service there, and we have been very clear with them on the requirement for them to work very closely with all of the other providers—ancillary support services, domestic violence workers and those sorts of services; not just legal services. The family violence prevention legal service is categorically one of the providers they will work with.

If I can just make another point on something else you just said: those services do not operate in metropolitan areas; my understanding is that they did not even when we administered them, So that is not a change, as far as I am aware, and it is certainly not to do with them being administered by Prime Minister and Cabinet.

Senator McKIM: Thank you.

CHAIR: We will suspend.

Proceedings suspended from 18 : 30 to 19 : 34

CHAIR: Ladies and gentlemen, we return to the Senate Legal and Constitutional Affairs Legislation Committee dealing with the 2015-16 supplementary estimates. We are in group 2.

Senator LINDGREN: I have a few questions here about the National Partnership Agreement on Legal Assistance Services. What is the Commonwealth's funding commitment under the new agreement?

Mr Manning : Under the new agreement there is approximately $1.3 billion for legal aid commissions and community legal centres over the next five years.

Senator LINDGREN: What reforms have you implemented as part of the agreement?

Ms Quinn : The two key changes in the new national partnership agreement are the administration by states and territories of community legal centre funding, which has not happened before, and a related change to that, which is the introduction of a requirement for service providers, with states and the Commonwealth participating, to conduct service planning. That is about bringing all providers together to deliver a sector-wide approach to where services are placed and to look at the use of quality data sources, such as evidence of legal need, and also to have collaborative meetings to include all key stakeholders. That includes the Indigenous providers that are not funded under the NPA but are funded directly by the department—they are required to participate as well.

Senator LINDGREN: How is the data which is collected measured and compared to the performance in other sectors or within that sector?

Ms Quinn : The data that I was referring to was the sector itself having a look at data sources that are evidence of legal need. There is an evidence tool that we contracted the development of through the Law and Justice Foundation of New South Wales, but there was also a very large Australia-wide legal needs survey done a few years ago that is also a significant map of unmet legal need in Australia.

Senator LINDGREN: How will these new arrangements improve sustainability of the legal assistance services?

Ms Quinn : We are facilitating all providers getting together to talk about where the need is, to enable more resources to be better directed to front-line services. It is also about facilitating objective, evidence based approaches to state and territory coordination of services, as well as informing the decision making around the distribution of funding to individual community legal centres.

Senator LINDGREN: Does the agreement set a means test?

Ms Quinn : No, the agreement does not set a means test. What the agreement requires is that the majority of representation services, which are the more intensive end of the services provided, are delivered to people who are financially disadvantaged. It does not specifically define financial disadvantage. Legal aid commissions have very well-established means tests themselves and the majority of their services in the community legal sector are not representation services, but, of the representation services they are delivering, we are requiring that 85 per cent go to people who are financially disadvantaged.

Mr Manning : As Ms Quinn said, there is a definition of financial disadvantage which simply means a person who does not have the means to pay for their legal representation without incurring serious financial difficulty—that is the general proposition. Then it goes on to list five categories. It includes a person who is in receipt of Centrelink benefits as their main source of income; satisfies a means test applied by the legal aid commission—legal aid commissions already apply a means test, so there is no additional overlay for some types of work—is exempt from a legal aid test means test, such as a person seeking merits review of decisions about eligibility for Commonwealth military entitlements; or has an income equal to or below the Henderson poverty line. So you can see there are a range of indicators. And then, importantly, in relation to the prominent family violence debate that is going on at the moment, it has a category of people who cannot access finances temporarily due to circumstances outside of their control. It says, 'For example, a person experiencing or at risk of family violence who cannot access finances without risk to their personal safety or the safety of others.' So it specifically envisages a situation where someone might have means in normal circumstances but is unable to access those means to pay for their legal assistance.

Senator LINDGREN: Service providers are deeply concerned about the funding cliff from the end of 2016-17. What will happen then and why?

Mr Manning : As Ms Quinn said earlier in relation to the community legal centre program, there is a reduction of funding of, I think, $12.1 million, once indexation is taken into account, in 2017-18. As indicated earlier, whether or not there are other funds available at that time is something the government will have to consider between now and then.

Senator LINDGREN: Is the government intending to respond to the Productivity Commission's report on access to justice?

Mr Manning : The government is certainly aware of it and has been considering that report in arrangements—for example, it informed the development of the new National Partnership agreement. Whether or not that is something the government is going to formally respond to is something that the government would have to advise you on.

Senator LINDGREN: I have a few more questions, particularly on family violence. What has been the Attorney-General's Department's involvement in implementing the COAG measures to combat family violence?

Ms Quinn : Do you mean the Women's Safety Package specifically?

Senator LINDGREN: The Domestic Violence Order Model Law Framework.

Mr Manning : The Attorney-General's Department is overseeing the Commonwealth's aspect of it, but our colleagues from the criminal justice area, in group 3, are best placed to answer that.

Mr Moraitis : There are two elements: there is the model law and the IT proposal associated with those who were involved with it.

Senator LINDGREN: We will leave that for them then. Can you talk about service areas and legal assistance providers.

Mr Manning : Yes.

Senator LINDGREN: How were the service areas and legal assistance providers chosen to participate in the Australian government's initiatives?

Ms Quinn : Of the $100 million that was allocated for the Women's Safety Package, $15 million is specifically for legal assistance services. We will be administering that over the next three years. We looked at a number of things. Domestic violence, as we know, is not limited to high-disadvantage, high-crime rate areas. There is not a particular definitive source of nationally comparable figures, and the figures that are available are quite difficult to disaggregate. We selected locations that would deliver a spread across all states and territories, covering metropolitan, regional and remote services, and also allowing for some regions that had very high Indigenous populations and areas that reflected high numbers of culturally and linguistically diverse populations.

Senator LINDGREN: The Attorney-General just turned up but, just in case, I will ask you one more question and if you cannot answer just let me know. What other initiatives are being pursued within the Attorney-General's portfolio to combat family violence?

Ms Quinn : If I talk about legal assistance, I have just mentioned that under the national partnership agreement, in the list of priority clients that Mr Manning referred to, people at risk of or experiencing family violence are a key priority area.

Ms Harvey : In the family law area, there are also some initiatives we have underway to look at family violence. One of those is the development of a family violence bench book, which will be a national bench book that will look at both civil and criminal laws that deal with family violence. So that will be across all of those as well as more of the procedural areas where family violence might be an issue, such as how courts can protect witnesses, how they can take evidence and things like that. That is being prepared by the Sydney Law School in conjunction with the Australian Institute of Judicial Administration. We expect that will be finalised in 2017.

We have also just had the Australian Institute of Family Studies provide us with their evaluation of amendments to the Family Law Act 2012, which were designed to assist the family law system in dealing with family violence. That was delivered at the end of August and has gradually been released last week and this week. There are four large reports and we are currently having a look at those to determine what further measures we might need to take around family violence.

The third key piece of work that has been going on has been a reference to the Family Law Council, which the Attorney mentioned earlier. That reference is looking at the intersection between family law as a federal jurisdiction and then the state child protection and also family violence laws, and how some of those issues can be better addressed to assist families with complex needs which include family violence but also include substance abuse and mental health issues, and things like that.

Senator BILYK: Apologies, I still have some questions in group 2, we have just been trying to sort out which group these questions go into. I want to ask about the settlement of the litigation that Timor-Leste brought against Australia in the International Court of Justice. I understand that Australia recently settled litigation—is that correct?

Senator Brandis: That is correct.

Senator BILYK: What was the subject of that litigation?

Senator Brandis: The subject matter of the litigation was certain claims made by the government of Timor-Leste concerning documents.

Senator BILYK: What documents?

Senator Brandis: Documents that were in dispute, Senator.

Senator BILYK: Why did ASIO raid the offices of Timor-Leste's lawyers?

Senator Brandis: Senator, I made a statement about this matter to the Senate in December 2013 in which I explained with some detail and particularity why ASIO had conducted that particular intelligence operation. I refer you to that statement.

Senator BILYK: Have you got the date of that statement, Minister?

Senator Brandis: Not to hand, but it was in early December or possibly late November 2013.

Senator BILYK: Maybe you could find out the date for me.

Senator BRANDIS: You can find out, Senator.

Senator BILYK: No, I am asking you to.

Senator Brandis: I refer you to my statement, Senator. I have got nothing to add.

Senator BILYK: Did ASIO obtain a warrant to carry out that raid?

Senator Brandis: Yes, of course it did. ASIO can only undertake activities of that kind on a warranted basis.

Senator BILYK: Who authorised that warrant?

Senator Brandis: The only minister authorised to issues warrants is the Attorney-General.

Senator BILYK: So that was you, Senator Brandis, at the time?

Senator Brandis: Yes, I was the Attorney-General at the time.

Senator BILYK: What was the basis of the Timor-Leste's claim in the ICJ?

Senator Brandis: These are public documents, I refer you to Timor-Leste's points of claim filed in the ICJ proceedings.

CHAIR: Senator, I do not want to interrupt your line of questioning but these are apparently matters that relate to a budget that is not the 2015-16 budget, unless there are still budgetary implications currently afoot.

Senator Brandis: Mr Reid can correct me if I am wrong, but I am fairly sure that I am right in saying that the settlement of the proceedings between Australia and Timor-Leste occurred before 1 July this year, so not within the 2015-16 budget period.

CHAIR: Were the terms of the settlement confidential?

Senator Brandis: No, they were not.

Senator BILYK: Can I still ask the questions?

CHAIR: Yes you can, but they are not pertinent to the estimates we are investigating here—

Senator BILYK: Sometimes we have to keep coming back estimates after estimates to get some answers, don’t we?

Senator Brandis: It all depends on what question you ask, Senator.

Senator BILYK: It does. If I was allowed to continue, I will keep asking them.

CHAIR: Go ahead.

Senator BILYK: What were the terms of settlement between Australia and Timor-Leste? You have just said it is not confidential.

Senator Brandis: We will provide you with a copy, Senator.

Senator BILYK: You will provide me with a copy?

Senator Brandis: Yes.

Senator BILYK: When might that be?

Senator Brandis: We will take the question on notice so that, rather than paraphrasing a legal instrument, you will have the actual terms for your own private study.

Senator BILYK: Am I correct in saying that, essentially, Australia agreed to restore the status that would have existed had you never authorised the ASIO raid?

Senator Brandis: I would not express it that way but, rather than be a commentator or put my own gloss on the meaning of the terms that settled, I think it is safer to let the terms speak for themselves.

Senator BILYK: When was the case actually settled, Senator Brandis.

Senator Brandis: 11 June.

Senator BILYK: Which year? This year?

Senator Brandis: Yes.

Senator BILYK: So this is the first time in estimates—just to clarify—that I have had a chance to ask questions about it.

Senator Brandis: That was not the point that the chairman was making to you. The point the chairman was making to you was that this estimates committee is convened for the purpose of considering the budget estimates for the 2015-16 financial year, and none of these events occurred in that year.

Senator BILYK: No, except that the settlement took place on 1 June, so one would think it reasonable—

Senator Brandis: 11 June.

Senator BILYK: that I asked questions about it.

Senator Brandis: I am not the author of the standing orders. The standing orders say that the estimates committee consider the estimates of the current budget year.

Senator BILYK: It sounds like both countries could have been saved a lot of trouble had that raid never occurred, and obviously from the comments coming from you, Minister, you are a little bit embarrassed by it.

Senator Brandis: Not at all. That is absolutely incorrect.

Senator BILYK: I want to ask some questions about the cost of the implications for Australia of this litigation. In a previous round of estimates, I think it was Senator Collins who asked some questions and received the response that Australia had taken a team of 11 people to The Hague for the case, all of whom flew to the Netherlands in business class at a cost of almost $90,000. Over $18,000 was spent on accommodation and $16,500 was spent on meals and other incidentals. That tallies to over $120,000. I am wondering what the total costs are now that the case has been settled. Can you tell me the total amount spent on lawyers for this case?

Senator Brandis: Yes. We will take it on notice and get you that.

Senator BILYK: How many lawyers travelled to The Hague to represent Australia at the ICJ?

Senator Brandis: We will take that on notice and give you the answer.

Senator BILYK: You do not know?

Senator Brandis: Not off the top of my head.

Senator BILYK: How many public servants?

Senator Brandis: Again, we will take it on notice and give you that information.

Senator BILYK: Do you know if they all flew in business class?

Senator Brandis: I do not.

Senator BILYK: Sorry, was that another take on notice?

Senator Brandis: I said that I do not know whether they all flew in business class.

Senator BILYK: Will you take that on notice too?

Senator Brandis: I will take on notice what class they flew—yes.

Senator BILYK: I am presuming you do not know the total cost of flights either?

Senator Brandis: I do not.

Senator BILYK: Can you take that on notice?

Senator Brandis: I will.

Senator BILYK: What was the total cost of the ground transport?

Senator Brandis: I will take that on notice.

Senator BILYK: What were the costs of meals and other incidentals?

Senator Brandis: Yes, we will take that on notice.

Senator BILYK: You will take it on notice?

Senator Brandis: Yes.

Senator BILYK: What was the total cost to Australia for this litigation?

Senator Brandis: I think you have already asked that and I have already said that we would take that on notice

Senator BILYK: No, I asked for the total amount spent on lawyers, but now I want to know what the total cost to Australia was.

Senator Brandis: I think you have already asked that but, in any event, we will take that on notice.

Senator BILYK: Thank you, obviously I am not going to get any answers here.

Senator Brandis: No. You will get all of the answers but they will be taken on notice because you have asked for particular figures and you have asked for—

Senator BILYK: And nobody at the table could give me those figures? You are so unprepared.

Senator Brandis: I have taken the questions on notice so that you can be provided with the information after its accuracy has been verified.

Senator BILYK: Okay; I look forward to that. I hope I get them in a shorter time frame than some other answers and not on the day before the next estimates. That is all I have there, but I do have some other questions with regard to the EPBC.

Senator Brandis: What is the EPBC?

Senator BILYK: The EPBC.

Senator Brandis: The EPBC? What does that mean?

CHAIR: I think she might mean the environment protection—

Senator Brandis: You mean the Environment Protection and Biodiversity Conservation Act?

Senator BILYK: That is what I said: the EPBC. Are you trying to be really funny there, Minister?

Senator Brandis: No.

Senator BILYK: You know exactly what I mean. We commonly refer to it as the EPBC.

Senator Brandis: You may, Senator.

CHAIR: Let's have your question, Senator Bilyk.

Senator BILYK: Seriously! Since the change in leadership in the Liberal government, has the Attorney-General had fresh discussions with either the Prime Minister or the Minister for the Environment regarding the proposed repeal of section 487?

Senator Brandis: You should know that conversations among ministers are not something that is ever disclosed at estimates hearings.

Senator BILYK: Will the government be proceeding with its plans to repeal section 487?

Senator Brandis: There has been no decision not to do so.

Senator BILYK: Does the Prime Minister agree with the Attorney-General that the repeal of section 487 is necessary to protect Australian jobs?

Senator Brandis: The Prime Minister and I are in agreement on all matters at all times.

Senator BILYK: On all matters at all times? I do have a hearing problem—is that what you said?

Senator Brandis: Yes. That is the way cabinet government works—ministers adopt a common position.

Senator BILYK: So you cannot have a difference of opinion?

Senator Brandis: It is not for me to give you a tutorial on how cabinet government works, but that is the way cabinet government works.

Senator BILYK: You are such a funny man, Senator Brandis! When the former Prime Minister, Tony Abbott, stated 'whether it's ensuring that projects that meet the strictest standards can go ahead without the kind of ‘lawfare’ which the Labor-Green alliance is now waging against them, every day that is what we are on about', what did he mean?

Senator Brandis: You would have to ask him.

Senator BILYK: Did you agree with the former Prime Minister?

Senator Brandis: I did, as a matter of fact. You asked me what Mr Abbott meant but my own view, which I believe is what Mr Abbott was saying, is that section 487 of the EPBC Act provides unusual and indeed unique rules for standing on, unknown anywhere else, to the best of my knowledge, in Australian law, which enable people with no interest other than what might be thought of as a philosophical or political interest in a particular environmental project the right to challenge a ministerial decision made under the act. It was the view that I took and the view that the former Prime Minister took and that the current Prime Minister takes that where circumstances arise, as has been the case and was the case in relation to the Carmichael mine in the Galilee Basin in Queensland, that litigation was undertaken not to protect any bona fide interest but merely to prosecute a particular political view about environmental policy, that was not an appropriate basis on which litigation should be brought and would not be allowed under ordinary principles governing standing to bring proceedings in a court.

Senator BILYK: Did section 487 play a role in the Federal Court's orders on 4 August 2015 relating to the Adani Carmichael project?

Senator Brandis: When you say 'play a role', as I understand it those orders were consent orders but the basis upon which the applicants in that case were in a position to challenge the ministerial determination was because they were given standing under section 487 which they would not otherwise have had under ordinary law.

Senator BILYK: If that is the case why did the Federal Court make the orders it did?

Senator Brandis: Because, as I said to you a moment ago, they were consent orders.

Senator BILYK: Was it a consequence of 'lawfare'?

Senator Brandis: That is a term of somewhat ambiguous meaning, but if by that you mean—

Senator BILYK: I mean it as the former Prime Minister used it.

Senator Brandis: If by that you mean and if by that he meant that resort to litigation to prosecute political causes by claimants or parties with no orthodox legal interest to protect or defend, which I think is the way it is used by some newspaper journalists and commentators, then the fact that the claimants did have no standing but for that deemed under section 487 of the EPBC Act would demonstrate that it was, yes.

Senator BILYK: On ABC AM on 25 September 2015, the Minister for the Environment stated:

… there are no plans from any discussions that I've had to change that law.

Can the Attorney-General discuss the nature of the discussions he has had with the Minister for the Environment regarding the repeal of section 487?

Senator Brandis: Well, I have already answered that question.

Senator BILYK: Is that still a no?

Senator Brandis: No, it is not a no. It is that it is not appropriate for ministers to disclose in this forum conversations with other ministers.

Senator BILYK: How extensively has the Minister for the Environment been consulted regarding the repeal of section 487?

Senator Brandis: I speak to my colleague the Minister for the Environment about a range of matters very frequently.

Senator BILYK: Can you give me an example of the kind of vigilante litigation to which you have referred previously?

Senator Brandis: Yes. We just have been discussing the most recent and infamous example—that is, the Carmichael mine and the Galilee Basin.

Senator BILYK: How many jobs has section 487 cost since the act's commencement under the Howard government?

Senator Brandis: That is a very controversial question. There are many different estimates that I have seen. Not being an economist or an economics statistician, I do not have a private view of my own, but I have seen it claimed that the loss in jobs over time, were the Carmichael mine to be stopped, could be as many as 10,000. I do not vouch for that figure, but that is certainly the claim. I do not discountenance it either, by the way. I just draw your attention to the fact that there are some who estimate the potential loss of jobs from that project, were it to be stopped, would be as many as 10,000.

Senator BILYK: On 27 September 2015, the Attorney-General insisted that 'no decision has been made by the government not to proceed' with the repeal of section 487. Do you still stand by those comments?

Senator Brandis: Well, you just asked me that question. I replied to you in precisely those words.

Senator BILYK: You have also stated section 487 is a 'unique' provision?

Senator Brandis: I just said that too, and it is.

Senator BILYK: Are you aware of the range of legislation which provides for open-standing provisions for any person to bring civil enforcement proceedings?

Senator Brandis: There is no provision of which I am aware in Commonwealth law, or indeed in the laws of the states and territories, in the same terms as section 487. It may be that there are some states' environmental statutes that are cast as broadly as that, but if there are I am unaware of them. It is certainly a very unorthodox provision. It violates the whole principle and the whole body of legal doctrine governing standing to sue—that is, one must have an actual direct or indirect interest, not merely a theoretical or philosophical or ideological or political interest.

Senator BILYK: What about section 58A of the Hazardous Waste (Regulation of Exports and Imports) Act 1989?

Senator Brandis: I do not profess to be a—

Senator BILYK: Or the Fuel Quality Standards Act 2000?

Senator Brandis: I am not familiar with those provisions, but I very much doubt, given the manner in which section 487 is expressed, that they are in identical terms.

Senator McKIM: I will just be brief. Senator, I put it to you that your arguments on standing under the EPBC Act are intellectually bereft. Isn't it the case that global warming will directly impact—and I would argue is directly impacting—not only on every person in this country but in fact on every person on the planet, and for that matter all of our descendants? I further put it to you that for you to suggest that people's only interest in things like coalmines proceeding is philosophical, theoretical or political is just plain wrong. Everyone is potentially directly—

CHAIR: Senator McKim, is there a question there?

Senator McKIM: Yes, and in fact it was phrased as a question, because I said, 'Isn't it the case?'

CHAIR: What is the question?

Senator McKIM: The question is, Chair: isn't it the case that every Australian has a direct and meaningful interest in whether things like large-scale coalmines and associated infrastructure go ahead and, in that case, shouldn't they have standing, because their interest is not limited, as you have wrongly argued, to political or theoretical?

Senator Brandis: Senator McKim, I do not accept that at all. What you are really inviting me to engage you on is a policy question—and that is, whether or not the traditional legal rules in relation to standing should be relaxed or indeed eliminated when it comes to environmental questions. That is a policy question. You think that it should be. I think that there shouldn't be but, when responding to Senator Bilyk's question, I was addressing a legal issue. There is no doubt whatever that section 487 is at variance from the traditional legal principles governing the right of standing to sue or to challenge decisions. Indeed section 487 would not be in the act if it did not change the traditional legal position.

Senator McKIM: With respect, Senator, you were advancing a policy justification for—

Senator Brandis: No, I was merely telling you what the law is.

Senator McKIM: No, you were, and I just asked this question: you were advancing a policy rationale.

CHAIR: Senator McKim, this is not a debating exercise. We are here to ask questions. If you have questions, please ask them. Do not enter into debate with the minister; and, Minister, please don't debate with the senator.

Senator McKIM: I actually do not think Senator Brandis needs your protection, Chair.

CHAIR: Do you have a question?

Senator Brandis: Senator McKim, if I may, because you say that my proposition is intellectually bereft.

Senator McKIM: Yes, I do.

Senator Brandis: You may disagree with the policy, but I am telling you what the law is. I have argued this area of law in superior courts several times in the course of my career. I am very, very familiar with the legal principles. Section 487 is at variance from the orthodox legal principles.

Senator McKIM: I am not seeking to dispute you on that, Senator. What I am seeking to do—

Senator Brandis: That is all I am saying, Senator.

Senator McKIM: That is not all you said with respect. You advanced a policy rationale for those legal principles, and that is the matter that I was challenging you on and that is the matter—

Senator Brandis: It is not a matter of challenging. Do you have a question?

Senator McKIM: That is the argument that I described that is intellectually bereft, so—

CHAIR: Do you have a question?

Senator McKIM: Do you accept—I do have a question, Chair, thank you. Senator Brandis, do you accept that human induced climate change will impact on every person in this country; and, as a supplementary, therefore isn't it reasonable for people who have what you describe as a philosophical, theoretical or political interest in major developments such as major coalmining and exporting facilities to have standing under the EPBC Act so that they can be active participants in legal action?

Senator Brandis: Senator McKim, you have asked me two questions. As to the first, I do not know but I take what some people call the precautionary approach, which is that, given the very strong body of opinion that supports the proposition you have put to me, I think rational public policymaking would take account of that body of public opinion and take a precautionary approach without, by the way, silencing, dissenting minority views as some who argue your position sometimes seek to do. But that is just my approach, because I am not a scientist. I am not an environmental specialist. I have no specialist knowledge or authority to speak about the matter at all.

In relation to the second question, I disagree with you. Because, if it were the case, Senator McKim, that anyone who had a very strong political, philosophical or ideological point of view about an issue—and let's face it: we are members of parliament. We have all striven to be elected to this Senate and to have the high honour of being a senator, so almost by definition all of us have strong political, philosophical, ideological views of one kind or another. If we could use the courts to advance those views in any area of policy which might engage those views, I think you could readily see that the courts would become unworkable for ordinary litigants. They would become a forum for political dispute rather than a forum for resolving disputes between everyday citizens, and I think that would be very undesirable.

Senator McKIM: I think that you have drawn a very long bow there to suggest that that may be the case. As you would well know, courts have responses available to them in cases of vexatious claims, for example—

CHAIR: Senator, do you have a question? Estimates in the federal parliament is about asking ministers and public servants questions, not to debate. The parliamentary chamber is for debate.

Senator McKIM: Thank you, Chair. Is it not the case that courts have mechanisms and remedies available to them in the case of things like vexatious claims?

Senator Brandis: Yes, but the law governing vexatious litigants is a very, very narrow body that applies to a very, very narrow category of cases. For you to suggest that there is no distance between having no law about standing to sue and allowing everything to be governed by that very tiny category of cases dealing with vexatious litigants is a nonsense, with respect.

Senator McKIM: You say that it is a nonsense; I say that your argument is intellectually bereft—

Senator Brandis: Well as long it is not legally bereft. That is all I care about.

Senator McKIM: I am not in a position to make an assertion on the legalities of your argument.


CHAIR: We will move from group 2 to outcome 1, group 3, a just and secure society through the maintenance and improvement of Australia’s law and justice framework and its national security and emergency management system.

Senator BILYK: I wanted to ask some questions about data retention. Since the passage of the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, how many ISPs have provided data retention implementation plans, or DRIPs, to the Attorney-General's Department?

Ms Chard : The department has received 227 implementation plans, or applications for exemption or variations from providers.

Senator BILYK: How many of those DRIPs provided have been approved?

Ms Chard : Decisions have been made on 79 of those, as at 13 October. All of the decisions that were due within the statutory time frame for consideration have had decisions made against them.

Senator BILYK: What is the expected time frame for the other however many it is that are left?

Ms Chard : All of the remaining that we have to date will be due by the end of December.

Senator BILYK: When will those people know?

Ms Chard : We engage with providers during the process of assessing their applications, but the Communications Access Coordinator has 60 days with which to consider the applications, assess them and make a decision. With the ones that we still have within the department, of the 227 that we have the remaining will come due for decision by the end of December, and they will be notified by the end of December, depending on when they submitted their application.

Senator BILYK: How many ISPs have applied for an extension of time for compliance?

Ms Chard : I would have to take that on notice. The applications that we have received come from a range of providers that include carriers, carriage service providers and internet service providers.

Senator BILYK: With noncompliance, will the new data regime be strictly enforced over the coming months given the large number of ISPs who I understand have been unable to lodge DRIPs?

Ms Chard : The priority for the department is to work collaboratively with any providers during the 18-month implementation period. That is going to be our predominant focus—to work with those providers who have yet to submit any applications. We will not be looking to pursue enforcement action within the implementation period unless it is an absolute last resort.

Senator BILYK: You mentioned that 79 DRIPs have been approved. What considerations form the department's decision to approve or disapprove a DRIP?

Ms Chard : There is a range of considerations that the communications access coordinator needs to take into account when they are assessing applications. They need to take into account the objects of the act. They need to explicitly take into account the regulatory burden on a provider, in the case of implementation plans. In the case of requests for exemption or variations, they need to take into account explicitly the costs of compliance and also the alternative strategies that a provider might be proposing to put in place as an alternative as part of the case for their exemption. The communications access coordinator also needs to take into account the interests of enforcement agencies.

Senator BILYK: What sorts of things would mean that you would disapprove, or not approve?

Ms Chard : In the case of implementation plans, the communications access coordinator does not actually have the power to disapprove a plan. They have the power to approve a plan or request amendments to that plan. In the case of a request for an exemption or variation, there is a power to reject the request for exemption or variation, and there would be a range of considerations that the communications access coordinator would take into account when considering those exemptions and variations—for example, if there had not been sufficient information provided around the nature of the provider's service or the alternative strategies that they were going to put in place as a safeguard against the exemption that they were seeking.

Senator BILYK: You can only approve a DRIP?

Ms Chard : That is right—approve an implementation plan or seek an amendment to an implementation plan, which is effectively to seek further information.

Senator BILYK: And presumably you are consulting with the applicant anyway, so they know what the amendment needs to be. Is that correct?

Ms Chard : Yes.

Senator BILYK: And then if the amendments are met they will be approved?

Ms Chard : That is correct. If the amendments are met, if the additional information that the communications access coordinator was seeking is provided, and the communications access coordinator considered the considerations that they need to take into account under the legislation, then that would be approved. The provider would then have the period within the 18 months to actually implement their plan—

Senator BILYK: That is 18 months from approval?

Ms Chard : No, the 18-month implementation period is from 13 October 2015 to April 2017.

Senator BILYK: But if you have already got a backlog—

Ms Chard : We do not have a backlog as such, Senator. When a plan arrives to the department, the communications access coordinator has 60 days under the statutory time frames to consider that application and make a decision. So we are working within those statutory time frames. They have been met to date and we foresee that we will continue to be able to meet those time frames.

Senator BILYK: What process do you follow for the provision of funding to compensate ISPs for increased compliance costs?

Ms Chard : The government has committed to delivering a grants program. Funding has been allocated in the budget to support that grants program.

Senator BILYK: Is that the $131.3 million?

Ms Chard : That is correct.

Senator BILYK: How much of that so far has been provided to ISPs?

Ms Chard : None of that funding has been provided to ISPs yet.

Senator BILYK: What about start-up costs for CSPs—carriage service providers?

Ms Chard : What is your question?

Senator BILYK: As I understood it, the department was deducting $2.9 million from nearly $131.3 million allocated in the budget to contribute to CSP start-up costs.

Ms Chard : The funding allocation in the budget, which consists in total of $131.3 million, consists of $128.4 that will be distributed to providers who are eligible for a grant under a grants program. Of that $131 million, $2.9 million has been allocated in departmental funding to support the implementation program to support the administration of that grants program.

Senator BILYK: So that $2.9 million goes to the department?

Ms Chard : That is correct. Over three years.

Senator BILYK: So what is that 2.9 going to be used for within the department?

Ms Chard : The 2.9 will be used to support staff and IT systems, and administration processes to run a grants program. That will include the opening of a grants program, the provisioning of IT systems so that providers can apply online—an assessment process—and then the administration that is associated with the negotiation of funding agreements, the monitoring of those grants during their life and any assurance mechanisms that will be put in place.

Ms K Jones : That funding is spread over a three-year period.

Senator BILYK: The 2.9?

Ms K Jones : The 2.9 is spread from 2015-16 through to 2017-18.

Senator BILYK: And 131.3 is over three years?

Mr Moraitis : The 128 point—

Senator BILYK: Sorry, 128.4 that is left out of the total of 131.

Mr Moraitis : A lot of that will be in the first year, obviously.

Senator BILYK: Any idea how much?

Ms Chard : Half. It is $63.5 million in 2015-16.

Senator BILYK: And then you expect the demand to slow down. Is that correct?

Ms Chard : It is likely that their funding would be distributed as payments on commencement of a grant—so on agreement of funding agreements between the Commonwealth and the provider—and then there would be another payment made towards the end of the grant when we are towards the end of the implementation period.

Senator BILYK: What will determine when that last grant is paid to the ISP?

Ms Chard : The will be determined on the key activities and milestones that grant applicants put in their grant application and are related to their implementation plans.

Senator BILYK: Can I get a breakdown of how that $2.9 million is going to be used? Is it for staffing and that sort of thing as well?

Ms K Jones : It will be a combination of staffing and systems.

Senator BILYK: Can I get a breakdown of—

Mr Moraitis : We can take it on notice.

Senator BILYK: Great. Why has Telstra applied for an extension of time to assist in compliance? Have they pointed to specific difficulties with regards to compliance?

Ms Chard : There are quite strict confidentiality provisions under the act that prevent us from discussing any individual provider's implementation plan.

Senator BILYK: Have you had any specific difficulties about people asking for extensions in regard to compliance that you can talk to us about? What sorts of things are people experiencing?

Ms Chard : They want to use the 18-month implementation period—sorry, I am not quite sure I understand the question.

Senator BILYK: Rather than specifically ask about Telstra, I am asking you to tell me if you have had any specific difficulties with regard to compliance brought to your attention.

Ms Chard : Not specific difficulties, but there are providers that wish to take advantage of the 18-month implementation period to implement their strategies to become compliant, which is consistent with the government's strategy.

Senator BILYK: Has the Attorney-General or the government consulted with the telecommunications industry regarding compliance with the new regime?

Ms Chard : Yes, extensively.

Senator BILYK: Extensively? How was that done?

Ms Chard : The department has engaged through the industry implementation working group, the IWG, which is a senior implementation industry group consisting of representatives from the department and from law enforcement and national security agencies as well as the telecommunications industry. The department has also attended a wide range of industry stakeholder forums. There has been quite substantial guidance material prepared that has been distributed to industry and published on the department's website. There have been emails that have gone out from the Communications Access Coordinator to industry groups, predominantly through the Telecommunications Industry Ombudsman. And we also have been managing a hotline where we have been fielding any inquiries from industry.

Senator BILYK: Is that hotline staffed from nine to five?

Ms Chard : It is staffed during normal business hours, yes.

Senator BILYK: How many calls have you had to it?

Ms Chard : I would have to take on notice the actual number of calls.

Senator BILYK: While you are doing that, maybe you could just take on notice where those consultations were held—

Ms Chard : Sure.

Senator BILYK: you said public consultations and things like that were held—as well as when the industry working group met and where?

Ms Chard : Yes.

Mr Moraitis : Yes.

Senator BILYK: You could? Thanks. What feedback has the government received from the industry on the implementation of the new regime?

Ms Chard : We have had quite positive feedback from industry in our engagement with them.

Senator BILYK: Can you just give me a bit more feedback than that—or not?

Ms K Jones : Obviously, in the work of the implementation task force, they are interacting every day with multiple representatives in the industry, and generally the feedback has been that they have found the advice and the assistance to be quite instructive, helpful and focused. We have as part of those engagements, though, received some questions that have helped us in further refining the advice and the guidance that we have provided. I think it has been a process where, by interacting with individual organisations as well as working through the representative groups—the Communications Alliance and others—we have continued to improve the materials and the information that we are providing to individual organisations.

Senator BILYK: Just quickly, if I can, Chair, I want to—

CHAIR: Your time is up. We can come back to you.

Senator BILYK: You can come back to me. There is only one more question.

Senator McKENZIE: I have some questions around the review of the national firearms agreement. I understand that the department has received over 500 submissions from stakeholders with respect to the review of the NFA. Those submissions closed on 13 August. Can you tell me what stage of the process we are up to at the moment and whether you are still receiving submissions?

Mr Anderson : That is not correct. We asked for submissions from 31 specific stakeholder groups. We have received, I believe, 20 as at about 22 September.

Senator McKENZIE: Is that 20 out of the 31 you requested as of the—

Mr Anderson : I think it was about 20 September.

Senator McKENZIE: So there was no public avenue for comment around the review of the NFA?

Mr Anderson : We have certainly received a wide range of emails, but there was no public call for submissions as such, no.

Senator McKENZIE: How many emails have you received from the public on this issue?

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

Senator McKENZIE: When you take that on notice, could you also summarise the issues raised.

Mr Anderson : I am not sure that that is actually going to be possible. There are quite a wide range of views in the community on email. Some of the emails are fairly pithy and not necessarily well expressed in terms of English and grammar. Some of them are quite threatening. Some of them are more comprehensively argued. To try to summarise all of that range of views would take quite a lot of resources.

Senator McKENZIE: Are we talking tens of emails, hundreds or thousands?

Mr Anderson : We are talking hundreds of emails.

Senator McKENZIE: So, for the hundreds of Australians who have taken time to contact the department on both sides of the NFA review argument, you are not bothering to actually consider those views?

Mr Anderson : We have looked at the emails to see what sorts of views were expressed.

Senator McKENZIE: Good.

Mr Anderson : Some expressed views that involved threats to my staff, so we certainly had regard to those.

Senator McKENZIE: No, I appreciate what you are saying, Mr Anderson, but I am sure that hundreds of the emails would not have been threatening your staff. I assume that you have read—looked at, as you say—hundreds of these emails and that you or your staff would have some rounded view of some of the issues, the top five issues, raised within those emails.

Mr Anderson : We could come up with the top five issues.

Senator McKENZIE: Could you give me the top five and the number of emails you received?

Mr Anderson : Certainly.

Senator McKENZIE: That would be fantastic, thank you. Could you just walk me through the process of the review, then.

Ms Smith : Essentially, after the Martin Place review, there was a recommendation relevant to the review of the national firearms agreement. As a result of that, there is a group called the Firearms and Weapons Policy Working Group, of which I am the chair. We have coordinated a number of meetings just of the group to begin with to—

Senator McKENZIE: Who is on that group—sorry, Ms Smith—while we are at it?

Ms Smith : On that group are representatives from Queensland police and New South Wales Police as well as the New South Wales police ministry. We have Victoria Police. We also have the Victorian Department of Justice and Regulation. We have Tasmania Police. We have South Australia Police. We have Western Australia Police, Northern Territory police—

Senator McKENZIE: Excellent! You don't want to leave them out.

Ms Smith : ACT police and the Australian Federal Police. We have the Australian Crime Commission. We have CrimTrac, and we have the Attorney-General's Department.

Senator McKENZIE: Right! A lot of justice and a lot of police officers.

Ms Smith : Indeed. The group met on a number of occasions to work through the Martin Place recommendations, of which there were four relating to firearms, not just to do with the national firearms agreement. We then determined that it was appropriate to consult with a broad range of people who were associated with firearms associations as well as groups who were associated with gun control lobbies or law councils and suchlike, so we have had a series of meetings with those groups to talk about the kinds of issues where they see that there would be a benefit in arguably amending the NFA for technical elements of it, not the fundamentals of the agreement, and also any concerns that have been raised by their associations. Generally, the people who have come to those consultations represent many, many thousands of members, so they are bringing quite—

Senator McKENZIE: Hundreds of thousands—800,000 law-abiding firearm owners.

Ms Smith : We had many different associations attending.

Senator McKENZIE: And the gun control lobby.

Ms Smith : Each has different representation.

Senator McKENZIE: Just on notice, if you could outline the meetings—not minutes or anything but just who, when and where—that would be great. Are there recommendations that you are taking to your policy working group at any point? Around the review of the NFA, are there a set of recommendations? How does that all work?

Ms Smith : The policy group has to report to the minister, and each of the members has to report to its ministers, and then those ministers will come together at a LCCSC meeting.

Senator McKENZIE: When does that occur?

Ms Smith : I think it is 5 November, and that is prior to any recommendations being considered by COAG.

Ms K Jones : Can I add that there is one further step in that process. There is a National Justice and Policing Senior Officials Group, which is the key officials mechanism that provides advice through to the Law, Crime and Community Safety Council standing committee.

Senator McKENZIE: I need a schematic!

Ms K Jones : Yes, there are a lot of acronyms here. The NJPSOG is the group that brings senior leadership of law enforcement and justice agencies together to provide the advice through to ministers, and that organisation will be consulted at a session in relation to any recommendations before they get to the ministers.

Senator McKENZIE: So it is from there to there to ministers to COAG?

Ms Smith : Correct.

Senator McKENZIE: When are we going to COAG?

Ms K Jones : At this stage it would be our expectation that it will be the first COAG meeting in 2016 for consideration of recommendations around any amendments to the national firearms agreement.

Senator McKENZIE: So, for any recommendations put forward to COAG, is that a unanimous position or is it a majority position of COAG before they are implemented or the NFA is changed?

Ms K Jones : I will have to take that on notice. I think COAG generally operates by agreement, and the Law, Crime and Community Safety Council, I think, generally does as well. But I would need to specifically take that on notice.

Senator McKENZIE: Yes, if you could. For the final decision on recommendations coming out of that group and that group heading off to COAG, could you take on notice whether it is by consensus or there is a deliberative sort of process. I would appreciate that. I would also like, on notice, how many staff you have working on this particular review and what level and fraction of appointment they are.

Import permits for firearms and firearm parts for Australian police and military, on my advice, are taking an average of two to three months to process. Given the increased national security footing, does the department foresee shortening these processing times to better support our law enforcement and defence forces?

Ms Smith : Certainly. We get quite a lot of applications for permits, not just from law enforcement and the Defence Force, and there is quite a long process involved in considering them. It is not a matter of a rubber stamp or anything like that; we have to seek advice.

Senator McKENZIE: Hardly, on my advice.

Ms Smith : As a result of the resources taken, it does take time, but certainly I have put priorities in my branch to move those through a lot quicker. I am actually being a decision maker on a number of them to assist the other decision maker that we have in the branch to try to move those quicker.

Senator McKENZIE: What are your aims, Ms Smith? What do you want to get it down to?

Ms Smith : I do not have a particular aim. I would like to get rid of any backlog we have, and I would like to be satisfied that consideration of anything is done in appropriate time to allow proper consideration.

Senator McKENZIE: What is the backlog at the moment?

Ms Smith : I would have to take that on notice.

Senator McKENZIE: If you could take on notice the backlog and what your goal is over what time frame, that would be great.

One of the issues we heard about in the Senate inquiry into illicit firearms was how different jurisdictions had incredibly unique and sometimes uncoordinated ways of talking with each other. So, if I wanted to go duck shooting in New South Wales, for instance, or drive over the Nullarbor with my gun in the back to go shooting in WA, I could not actually be assured that I would be a law-abiding citizen all the way. We have some jurisdictions that are using paper based systems, that are losing pieces of paper. We can have absolutely no confidence in the data we are collecting. That was one of the main recommendations out of the inquiry. Ms Jones, you are nodding your head to that. I was astonished and astounded. That NFA has been around for a while and we still do not have a system where jurisdictions are talking to each other and where we can have any confidence about firearms ownership and transfer and the integrity of the system. Do you have any comment to make about that and about some changes you might be looking at as part of the process to fix that?

Ms K Jones : I have participated in several of the meetings of the working group that Ms Smith has referenced. That is certainly one of the issues that has been raised by firearms association stakeholders that have attended those meetings. Certainly, in the course of ongoing discussion in the working group, we have raised that. We have raised issues around mutual recognition of permits and licences. I would say there are no easy solutions to that. It is one of the challenges of the Federation that each jurisdiction will commit different levels of resources in particular areas. It has certainly been a subject that we have looked at quite closely.

Senator McKENZIE: Is there a willingness by some jurisdictions to even admit that there might be an issue, that they need to move into the 21st century with record keeping?

Ms Smith : It might be worth noting that there are two other recommendations relevant to this very subject.

Senator McKENZIE: But this is the one I am interested in.

Ms Smith : Yes, and that is the prioritisation of the introduction of the National Firearms Interface and also conducting an urgent audit of firearms data holding. So there is no doubt that all of the states and territories have committed to those recommendations and are working towards how—you are quite correct that they all have very different holdings and they all talk about the need to have systems that talk to each other. So it has certainly been identified by all jurisdictions as a priority, and we are working together on those two recommendations.

Senator McKENZIE: Do we have a time line for an outcome?

Ms Smith : There is a time line, and I would prefer to take that on notice to make sure I do not get it wrong, especially as other agencies are involved.

Senator McKENZIE: Okay. Answers to questions on notice are due by 5 December.

Ms Smith : That is fine.

Senator McKENZIE: I am wondering whether you have looked at the Canadian and New Zealand systems. They also came up a lot. Rather than registering the firearm itself, you register the person as a fit and proper person.

Ms Smith : My team, who have been working with me on this, have looked at international models—

Senator McKENZIE: Because that is one of the gaps with us—you do not necessarily have to prove you are—

Ms Smith : I was just going to say that, as part of our consideration of all of this, we have taken in lots of different sources of information, including looking at the New Zealand and the Canadian models. I do not have the outcomes of that consideration, because we are still considering it all.

Senator McKENZIE: I want to quickly go to resources that Customs is using to inspect firearms at the border and get an understanding of whether you assess the economic impact of the way Customs officers are interacting with firearms dealers and importers.

Mr Anderson : You would have to direct those questions to the Department of Immigration and Border Protection.

Senator McKENZIE: Thank you.


CHAIR: We are dealing with outcome 3.

Senator JACINTA COLLINS: I understand that, in my absence, Senator Bilyk was going to ask questions in relation to Messrs Chan and Sukumaran, but we were told that that would be under outcome 3, so I will deal with those questions here now. In answers to questions put on notice at the last estimates, the AGD indicated that it was never open to the Attorney to seek the extradition of Messrs Chan and Sukumaran because it did not have the necessary assurances from the AFP and from the CDPP. Is that correct?

Ms Hawkins : How I would put it is that it is basically an operational question for the law enforcement and the prosecution authorities to work out whether or not they are going to issue an arrest warrant for someone and whether or not they are going to prosecute them. If there is an arrest warrant and there is an undertaking to prosecute, we would then be in a position to be able to consider making an extradition request.

Senator JACINTA COLLINS: And without those two things, you cannot?

Ms Hawkins : Correct.

Senator JACINTA COLLINS: So, to be clear: what the government is saying is that these preliminary steps from the agencies were never taken and, therefore, the opportunity for the Attorney to make a decision on whether or not to seek extradition never arose?

Ms Hawkins : In those three questions that there were responses to, I think the one that was actually answered by the AFP did note that we did not have an arrest warrant and an undertaking to prosecute.

Senator JACINTA COLLINS: So there was decision taken by the Attorney to either seek extradition or to decline to seek extradition?

Ms Hawkins : As I said, Senator, and as is said in those answers to the questions on notice from the last estimates, in the absence of an arrest warrant and in the absence of an undertaking to prosecute, we are not in a position to make an extradition request.

Senator JACINTA COLLINS: Just to be clear, though: no brief would have gone to the Attorney at the time seeking a decision?

Ms Hawkins : As I say, in the absence of an arrest warrant we are just not in a position to be able to do it. Australia has an extradition treaty with Indonesia, and in order to make an extradition request to Indonesia there needs to be an arrest warrant. So, in the absence of that, we are not in a position to make an extradition request.

Senator JACINTA COLLINS: So there would then be no decision by the Attorney or any other minister that would have been recorded because of these two preliminary steps?

Ms K Jones : The point is that necessary preconditions that are in the Extradition Act were not met so that we could consider putting forward an extradition request.

Senator JACINTA COLLINS: So, if there could not have been a consideration, there would not have been a brief seeking a consideration.

Ms Hawkins : Why I am answering it in the way that I am is that I know for sure that there was not an arrest warrant and there was not an undertaking to prosecute. That is why I am answering it in that very specific way.

Senator JACINTA COLLINS: This is why I am exploring further the assuredness that was in the answer to the questions on notice. It is true that this process in not set out in the Extradition Act, is it not? So, ultimately, the Attorney-General has a fairly broad discretion to seek extradition.

Ms Hawkins : There is a provision in the Extradition Act that says that the minister or the Attorney can make an extradition request. But then the Extradition Act is effectively supplemented by treaties that we enter into—hence me mentioning the bilateral treaty that we have on extradition with Indonesia, which does require that there be an arrest warrant in order to make an extradition request. So I would just say that it is not discretion as to whether or not there is an arrest warrant; that is actually a requirement in the extradition treaty that we have with Indonesia.

Senator JACINTA COLLINS: Thank you.

Senator BILYK: I want to ask about the Safer Streets Program. The ANAO investigation into the Safer Streets Program found that there was a significant disparity between the percentage of projects awarded funding in coalition seats and the percentage of projects funded in Labor seats. Can you provide a breakdown on these numbers?

Mr Anderson : Based on the amount of money that was actually awarded, 66.87 per cent of the money was awarded to projects in coalition seats, 17.62 per cent of the money was awarded to projects that straddled both coalition and non-coalition seats, and 15.51 per cent of the money awarded went to projects in non-coalition seats.

Senator BILYK: Sorry; could you just repeat those. So 66.87 per cent went to coalition seats and—

Mr Anderson : And 17.62 per cent went to projects that straddled coalition and non-coalition seats and 15.51 per cent of the money awarded went to projects in non-coalition seats.

Senator BILYK: The ANAO investigation found a number of shortcomings in the way the department assessed applications in relation to the program's criteria and objectives. Can you tell me what these shortcomings were?

Mr Anderson : Broadly, they found that, while we had guidelines for the program that provided a reasonable base for implementing the program, the department's administration of the process had some shortcomings and they resulted in advice to the minister not necessarily clearly identifying that some of the projects might not have fallen within the guidelines.

Senator BILYK: Can you be a bit more specific than that?

Mr Anderson : I do not have the words used by the ANAO here with me, Senator.

Senator BILYK: The report also identified a number of significant issues around how the department dealt with the assessment of applications that lacked sufficient evidence. Instead of pursuing this information with applicants, as was appropriate, what action does the ANAO report conclude the department took?

Mr Anderson : I am slightly confused there, Senator. The ANAO actually criticised the department for engaging with applicants to seek further information in a number of cases. They in fact said that we should have refused the applications rather than seeking further information.

Senator BILYK: The report found that the department made a number of assumptions about projects that lacked sufficient evidence. Is that what you were saying to me in your second answer?

Mr Anderson : The guidelines called for specific forms of evidence, and the problem is that that hard evidence in terms of statistical data broken down to, for example, street locations and things like that is often just not available. So applicants are not necessarily able to provide the sort of evidence that the guidelines were calling for. Some people provided, for example, letters from local police or media articles talking about incidents of antisocial behaviour and crime. The ANAO was of the view that we should not have accepted that as evidence.

Senator BILYK: Would issues around whether the project was in a crime hotspot have been part of the guidelines?

Mr Anderson : I do not think we actually used words such as 'crime hotspot'; I think we simply called for evidence to support the application. Sorry, it has been pointed out that we did actually talk about the program needing to ensure that local infrastructure could be rolled out in crime hotspots. But, when we actually talked about what we were asking people to provide we talked about needing to detail the crime prevention benefits. It really came down to the fact that it is actually very hard for people to provide detailed statistics and evidence of the extent of crime and antisocial behaviour in small locations when they are wanting to put up a CCTV in a particular street corner and that sort of thing.

Senator BILYK: This project only involves CCTV, doesn't it?

Mr Anderson : Primarily CCTV. It also involves some other forms of security infrastructure, such as lighting, for example.

Senator BILYK: What percentage would be lighting?

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

Senator BILYK: Can you just give me a breakdown of what is CCTV, what is lighting and what is whatever else that may be included?

Mr Anderson : Yes. Certainly it is predominantly CCTV. I can save the time by saying that it is almost all CCTV. But, if you want us to take it on notice, I can do that.

Senator BILYK: Did the guidelines ask about the ability of projects to reduce crime rates?

Mr Anderson : The guidelines noted that the department would be seeking to determine the impact the project would have, including on the criminal or antisocial behaviour that had led to the application being made. But we are also partly talking about perceptions of crime.

Senator BILYK: How many applications did the ANAO investigation find did not meet the program requirements as stated in the guidelines?

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

Senator BILYK: You do not have that information there?

Mr Anderson : No, I do not.

Senator BILYK: The consideration of risks and weaknesses is important in the assessment of any project's quality. What findings did the ANAO report make about how the department dealt with this issue and how this was reflected in its advice to the minister? Were the risks and weaknesses of applications adequately reflected in advice to the minister or not?

Mr Anderson : I am not sure I understand the question. The ANAO said we had quite a reasonable risk matrix, which had been prepared at the start of the program, but that we did not necessarily apply the mitigation strategies that were identified in that risk matrix when we looked at the applications and then gave advice to the minister.

Senator BILYK: You had a matrix but you did not apply it?

Mr Anderson : That is what the ANAO found, yes.

Senator BILYK: How did that impact your allocation of funds?

Mr Anderson : It did not impact the allocation of funds specifically, but it impacted the advice that was given to the minister making recommendations about particular applications.

Senator BILYK: Can I not assume that, if it affected the advice to the minister, it would have an impact on the allocation of funds?

Mr Anderson : Not necessarily. This was a closed round. All of the applications were identified during the election period. If grants were not to be made to those identified applications, they would not then have been made to other locations.

Senator BILYK: The report also found significant shortcomings in the way funding agreements were concluded by the department. Can you tell me what those shortcomings were?

Mr Anderson : In a nutshell, the ANAO thought we did not provide sufficient precision and detail in describing the steps that were to be taken, the milestones—and also in talking about the evaluation.

Senator BILYK: They were not happy with the evaluation?

Mr Anderson : They were not happy with how we provided for how we would then evaluate the impact that the particular projects had had.

Senator BILYK: How did you?

Mr Anderson : Typically we simply required audited statements of expenditure to attest to the expenditure having been carried out in accordance with the project.

Senator BILYK: Did the report say what they thought you should have done?

Mr Anderson : It just said we should have been more detailed in setting out what we were asking for.

Senator BILYK: Why did the department decide to finalise funding agreements without setting out what the project was to deliver or when it was to be delivered?

Mr Anderson : The issue here is the level of detail with which we set it out. We did in every case set out milestones—what had to be done by what dates. We talked about the expenditure that went with each of those. But the ANAO felt we should have gone much further than we did.

Senator BILYK: I am a little bit confused. Are you trying to tell me that you think, that from the department's point of view, everything was all right? Do you think the ANAO was correct in their report?

Mr Anderson : The department did accept the ANAO's recommendations, although one of them it simply noted. But you asked me whether we did actually say what was required to be done. For each project we did say what was required to be done, but the ANAO was of the view that we should have used a greater level of specificity and detail than we did use.

Senator BILYK: So, for example, you just had, 'Put up CCT lights by 30 January'—or something like that. Is that what you are saying?

Mr Anderson : The first stage might have been something like to secure council approval by a certain date. The second stage might have been to procure the infrastructure by a certain date. The third stage might have been to erect it by a certain date and the fourth stage might have been to connect it to a police station. The ANAO took the view that that was not sufficient.

Senator BILYK: How does this lack of clarity in funding agreements affect the department and the minister's ability to provide adequate oversight or monitor the implementation and outcome of these projects?

Mr Anderson : The first thing we are saying is that the shortcomings are specific to this particular grant round as well. The department has done a great deal of work with respect to how it administers grant programs generally, and it carried out a whole-of-departmental grants reform project that led to some internal material being released shortly after this program commenced. So, when the ANAO comments on the shortcomings, we are talking specifically about this grant round, not about public grant rounds. What it does do is make it harder for the department to be absolutely clear that the overall outcomes of the project have been delivered, because in a number of cases, according to the ANAO, we did not seek sufficient evidence of the specific outcomes that would be achieved in each local setting, and therefore we cannot be sure that there will be a tangible reduction in crime, or a tangible decrease in perceptions of crime, in those situations.

Senator BILYK: Why can't you be sure of that?

Mr Anderson : Because we did not have the level of evidence that the ANAO said we should have had of the problem in the first instance that the projects were intended to address.

Senator BILYK: Was the minister aware that funding agreements often did not adequately set out what the project was to deliver or where it was to be delivered?

Mr Anderson : The minister does not see the individual funding agreements.

Senator BILYK: So he was not aware of any of that?

Mr Anderson : That is right. He does not see the individual funding agreements.

Senator BILYK: The report also notes that since 2007 there have been significant developments in the grants administration framework. This includes the compilation of a broad range of materials to inform program design and implementation. So why were these frameworks not followed in relation to the Safer Streets Program?

Mr Anderson : There are a range of reasons.

Ms K Jones : If I could perhaps assist in responding to that question, I think as a department we have recognised that in some aspects of the administration of that round of this program there were shortcomings in the way that we approached it. We did access those whole-of-government materials that are there to guide departments around best practice for grants management. I think we had some challenges in the way that we properly implemented that guidance material, and I think we have recognised that there needs to be more work that we do within our department to ensure that teams that are responsible for managing grants programs have the appropriate support and assistance, so we have developed additional guidance.

We have established a grants community of practice network where we bring together officers from all over the department who have responsibilities in the different programs—we have quite a number of varied programs in the department—to ensure that people are aware of the types of guidance materials that are available, and that we are assessing our grants programs against a checklist of best practice in all the different aspects of grant administration and constantly reviewing our grants to make sure that they do comply with best practice.

Senator BILYK: There were five recommendations made around assessment processes, among those being the development of procedural and related documentation that will lead to the adoption of sound administrative practices—I think you have just talked about those—and implementation of eligibility checking processes. Have you implemented those?

Mr Moraitis : All the recommendations were accepted.

Senator BILYK: All the recommendations were—

Mr Moraitis : Four accepted and one noted.

CHAIR: Senator Bilyk, your time has expired.

Senator BILYK: I have a few more.

CHAIR: Okay, we might have to come back to you, then.

Senator XENOPHON: This relates to outcome 1, group 3, program 1.7: it relates to Sirul Azhar Umar, who is currently in immigration detention at Villawood. It is a highly publicised case. Can anyone assist me in respect of that? I can give the context. Sirul fled Malaysia following allegations of his involvement in the 2006 murder of Altantuya Shaariibuu, a 28-year-old Mongolian translator, who is alleged to have had information in relation to alleged corrupt payments within the Malaysian government relating to, of all things, a submarine contract.

Ms Hawkins : I hope we can assist.

Senator XENOPHON: Thank you, Ms Hawkins. Briefly, I have some specific questions to put to you. Mr Sirul's convictions for the murder of Altantuya were reinstated in January this year, and he was sentenced to death by hanging. However, by that time, Sirul was already in Australia and has since been placed in detention. Sirul allegedly told migration officials, according to an Al Jazeera story that was recently broadcast, that he was acting under orders when Ms Shaariibuu was killed. There were allegations in the Al Jazeera story that he asked for millions of dollars in order to stay in Australia and to not bring down the Prime Minister of Malaysia. Earlier this year, the former Malaysian Prime Minister, Dr Mahathir bin Mohamad, joined with Sirul's mother and called for a full investigation of the circumstances regarding Ms Shaariibuu's death. As I understand it, he cannot be extradited to Malaysia because he is under sentence of death and that breaches our undertakings not to send someone back to a country where they face the death penalty. Is that correct, Ms Hawkins?

Ms Hawkins : I am aware of the case that you are talking about in terms of those media reports. I am aware of a range of media reports about that case. The government does not comment publicly on whether or not we have received an extradition request or whether we have made an extradition request.

Senator XENOPHON: I had not actually asked that question, but I will ask it now, if I may.

Ms Hawkins : You may.

Senator XENOPHON: Has Australia received a request from the Malaysian government for the extradition of Sirul Azhar Umar?

Ms Hawkins : What I can say to you is that it is the longstanding practice of successive governments that we do not make any comment about whether or not we have made or received an extradition request until such time that anyone who might be the subject of an extradition request is actually brought before a court or is actually arrested.

Senator XENOPHON: May I ask, in terms of general principles: if a person is under sentence of death in another country, what is the general practice of the Australian government in relation to such an extradition request, without referring to this specific case?

Ms Hawkins : Without referring to any specific case, I can say to you that the Extradition Act makes it very clear that the Australian government would only extradite someone to face charges for an offence that attracts the death penalty if the country were to give the Australian government an undertaking not to carry out that death penalty. That is in the Extradition Act.

Senator XENOPHON: Can you advise me as to the current immigration status of Sirul Azhar Umar?

Ms Hawkins : A question that goes to the immigration status of a person would have to go to the Department of Immigration and Border Protection.

Senator XENOPHON: I know that you feel that you are constrained from referring to an individual case. Is that right? Perhaps I can ask you some general questions then. Was that nod a 'yes', that you cannot talk about an individual case?

Ms Hawkins : As I say, I cannot refer to any extradition case in which a person has not actually been arrested or brought before a court.

Senator XENOPHON: I can put this in general terms about when a person is in immigration detention and serious allegations are made. Apparently, Mary Ann Jolley, the Australian based Al Jazeera journalist who broadcast the story, said the story was broadcast with text messages, allegedly from Sirul's phone, saying that he was seeking a large amount of money—extortion or blackmail, to characterise it briefly. If there are broad allegations that a person in detention is engaged in blackmail or extortion, is that the sort of thing that would be investigated? In other words, if someone is undertaking, or is alleged to be involved in, a criminal act, would that be investigated?

Ms Hawkins : Any issue that might go to any unlawful conduct would be a law enforcement matter.

Senator XENOPHON: Right. I will ask a couple of questions and I will put them in general terms. In terms of who makes the decision as to who is allowed to visit a detainee at, for instance, Villawood, is that something that is determined by the immigration department or the Attorney's office—rather, the Attorney-General's Department. I am not suggesting the Attorney knows much about this particular case at all. I am getting that stoic look from him and that shake of the head! I am trying to understand who makes the decision as to who is allowed to visit a detainee. Is that a decision that is made by the immigration department? Can it be made at the request of another government? What is the protocol in respect of that?

Ms Hawkins : Questions that go to how an immigration matter is handled are for the department of immigration. I am not in a position to comment on that.

Senator XENOPHON: In terms of general issues of security, given former Malaysian Prime Minister Mahathir Mohamad has intervened and has been quite outspoken in relation to this case in terms of what are said to be explosive allegations made by this detainee at Villawood, are issues of security of a detainee at Villawood things you can assist me with or do you suggest I go to the department of immigration?

Ms Hawkins : Senator, I need to repeat my answer to the previous question that any matter that is about an immigration case is for Immigration.

Senator XENOPHON: Very well. I think I have taken it about as far as I can. Thank you very much.

Senator LUDLAM: I am interested in some follow-up questions on the National Facial Biometric Matching Capability. I have some returned questions on notice, so thank you very much for that. Thank you for returning them in enough time that I could get through them before tonight's session. That is appreciated. The Minister for Justice, Minister Keenan, has said that this capability is being informed by independent privacy assessments. Could you describe what they are?

Mr Rice : Yes. We have conducted one already, which has been around the subject of the design of the interoperability hub. You might recall from the answers that we provided to you, Senator, that there is essentially a router, a hub, in the middle which connects the various users of the system. We are in the design phase for that infrastructure at the moment. We have done a privacy impact assessment through an independent provider in consultation with the Office of the Australian Information Commissioner and also with state privacy commissioners, where they exist. We have done a draft management response on that and we are expecting to take that privacy impact assessment to a couple of ministerial councils at a meeting in early November. Beyond that, we would expect to publish that. That is the first of a series of privacy impact assessments.

Just in the last couple of days we have sought, through a procurement process provider, to provide a second series of privacy impact assessments, which go to some pilot activities that we are using to finalise the design of the system. Going out to market, we will commence those and expect to have those privacy impact assessments completed in a couple of phases, but completed early next year. Beyond that, in terms of follow-on privacy impact assessments, our design of the system has it that, for any use that an agency might care to make of the system, we will be requiring them to do a privacy assessment. I expect there will be a series of continuing privacy impact assessments on the system.

Senator LUDLAM: It sounds like it is expanding in quite a modular way, so if somebody proposes a use of the system that has not been tried by a previous agency you would conduct some kind of assessment on that in sequence.

Mr Rice : We would hope that not every single exercise is a greenfields exercise. We may well find, having done a privacy impact assessment already, that an agency that is moving into the joining phase might find that it can draw on previous impact assessments.

CHAIR: Senator Ludlam, I will just pause your clock. The committee has just had a private meeting.

Senator JACINTA COLLINS: That is a very generous description!

CHAIR: We have assessed that we certainly will not get to the Federal Police tonight, so if there are any Federal Police officers here who do not enjoy the entertainment they can go home. We will hold onto ASIO for a little while longer, but if it looks like ASIO are clearly not going to be called tonight we will let them know later. But the Federal Police can go. Thank you—if there are any of you here at this stage—for your attendance. This is not to say you may not be called. It is up to Senate rules whether we have a spillover on some other day, but that is a matter for another day. So that is what we will do, and we will review the question with ASIO shortly.

Senator LUDLAM: Can I put this one to you, Senator Brandis, just briefly, because I do not think I asked it directly to you last time. It does not appear from any of the material that I have got back from the department that there is any intention—as there was, for example, with data retention—for changes in legislation in order to bring this capability into effect. Is that a correct assessment?

Senator Brandis: I am sorry. I am not quite following your question.

Senator LUDLAM: The government does not intend to introduce legislation to bring this capability into effect.

Senator Brandis: Which capability?

Senator LUDLAM: The National Facial Biometric Matching Capability.

Senator Brandis: I am not aware that it requires legislation.

Senator LUDLAM: Yes, I have not come across anything that would indicate that. I am just seeking confirmation.

Senator Brandis: I think you are right.

Senator LUDLAM: Thank you. Are we modelling this on a system used in any other jurisdiction? I guess I would point you primarily towards the United States, which in some cases is at the leading edge of this sort of technology. Is there anything like this existing anywhere in the world, including the US?

Mr Rice : In terms of joining up the range of existing biometric holdings that we are doing across a range of agencies and jurisdictions, we are not aware of anything. We have become aware of something which we think is occurring in Brazil, and we are just trying to run that to ground. You would be aware, as you are saying, of some big announcements in the US, particularly around the FBI. That tends to be within a portfolio, if you like. I think we are attempting something which is somewhat more complex.

Senator LUDLAM: Okay, that is useful. The FBI—since you have gone there—accepts a 20 per cent error rate in its next-generation identification program, so that would falsely identify one in five images—a false positive or negative. What kind of range of inaccuracy would you consider acceptable in a system such as this?

Mr Rice : It is a risk story, and we are talking about a range of functions here. We are talking about a verification function where essentially you have a range of biographical information, generally working off quite established biometric holdings like driver licence images, passports and so forth. We would expect, because the capture of those images is in a controlled environment, that we are going to get quite a high accuracy rate, but at the end of the day that will be something that the users of the system determine themselves for answering their risk-based questions—whether they be questions of determining whether an individual has presented to have a credential issued previously.

Senator LUDLAM: All right.

Mr Rice : The other function is around the question of an unknown individual—a photo but no known biographical details. Often those photos are taken in poor-quality environments, and they do introduce error into the equation. What we are saying through this system is that there is an error rate. It is a specialised capability to deal with that error rate. The existing facial recognition processes that are in places like the Department of Foreign Affairs and Trade, Immigration, AFP and so forth have specialised individuals who deal with the fact that there are error rates in these systems, and we are thinking that that will be a requirement for any use of that more specialised identification purpose—that it needs to be supported with the specialist resources that deal with that kind of error rate.

Senator LUDLAM: So I guess the error rate drops. If the holding is taken under a controlled environment like a passport photo, for example, or presumably as facial recognition algorithms improve, you get better at the poorer quality images.

Mr Rice : It does. The real trick, if you like, is capturing it in a quality environment—

Senator LUDLAM: in the first place. All right. In answer to the question that I put to you—your reference number is BE15/044—from last estimates, 27-28 May, you have proposed:

… (the Capability) will provide a mechanism for secure, automated and auditable sharing of facial images between those agencies …

Firstly, will using facial images—and you appear to be using the term 'biometrics' almost interchangeably; biometrics obviously go to a much broader range of—

Mr Rice : It does: to fingerprints, iris and other kinds of modalities—that is the term. We are just referring to face as the modality in this capability.

Senator LUDLAM: Presumably, this is all eventually going to end up being linked up with fingerprint datasets, irises and DNA holdings that are held by various agencies. It would be a bit odd if they stayed silent.

Mr Rice : They are not part of our plans at this stage. At the end of the day, it is a data transfer exercise. So the architecture may permit that in the future, but it is not part of the plans at this stage.

Senator LUDLAM: The other word that you have used there that I want to draw to your attention is 'auditable'. What are the audit processes that you have in mind thus far?

Mr Rice : We are designing those at the present moment. We would be seeing that there would be an audit log process within the hub, if you like, the router. We would be recording the message and they would go to who is posing the query, what is the nature of the query, who is it being provided to. We would see that occurring in the hub. We would also expect the normal processes of recording, querying and responses and the purpose for making the responses—and the purpose goes to things like lawful purpose—would be recorded at the querying agency. So, if the police were mounting a query, there would be an auditable process at their end as well. But we will have an auditable process in the hub itself, and that is being designed at the present moment. It is not set in stone at this stage.

Senator LUDLAM: I want to go to 'use' cases now. You have proposed a couple thus far that made a certain amount of sense to me, but I want to go to a couple to try and work out what is in scope and what is out of scope, because these things can change quite rapidly. Firstly, is there any law that would prevent the system from ingesting further biometric information—let's stick to photographs at this stage—from publicly available sources like social media or other internet sources?

Mr Rice : In terms of ingesting them, in terms of the legal purpose it would go to the legal permissions that the user agency already has to either collect or disclose information. It is possible that still images out of those kinds of environments which you talk about could be put into the system. That will be a choice for the users of the system, and their making that choice will be on the basis of their existing legal permissions.

Senator LUDLAM: Can I put one example to you. I am not trying to drift off into hypotheticals here, but I want to know what is in scope and what is out. If I get hypothetical, I am sure that either you or the secretary will shut me down. State police departments, for example—or probably a wide number of agencies by now—use programs that scrape social media profiles for faces. Facebook has its own facial recognition software at work, but there are ways of harvesting quite large numbers of photographs at social media sites, which is, if not illegal, at least a grey area. Police agencies already have their own holdings of material obtained that way. Is there any reason why such imagery would not end up inside the scope of this hub?

Mr Rice : Perhaps if I can back up for a moment and just talk to you about the use cases that we have pulled out, because we have consulted with all the police and law enforcement agencies in the country, all the road agencies who provide driver's licence images and also agencies like Immigration and the Department of Foreign Affairs and Trade. If we talk about categories of use cases, one of them is a situation where an agency has a name and some other biographical information and just wants to have the photograph extracted from another data holding. So that is one. We call that the retrieve function.

Senator LUDLAM: Before you move on—

CHAIR: Sorry, Senator Ludlam, your time expired some time ago, so I might have to stop you there. We will come back to you.

Senator LUDLAM: Everybody else is getting 15 minutes. Is there a reason that I only got six?

CHAIR: Well, I will waste some time and explain it again.

Senator LUDLAM: Senator Xenophon and I are separate individuals.

CHAIR: I do these in 15-minute blocks—for government, two; Labor, two; crossbenchers and Greens, one—roughly in that order. I have been a bit lenient of late. I indicated to you that Senator Xenophon had 15 minutes, but, if he finished short, you could have the rest of his. I actually offered you to start your 15 minutes. I then said that if you wanted to do that we would go for the rest of Senator Xenophon's, I would then go to the government and come back to you for your 15 minutes, which is very generous, for you and any other—

Senator LUDLAM: You are the chair. I will sit tight.

Senator LINDGREN: These questions relate to data retention, particularly in terms of its privacy impacts. Can you explain whether data retention creates a honey pot of information for hackers please?

Ms K Jones : In terms of the material that will be held by providers, the first point I would probably make in response to your question is that many providers are already retaining some of the material that it is now mandatory for them to retain as a result of the passage of the legislation. So there are a range of obligations that they are already alive to in terms of protecting that data. They have to comply with the Australian privacy principles for data retained to meet their obligations under the Privacy Act. The data retention legislation also creates a new obligation for providers to protect and encrypt the data that they retain under the obligation.

The point that I would also make is that the government has been developing legislation around the telecommunications sector security reforms which it has been consulting with the telecommunications industry for some time. That is about working with the telecommunications industry to establish some robust protections around their networks and the information that they hold within their networks, to ensure that they are secure.

Senator LINDGREN: Can you update us on how the compliance regime is working?

Ms K Jones : We can. We did answer a range of questions from Senator Bilyk about that. Are there any specific questions that you have in relation to that? Obviously, we are in the implementation phase of the legislation, but we are happy to answer any questions around that.

Senator LINDGREN: Basically around any implementation plans and applications for exemptions or variations.

Ms K Jones : We can provide answers around that, but, as I said, we answered very detailed questions earlier. I can ask Ms Chard to respond again?

Senator LINDGREN: No. I will get it off Hansard. That is fine. Thank you.

CHAIR: We will break.

Proceedings suspended from 21:29 to 21:48

CHAIR: I call the committee back to order. Senator Canavan was in continuation. Senator Canavan, the minister is not here, so do not ask any bring-down-the-government questions until the minister returns.

Senator CANAVAN: That will cut away about half of my questions, Chair.

Mr Moraitis : The AIC and AUSTRAC are still waiting, should they be released?

CHAIR: Senator Collins has generously said that she will put her questions on notice to the Australian Institute of Criminology, so they can go. We are checking with Senator Whish-Wilson on the Australian Transaction Reports and Analysis Centre. Senator Collins is happy for her questions to Australian Transaction Reports and Analysis Centre to be put on notice. I think ASIO can go, but just not at the moment. We might review that again in 15 minutes or so. AIC can definitely go, with our thanks for your coming along and our apologies for this. I do not want to make excuses, but these are the rules of the Senate, and, while anyone has any questions to ask on any element of this, I am powerless to stop them. Thanks for coming. My apologies for your wasted time, but we appreciate the cooperation of the senators to at least let that one go and perhaps the other one too.

Mr Moraitis : Thank you.

CHAIR: We will review it again. Senator Canavan is now in continuation. I acknowledge that the minister is not here, but I have asked Senator Canavan not to ask any questions that might bring the government down while the minister is not here.

Senator CANAVAN: We will save them for later.

Senator JACINTA COLLINS: Save them for the joint party room.

Senator CANAVAN: I have some questions on counter-terrorism activities. Could you provide an update on the number of Australian citizens or former Australian residents who are currently involved in fighting in Iraq or Syria, particularly with the Islamic—

Ms K Jones : We would normally refer those questions to ASIO.

Senator CANAVAN: In terms of the government's response to foreign fighters and foreign conflicts, is that something you can help me with, or would that be with ASIO? I also have questions on government policy.

Ms K Jones : We can certainly talk about some of the legislation.

Senator CANAVAN: Okay. I also have questions on that. I think you had an official come to the table. I thought you might have broad information on this; I am not asking for anything specific. In the past we have been provided with certain broad numbers of Australians who have found themselves in these conflict zones. Do you have an update on those numbers as a department?

Ms K Jones : We do.

Senator CANAVAN: I thought you might have the broad level. As I say, I am not asking for any detailed information on specific cases.

Mr Gifford : If you do not mind, I will refer to my notes here in terms of the statistics you are looking for. Around 120 Australians are currently fighting or are engaged with terrorist groups in Syria and Iraq. These are a part of over 25,000 foreign fighters. At least 32 and potentially up to 42 Australians are believed to have potentially been killed in the conflict to date. Approximately 30 Australians have returned from the conflict. About 170 people in Australia are providing support to individuals and groups in the Syria and Iraq conflicts through financing and recruitment, or are seeking to travel. You may have heard public reporting in terms of ASIO's number of high-priority investigations. I think that figure usually sits at around 400 but, again, we would refer those particular questions to ASIO for them to respond.

Senator CANAVAN: Regarding the 120—I have not followed the statistics closely, but that does not seem to have increased substantially over the past few months. Am I correct?

Mr Gifford : The question with the statistics is that they are statistics that refer to how many people are assessed to be in the area at any point in time. The 120 is not a static number in terms of 120 specific individuals who might actually be in the conflict; the number itself reflects some people have gone to and returned from the conflict. As I say, some people may have been killed in the conflict. So, while the overall number itself may appear to be static, there is some movement in terms of the people in and out of the conflict area.

Senator CANAVAN: I am particularly interested in whether that flow, if you like, not the stock, of Australian residents or citizens going to Iraq or Syria has stabilised somewhat or is it not increasing at the same rate in the past few months. Is that the assessment on those figures?

Mr Gifford : I would be slightly reluctant to answer that question. That is more of an assessment for ASIO to make in terms of what that number looks like.

Senator CANAVAN: All right; I will leave that there. Broadly, what has been the government response to try to limit and stop Australians from going to these conflict zones?

Mr Gifford : We had a very active legislative year last year where four pieces of legislation were brought forward that broadly related to addressing the most pressing gaps in terms of the counter-terrorism framework. The principal piece of legislation was the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act, which made amendments to over 20 pieces of Commonwealth legislation. There were tools in there that were particularly about stopping the flow of foreign fighters. There were some changes made to the likes of the Australian Passports Act and the Foreign Passports Act, which made it easier for the foreign affairs minister to suspend a passport to then give time to ASIO to look into security concerns in relation to any particular individual and to give ASIO time to furnish an adverse security assessment and lead to the passport's cancellation. That is certainly a tool that we have seen used against a number of individuals who have otherwise been seeking to travel to the conflict area.

Senator CANAVAN: How much additional funding has been allocated to counterterrorism activities through those changes?

Mr Gifford : I think the initial figure was an additional $630 million, which was announced last year. There have been some subsequent announcements, which I think take that global figure to $1.3 billion over the forward estimates.

Senator CANAVAN: Thanks for that. I believe there is a fifth tranche of legislation as well. Just remind me—is that bill before the parliament or is it in draft form?

Mr Gifford : It is not currently before the parliament.

Senator CANAVAN: Is it in exposure draft form?

Mr Gifford : At the moment it is still under development. Certain pieces of it are in exposure draft form to the extent that they are being shared with the states and territories. To give you a sense of what that looks like, the Intergovernmental Agreement on Counter-Terrorism Laws from 2004 says that any time we change the provisions which relate to counterterrorism in part 5.3 of the Criminal Code, we do so only with the express agreement of the states and territories. Some of the provisions which are being contemplated for introduction later this year are currently with the states and territories as part of that consultation exercise.

Senator CANAVAN: What is the timing of that in terms of their responses? When do you expect, not just their responses, but when we would finalise the bill and introduce it to parliament?

Mr Gifford : The Attorney-General has announced that effectively we are looking towards introduction of the next tranche of legislation, I believe, in November this year.

Senator CANAVAN: And you are working very closely with the states and territories through that consultation?

Mr Gifford : Very much so.

Senator CANAVAN: Will there be changes in state and territory laws required as a result of this?

Mr Gifford : It depends on which provisions actually go forward. It is a bit hard to answer that question at the moment without having the agreement with the states and territories and also subject to some further policy approvals as well. If I can give you an example, our control order framework is purely a beast of the Commonwealth level. Our preventative detention order regime, for instance, has complimentary state and territory provisions as well. So if there are amendments to the PDO regime, for instance, it would require some changes to state and territory legislation.

Senator CANAVAN: Is that model legislation, or does it mirror automatically? Do the states physically have to pass laws to change those aspects?

Mr Gifford : It is complementary legislation, so the states and territories do need to make their own amendments as well.

Senator CANAVAN: Just on control orders that you mentioned, it has been discussed in other fora, maybe yesterday, about the potential reduction in age below 16. Can you give us an update on what change the government has proposed in that regard, in relation to the control orders?

Mr Gifford : The Attorney-General has indicated that the government is considering an idea of looking at the age for control orders. At the moment control orders are limited so that you cannot ask for a control order—they are sought by the AFP—on a person younger than 16 years of age. It is fair to say that in the current environment we are seeing a range of younger people who are potentially going to pose a level of threat which would justify the use of control orders. That is certainly a tool which is being contemplated for introduction as part of those further reforms.

Senator CANAVAN: What do the control orders themselves allow the authorities to do?

Mr Gifford : Control orders are issued by an issuing authority and they have a set of conditions and restrictions which aim to address the threat that a person poses. They are only available when a person poses a threat in terms of a terrorist act. The conditions and restrictions are then designed to try and minimise that threat. For instance, if there was a concern with a person associating with another individual, there are restrictions on those associations. You can have curfews as part of the control order conditions and restrictions. You can also have a person be subject to the use of a tracking device under a control order as well.

Senator CANAVAN: Are they reviewed by a judicial review at all?

Mr Gifford : It is a member of the Federal Court who issues a control order.

Senator CANAVAN: Is there any update you can provide us on the Parramatta shooting and the arrests that have subsequently occurred? What is the status of those particular actions by the state police?

Mr Gifford : That is probably a question on which I would defer to the AFP, being an ongoing investigation.

Ms K Jones : Could I mention a couple of things? Mr Gifford has outlined the work in relation to legislative reform. Our department is also responsible for some work with international partners around working with them on their legislation to strengthen their legislation so that they are better equipped to be able to deal with counterterrorism within their own jurisdictions. Some of that work goes to strengthening their laws around international crime cooperation so that they can undertake investigations and prosecutions. Of course, there is also the enhanced capability that the additional funding has been directed towards in the AFP, ASIO, the Australian Crime Commission and AUSTRAC. That was part of that $630 million package from last year. Outside our portfolio, in Immigration and Border Protection, there are the counterterrorism units at the airports and other initiatives that have been implemented over the last 12 months.

Senator CANAVAN: I believe there was a meeting around countering violent extremism last week. Could you give us any outcomes from the meeting and what those next steps would be?

Senator Brandis: This was the meeting convened by the Prime Minister in Parliament House?

Senator CANAVAN: I believe it involved federal, state and territory governments as well.

Senator Brandis: It was an officials meeting, although the Prime Minister opened it. Mr Keenan, Senator Fierravanti-Wells and I attended the first part of the meeting as well. My staff attended throughout the day. It was a very, very successful meeting, which enabled the Commonwealth policing and security agencies and state and territory policing and security agencies and senior officials to share perspectives and to share knowledge and experience of various techniques. Obviously the problems in different state jurisdictions are different. Problems in Western Sydney are quite different from problems in other large Australian cities. In relation to where that shared knowledge and experience goes, perhaps Ms Jones, who attended and led the officials at the meeting, could elaborate more fully.

Ms K Jones : The meeting discussed a range of critical issues around what support can be given to families in the school environment. We looked at issues about better coordination between levels of government. Obviously the states and territories have a very significant role to play in working with communities and delivering services on the ground, but the Commonwealth wanted to explore how we could complement the activities of the states and territories and work well with them. We recognised the need for more coordination around research and evaluation of what works and does not work in the countering violent extremism space, both internationally and domestically. We are still in a fairly evolving space when it comes to addressing violent extremism. There are a lot of new initiatives, but we need to make sure that we are evaluating them to test that they are working well. We also looked at a range of issues around communication, meeting the challenge of the online reach of ISIL, in particular, and the impact that that is having domestically in Australia. We looked through all those issues. The next steps in the process are for the Commonwealth to continue to work with the states and territories with a view to delivering some concrete proposals that first ministers can consider at the next COAG meeting, which we understand will be held in December this year.

CHAIR: Senator Ludlam?

Senator LUDLAM: I think Senator McKim and I are going to tag-team, if that is all right?

CHAIR: I indicated this a long time ago, Senator Collins.

Senator JACINTA COLLINS: Senator Ludlam only had a part of—

CHAIR: He had Senator Xenophon's. This is the Greens and crossbenchers, for 15 minutes from now.

Senator LUDLAM: All right. I will rip through some of these, and then I am going to hand on to Senator McKim.

CHAIR: And you are next, Senator Collins.

Senator JACINTA COLLINS: Thank you.

Senator LUDLAM: Sorry for the musical chairs. I have a couple more questions on biometric capability and then I might get one or two in on data retention. I do not know whether it was you who got cut off midsentence, or me—

Mr Rice : I was just going to say: do you want me to continue my answer?

Senator LUDLAM: Yes. Could you just reboot from where you were.

Mr Rice : Sure. I was talking about generic use cases that we have explored with potential users of the system at the Commonwealth and state level—

Senator LUDLAM: In the interests of time, could you table some documentation that sets out those generic use cases for us, so that I can ask some other specific stuff. I suspect I am going to find it is useful, and I suspect that it is going to eat up the whole 15 minutes to do it well.

Mr Rice : We can take that on notice.

Senator LUDLAM: If you could, thanks—just your reference cases. I am particularly interested in the push and pull. I might come back to that and just get through a couple of questions very quickly. What categories of offences will this tool be used to investigate, and will there be any gravity-of-conduct thresholds like those we debated extensively in data retention? Will you be able to chase down a litterer, for example?

Mr Rice : We are thinking that the identification capability that I talked about—I have a photo but not a name; the one-to-many type question—would be for very serious offences. It is a very serious capability, so we are talking at the higher end of the spectrum. In terms of the verification—which is that I have a name and a photograph and I am seeking to confirm whether that occurs—there might be a lower threshold. But what we would see with that verification service is probably a mix of consent based usage and also law enforcement usage. But this is not something that will be available for broad usage within agencies.

Senator LUDLAM: Who is going to decide what those thresholds are?

Mr Rice : That is something that we are working on with our state and territory colleagues and Commonwealth colleagues at the moment. We expect that there will be decisions to be made by the owners of the information—the biometric databases—and also the users, and we would expect to see ourselves involved in those decisions as well.

Senator LUDLAM: What about the owners of the faces? It sounds as though this is all going to be handled behind the scenes by the agencies, maybe with a bit of input from the A-G's Department, getting some privacy assessments done. What about the public? What about the parliament? What about the people whose faces have been recorded at least a hundred million times already in the holdings that you have access to? Where do they come in?

Mr Rice : Like I said before, the usage of the system is on the basis of existing legal permissions, law enforcement permissions or permissions in the Privacy Act around consent to use personal information.

Senator LUDLAM: But when I last had my passport photograph taken I could not have dreamt of this capability coming into existence, so I did not consent. What if I go on the record now and do not consent to having my passport photo used? How is that process going to get fed into your consultations?

Mr Rice : We are looking at being very transparent about the use of the capability. We would expect that there would be appropriate disclosure in an agency's use of the information.

Senator LUDLAM: Does the capability have its own web presence? Rather than tying up your time here and now, where can I go to find out your scope, which agencies are incorporating? At the moment the debate is largely being run in the media—there were a couple of very good pieces on 7.30 a couple of weeks ago—and in budget estimates. But where do I go to find what you have put into the public domain thus far?

CHAIR: Just before you answer: we are not going to get to ASIO, so I think any ASIO officers who are here could leave, with our thanks for waiting around. Unfortunately, for AUSTRAC: you have drawn the short straw. We will keep you here just in case. The likelihood of you getting on is remote, but we will keep you here. But ASIO people can go.

Mr Rice : We do not have a web presence at this present time. In terms of information that is on the public record: it is in the responses to your previous questions on notice. It is the media release. It will shortly be the privacy impact assessment and those that follow on from it.

Senator LUDLAM: I should acknowledge that there was also a ministerial statement a couple months ago, I think, that Senator Brandis made.

Mr Rice : That is right. So there is a selection of commentary around what this system will do.

Senator LUDLAM: There is commentary. But there are a whole heap of decisions being made about how this capability is going to be used, by who, for what category of offences, and there appears to be no public process at all for ordinary individuals or for the parliament or its committees to feed into that. I think you have just confirmed for me tonight that that is the case.

Mr Rice : Like I said, there are a number of privacy impact assessment processes which we think will expose the protections that are required.

Senator LUDLAM: The public do not get to participate in those, do they? Let me put this another way: are there any public consultation processes envisaged for any element or any aspect of this capability as it develops?

Mr Rice : At this stage we are contemplating consultation with the non-government sector for follow-on privacy impact assessments.

Senator LUDLAM: Just for the purposes of clarity: who would you characterise as being in the non-government sector?

Mr Rice : At this stage, and this is something that we have to put some more thought into, we are looking at some of the generic non-government organisations that are concerned with privacy.

Senator LUDLAM: Did you say 'generic'?

Mr Rice : I would say there are a few foundation type—

Senator LUDLAM: The Australian Privacy Foundation—

Mr Rice : Those kinds of bodies. I do not want to name them per se, because it is something we have to talk through with our provider about—the most appropriate bodies. We have also taken a bit of advice from within the department and also from the Information Commissioner about the best people to talk to.

Senator LUDLAM: I am going to let this go. I could go on for a couple of hours. I will put some questions on data retention on notice. I have asked you to provide a little bit of information in writing, but could you include anything at all that you think would be appropriate to disclose—not just to me, but to the public. You have clarified for me some quite important information. It might clarify and narrow the scope and settle some people's fears, but I suspect it might just aggravate others. I will let it go there, Chair, and will yield to Senator McKim, if that is okay.

Senator McKIM: Thank you, Senator Ludlam, and thank you, Chair. I have questions on the CVE program. I might just start by asking about the Directory of Countering Violent Extremism Intervention Services, which is on the department's website. Could you tell me how many service providers are listed on the directory currently, how many times the directory has been used and what financial and human resources were used and are used to establish and maintain the directory.

Ms K Jones : I apologise: the other Ms Jones is the person who has the detail on this, but she missed the first part of your question. Sorry to take up your time.

Senator McKIM: That is fine. No problems. Obviously the directory is not public, which is why I am asking these questions. How many service providers are listed on the directory, how many times has the directory been used and what dollar and human cost was used to establish and is being used to maintain the directory?

Ms C Jones : If I can put that question into the context of the program, the new CVE funding and programs that are being established now and rolled out across the country are about establishing new ways of case-managing individuals. They are state-led programs that are being established and are now operational in a number of jurisdictions. Part of that is about working out what the motivations and drivers are that might have led an individual down to a particular point of being vulnerable to some of the extremist ideology, and that differs on a case-by-case basis. We have done a lot of research to try and understand what the motivations and drivers are. Largely, where that research has landed us is that there is no one profile, so no one easy mix.

What that means is, in terms of designing case management approaches, there are assessment tools that are being developed that allow us to work out what those motivations and drivers are and then work out the best case management services that might meet the needs of that individual. A lot of those case management services are broad, government-type services, which are already available to government—for example, counselling services and psychological services. Those kinds of things were not where we had a gap.

Where we had a gap was with what we do when it comes to spiritual counselling, for example, or programs to help connect individuals back to their community more broadly—peer group mentoring, leadership programs et cetera. We established at the earlier part of this year a grants initiative, which was a small part of the intervention program and was about how we build capability to deliver those kinds of community based services. Once that capability is built, with this directory we are trying to get a picture of the kinds of community organisations we might partner with as part of that case management for individuals participating in these intervention programs.

Not all of the case management services are on the directory. As I said, it is about building the picture of the niche capabilities that are complementary to the ones that we can already access through the government. A lot of the organisations that have been awarded grants will become part of the directory. To see what else is out there we are in the process of mapping nationally existing services where we are not providing them with a grant. It is a work in progress.

Senator McKIM: Can you tell us how many service providers are currently on the directory and how many times the directory has been used?

Ms C Jones : We are really still in the middle of mapping right now—

CHAIR: Before you answer that, I will stop the clock. Senator Whish-Wilson has agreed to put his questions to AUSTRAC on notice.

Senator WHISH-WILSON: If I could ask for a quick turnaround, that would be appreciated. Thank you.

CHAIR: No conditions! So thanks to the AUSTRAC people for coming along and staying, but you can an hour earlier than the rest of us.

Senator McKIM: I understand it is a work in progress and thank you for your overview, but how many are currently listed on the directory and how many times has it been used?

Ms C Jones : I will have to take that on notice. As I said, the process of developing the directory is still a work in progress and we are midway through mapping, so I do not have a set number yet.

Senator McKENZIE: Okay. I will put all the questions I asked at the start of this exchange on notice. I might offer Senator Siewert an opportunity with the brief moments that we have left.

Senator SIEWERT: Thank you. I want to ask some questions about preventing violent extremism and radicalisation in Australia. Did the minister's office sign off on the final version of that publication before it was published?

Ms K Jones : I think it was finalised prior to Ms Jones coming into that role, so I just need to take it on notice in terms of what the approval process was for that.

Senator SIEWERT: Could you take on notice the approvals process in terms of approving the final version and whether the minister eyeballed it before it was published?

Ms K Jones : We will take that on notice.

Senator SIEWERT: I am particularly interested in the example of the process that you used, the shark photo, how you made that decision and when you made the decision to take that photo off.

Ms C Jones : The purpose of the booklet is to provide some clear information to people about what radicalisation is and what it is not. The page that that photo appeared on was about making some clear statements that peaceful protest is a legitimate form of expression. The photo was intended to demonstrate exactly that. There is some text highlighted on that page which makes that statement really clearly.

Senator SIEWERT: But the heading under it is, 'What is radicalisation?' and you have got the photo of the shark protest.

Ms C Jones : Yes, and then the first paragraph below that heading talks about what are legitimate, reasonable forms of expression. We took it down when we had the reaction. That document had been out in circulation for some months, but, obviously in response to the more recent concern about the photo and misinterpretation about what its intention was, we took it down so as to avoid any further confusion.

Senator SIEWERT: What date was that?

Ms C Jones : I will take that on notice, but I believe it was on the Friday. It was soon after the media.

Senator SIEWERT: Did you test in a focus group or general exposure the document for the very thing that obviously the public has now responded to?

Ms C Jones : We did. There was extensive community consultation in a number of rounds that went into the development of the document. What did not go out more broadly was the final, published version with the imagery.

Senator SIEWERT: In terms of the case examples, there has been some pushback not only on using that photo but also on using Karen as the example. Again, how did you come up with that example? Did you test that?

Ms C Jones : We did. The case studies are based on real stories of individuals who were interviewed by Monash University, who actually developed a lot of the text and content for the document. They are intended to demonstrate a range of people of different ideological motivations who are on some point of a trajectory that might be considered radicalisation to violence. They are intended to show people at different stages of that pathway, recognising that not everyone who is radicalising to violence will become a violent extremist or a terrorist. The case studies were intended to show a cross-section of ideologies and people at different points of that pathway. They are used as a conversation guide to have discussions around, as I said, what radicalisation is and is not.

Senator JACINTA COLLINS: I too want to spend some time on countering violent extremism. Senator Siewert, I may come to some further questions about the radicalisation booklet as well. Indeed, I may need to put some on notice. Before I do that I want to take up the discussion that was occurring earlier in relation to this evolving policy space and what shift in our understanding may be occurring from our experience and the experience of others, as you indicated—our international partners.

I thought I would start with our experience to date with the Living Safe Together program. It was announced in August of last year but the grant funding was not delivered until May of this year. Is that correct?

Ms K Jones : I think that is broadly correct in terms of the grants program; but, of course, the grants program is one small component of the broader program.

Senator JACINTA COLLINS: With specific regard to the grants program at the moment, can you explain why it took so long for the program to be implemented?

Ms K Jones : I will refer to Ms Jones to provide a bit more detail, but, of the key elements of the Living Safe Together program, I would say the most significant component is the intervention program that we have established. The model for that is that the Commonwealth works with the states and territories. We work with them to develop protocols, processes and assessment tools. We fund state coordinators in, I think, all jurisdictions or close to all jurisdictions.

Senator JACINTA COLLINS: Is that separate from the grants program or part of it?

Ms K Jones : I am coming to that. In the process of designing and developing the intervention program we recognised that in order for it to be effectively delivered we were going to have to partner with community organisations who could assist around the intervention program. One of the issues for many of these organisations is around building their capability to work with people within the community who are at risk. I think it would be fair to say that there is a lot of expectation placed on small community groups about what they can do to assist in this space. We determined through the course of designing that program that, if we were going to be relying upon certain organisations to partner with government, we needed to do some work to assist them to build up their capability to do that. That is why the grants program essentially came on later in terms of the development of the intervention program.

Senator JACINTA COLLINS: I have looked at an answer—I think to Senate question on notice 1933 from Senator Wong—where you discuss some of the issues of what I would describe loosely as the learning to date and the case management approach which is being applied here as well. Can you provide any further information on how that is operating, how it is working and what impact it is having?

Ms K Jones : We are in very early days still with this. Ms Jones may be able to add more detail.

Ms C Jones : In terms of the status of the programs, we have operational programs now in New South Wales, Victoria and Queensland, funding agreements in place with Tasmania and the ACT and similar funding agreements close to being finalised with the Northern Territory and WA. As I said, there are some cases that are being actively managed now. But, as the other Ms Jones mentioned, it is quite early days. So in terms of evaluating whether we are having success with an individual, that kind of case management is not going to show results in a very short space of time; it is about behavioural change, and that takes time. The case management model we have developed draws heavily on international experience, in particular of the UK with their Channel program. With some of the cases they have had come through, they are looking at anywhere between eight months and a number of years before they see a result where they are satisfied that an individual is able to be exited from a formal program.

Senator JACINTA COLLINS: Has the UK program been evaluated?

Ms C Jones : It has been place for a number of years now and has demonstrated success.

Senator JACINTA COLLINS: You mentioned success in a single-case sense. I am curious about the success in a broader sense.

Ms C Jones : In terms of individuals being considered to be successfully diverted from being prepared to use violence to support their ideology?


Ms K Jones : In terms of an assessment as to whether this has reduced the number of people who have been radicalised or whether it is reducing the number of people who are on the path to radicalisation, there have been some evaluations. I would like to take it on notice to come back to you in relation to the Channel program and the specific evaluations that have been done there. We are looking closely at the UK experience but also at some European experience in countries like Denmark, the Netherlands and Germany. It has been our experience, from observing international partners or other countries, that no single model has been applied that other people are picking up. The approaches are very varied. Sometimes they are tailored very locally around cities. In the United States, for example, they have three cities—Minneapolis, Los Angeles and Boston—where they are trialling some CVE programs but it is quite different in each of those cities. So in relation of evaluation, which—as I think I mentioned to Senator Canavan—was one of the things that we looked at with the states and territories when we met last week, there was a recognition among all of us that there is more we need to do in terms of research and evaluation and, in particular, sharing experience between the Commonwealth and the states and territories around evaluation. As I have said, we are in a greenfield space here. No-one, I think, in any country—we were at the United Nations for the CVE meeting there two weeks ago and I think the general consensus is that no-one has the total answer to this and you do need to be trialling different approaches locally, regionally and nationally.

Ms C Jones : I might reinforce that we consider this particular program and initiative to be one of our safety nets. We have programs that operate in the prevention space around how we can build strong and resilient communities where the ideologies cannot take hold to begin with. That is very much the domain of the programs of the Department of Social Services. Where these CVE-specific programs fit in is that we ask: 'What do we do with the individuals who are already on a trajectory where they look like they are prepared to use violence to support their views? How we divert and rehabilitate them?' It is not so much about the prevention layer; it is about the next step and, hopefully, how we divert them before we need to have a law enforcement response. Very much the strategy and the approach that we take is to ask, 'How do those various layers of safety nets work together overall to, hopefully, act to prevent or reduce the numbers of individuals seeking to travel?'

Senator JACINTA COLLINS: Ms Jones, responding to your earlier point, when I was in The Hague recently the point made to me was that, because of the various factors that you have indicated, the lesson seems to be that the breadth of the response is an important factor, that no single solution is going to deal with this problem and that we need to be looking at a range of flexible responses. We do not clearly know, with respect to a range of different tools, how effective they will be at solving these issues. That includes the legislative citizenship-type responses all the way down to the countering violent extremism casework-type programs as well. A fairly sophisticated broader response is what seems to be required. Is that the type of feedback that you have received internationally?

Ms K Jones : It is very consistent with the feedback I have received. It was underlined by the meeting that we had with the states and the territories last week. Here in Australia, different levels of government have expertise in delivering different types of services and programs. Last week brought together not only the different levels of government but also a variety of agencies from each jurisdiction. First, we had ministers and representatives from law enforcement and, as the Attorney mentioned, intelligence agencies, education departments and multicultural affairs departments. We had a really good mix of social policy and social program agencies and law enforcement and justice agencies. One of the critical things to come out of that meeting was that we need to broaden out the response so that it is a whole-of-government response, bringing in all the appropriate agencies. In Australia, with different levels of government having different responsibilities, it is also about making sure that they are all working together.

Senator JACINTA COLLINS: That is the point, I think. I noted in an article by Mark Kenny in The Sydney Morning Herald on 2 October that he described:

… a marked departure from the Abbott government's holistic approach, which treated the grooming and recruitment of young Muslim men as synonymous with the home-grown terrorist threat …

Whereas Senator Fierravanti-Wells was indicating a view that the two issues should be separated. She said:

We have looked at this issue as a national security issue, with perhaps some social overtones, [whereas] I believe, with our young people at risk, this issue is a social issue with a national security perspective.

In some ways, she was suggesting a broader perspective than the national security one. Is that demonstrating a shift in approach?

Senator Brandis: I will take that question. The answer is no. Anybody who has spent a lot of time dealing with this issue understands that there is a range and variety of appropriate responses which are not mutually exclusive or inconsistent but in fact complementary. I agree with what Senator Fierravanti-Wells says, but what Senator Fierravanti-Wells has been saying does not constitute any shift of thinking. As the lead minister in this area, I can tell you that for as long as I have had responsibility—which is more than two years now—that has been precisely my thinking.

Senator JACINTA COLLINS: So you are indicating that you disagree with the description that Mark Kenny used in describing a 'marked departure'?

Senator Brandis: I think Mark Kenny is a journalist. I do not think Mr Kenny professes any expertise at all in this field.

Senator JACINTA COLLINS: I did not say that he did.

Senator Brandis: What Mr Kenny might think is of no interest to me at all, as a matter of fact.

Senator JACINTA COLLINS: I do not think I was asking you whether it was of interest to you.

Senator Brandis: You seem to be creating a dichotomy between two alternative views. There is only one view you have quoted by a person with knowledge of the field, and that is Senator Fierravanti-Wells. Senator Fierravanti-Wells does have a great deal of knowledge of this field. I have a lot of respect for her views. She is, of course, my parliamentary secretary, and I speak with her about these matters very frequently. I endorse the view that she has expressed, but it is not a change of thinking. It has always been my view and has always been the government's view.

Senator JACINTA COLLINS: Yes, I think you said that, Minister. You do not need to repeat and expand on that point.

Senator Brandis: I am sorry. I thought you misunderstood, because you seemed to cavil when I suggested that the—

Senator JACINTA COLLINS: No, there was no misunderstanding from me at all. It must be getting late for you. Getting back to the Senate question, point 2 in that answer is about the funding to states and territories and the investment in establishing a research base and the development of risk-assessment tools. Does that come from the funds that you described previously as going to states and territories? Is that the basis of that investment, or is there something else that is being referred to there?

Ms K Jones : Can I clarify which question—

Senator JACINTA COLLINS: I am back on the question I was on earlier, which is No. 1933.

Ms K Jones : I am afraid we do not have a copy of that in front of us. You were questioning where—

Senator JACINTA COLLINS: This was in response to a question seeking further information about countering violent extremism. There are some things we were just talking about—the case management approach was in the first point. The second point indicates that the government is providing funding to states and territories to support the establishment of diversion programs and has invested in establishing the research base and the development of risk-assessment tools to understand the radicalisation process and how best to address it. I am attempting to understand where that is founded.

Ms K Jones : That is part of that intervention program, and I will ask Ms Jones to talk about that.

Ms C Jones : In the centre, as I referenced before, in terms of understanding the motivations and drivers of individuals there has been quite a degree of research done over a long period of time into profiles of various violent extremists and what can we see that is in common, and, therefore, what can we see that are risk factors that might help us identify whether someone might be on that particular trajectory. That is the research base we have been investing in for some time, together with Monash University GTRC, the Global Terrorism Research Centre, and it underpins a lot of the tools that we have developed. It underpins a lot of the research that is the basis for a range of training, education and awareness products that we produce. But, in particular, it has been used to develop tools that allow us to work out what the motivations and drivers are of individuals, and how we can best design a case-management approach, or what services we might connect them to and what sort of help they need to address the drivers that have created the vulnerability to begin with. We need to directly address the ideological factors, obviously, but it is not just about sitting down one-on-one with a spiritual counsellor once a week and then sending them back into the same environment they have been living in and came from. What are the other factors around them which we need to consider? It might be about keeping them in school, it might be about employment factors or it might be about an underlying mental health or emotional wellbeing issue. All of those factors need to be addressed as well, but it varies on a case-by-case basis. The research we have invested in and the tools that have been developed help us to make sure that case management is most likely to be successful.

Senator JACINTA COLLINS: Rather than asking about the detailed elements of that research—and thank you for that information—at this point I am more interested in: where are the centres of research that we are working with domestically? And what is the nature of the funding and of the projects we are investing in?

Ms C Jones : We have a research panel that was established to support national research needs and gaps, which we have had in place for around four years now. That is essentially like a procurement panel; it allows us to procure research from a range of established researchers who have applied to be part of that panel. There are a broad range of academic institutions who are part of that particular panel.

We also hold a number of regular academic round tables, and we have had a number this year. We held one earlier this year to talk about the new challenge of propaganda and to seek views on that—again, from a wide range of institutions. I could not tell you now exactly every research institution that was represented at that table, but we could take it on notice. We had a subsequent follow-up round table hosted by the counterterrorism coordinator, Greg Moriarty, within the Department of the Prime Minister and Cabinet. We actually have a follow-up to that round table being held in Melbourne tomorrow, which I am due to attend, being co-hosted by Deakin University. So there are a range of ongoing discussions and engagements with academic institutions. We attend a number of conferences and workshops. There is a regular dialogue with a broad range.

We have also recently invested in the establishment of the Australian Intervention Support Hub, which is a joint initiative of ANU and Deakin University. There is also some funding within the establishment of that for them to partner with other institutions to draw on the particular expertise they might need to take forward particular projects to get the cross-disciplinary base that we need.

Senator JACINTA COLLINS: You have referred to the research panel. I would be interested in the membership of that and also perhaps in what research the panel has, in a sense, allocated. What research the Commonwealth is funding or assisting in this space interests me.

Ms C Jones : I would have to take on notice what we have invested in, because it has been over quite a period of time—a large range of proposals over the last number of years.

Senator JACINTA COLLINS: Perhaps I will leave with you a relevant period. I do not want to burden you with this issue of how far you go; it makes the process difficult. I am more than happy for you to summarise or condense it if it makes sense in how you describe it, but that is the interest I am hoping you will respond to on notice.

Ms C Jones : Yes.

Senator JACINTA COLLINS: Let us go back to the area we were addressing earlier in relation to the radicalisation awareness kit. Do I take it from some of your earlier comments, Ms C Jones, that the Monash centre you mentioned was drawn upon in the design of this kit?

Ms C Jones : That is correct.

Senator JACINTA COLLINS: Who else was involved?

Ms C Jones : Involved in the consultation process?

Senator JACINTA COLLINS: I suppose we could go through the whole lot—the consultation process and then the design.

Ms C Jones : Monash University was contracted to develop the kit for us, the objective being to produce an information package to raise awareness for the general public.

Senator JACINTA COLLINS: So it was not targeted at schools?

Ms C Jones : No, it was designed as a general information resource for the general public. It was shared with state and territory education ministers in response to requests for information, including from the Australian school principals association and others, to help them understand the challenge. It was designed as a general information kit for public use. The fact sheets which are part of the—

Senator JACINTA COLLINS: Is that why some people might think it was designed for schools—because there was a request?

Ms C Jones : I think, because it was provided to education ministers—that is correct—to help them support schools in understanding the challenge.

Ms K Jones : I could just add to that, Senator. In terms of its use by teachers, it is responding to what we know is a need that is out there in the schools; they are looking for tools to assist them. That was one of the issues that were discussed in depth at the meeting last week with the states and territories. There is a separate body of work that is being undertaken by education departments, working up through the education ministerial council—and I do not know if I have the right official name for that, but it is broadly education ministers—who were looking at developing some further materials in that space to assist teachers—

Senator JACINTA COLLINS: Quite separate from this material?

Ms K Jones : In addition to this material, yes.

Senator JACINTA COLLINS: Okay. So this material was not going to duplicate the work that state education departments were developing?

Ms K Jones : No.

Senator JACINTA COLLINS: And this was designed for a broader audience, not necessarily just schools?

Ms C Jones : The fact sheets have been available for some time. They have been available on our website and in broader circulation since mid last year actually—a number of them. The booklet was published in April and has been in use since June. There was a broad consultation process involved, as I mentioned, including a number of roundtable consultations involving academics and community stakeholders in April to June 2013 initially. May 2014 was the final round. The feedback from that process finalised mid-2014.

Senator JACINTA COLLINS: Can you tell me who the community stakeholders were from the Australian Islamic community?

Ms C Jones : The names of them? I will take it on notice.

Senator JACINTA COLLINS: You have mentioned some of the earlier work of the Monash centre in relation to the drivers of radicalism and extremism. Has any of that work touched on the community perceptions of the underlying of radicalism and extremism?

Ms C Jones : To what extent? I am not sure I understand the question.

Senator JACINTA COLLINS: To the extent that this deradicalisation kit is designed to affect perceptions in part. I am wondering what work has occurred in that space.

Ms C Jones : It is designed to get factual information out to help a range of stakeholders. It is not a unilateral strategy, however. Our approach to engaging with individuals with their families and friends with the front-line providers who might have a role in influencing individuals, such as teachers or others within the community more broadly—those in official capacities, police and others. There is a strategy for each of those relevant stakeholders in terms of what we need to do.

We recognise that information alone is not sufficient; it actually needs to be accompanied by training and supports, and they are the other elements that we are still working through at the moment. There has been community awareness training that we have delivered through the Australian multicultural foundation for some time now. That has been continually rolled out to a number of community groups across the nation. It is aimed at supporting some of the general information but giving them more context and talking them through it.

We are in the process of developing similar training that might support teachers, and that has been considered through this broader body of work, which we just referenced, being led by departments of education to look at the range of initiatives that are available to schools and whether they are sufficient and what more might need to be done.

Senator JACINTA COLLINS: I asked you this earlier and you have taken it on notice about which stakeholders from the Australian Islamic community have been consulted in this process. Has the community made any recommendations to government on the prevention of violent extremism and terrorism on the home front? Firstly, I suppose, I should ask: can you describe a particular approach as being represented by the Australian Islamic community? And, if so, what is it?

Senator Brandis: Senator Collins, the Australian Islamic community is not a single entity. There are—

Senator JACINTA COLLINS: That is part of the point of my question.

Senator Brandis: Your question assumes that the Australian Islamic community has a common view about this matter—

Senator JACINTA COLLINS: I do not think you were listening to me, Minister. I put that caveat in the question.

Senator Brandis: If you wouldn't mind, Senator, please, not interrupting me—

Senator JACINTA COLLINS: If you wouldn't mind listening, Senator, you would understand that I addressed that issue in my question.

Senator Brandis: I was listening, and in the question you just asked you asked the officer for the view of the Australian Islamic community.

Senator JACINTA COLLINS: And then I said—

Senator Brandis: Senator Collins, please—manners—please.

Senator JACINTA COLLINS: No, I am asking for your manners.

Senator Brandis: Senator Collins, there is not a common or uniform view among the Australian Islamic community. Indeed, the Australian Islamic community is a very various community. It represents numerous community groups, numerous nationalities and ethnicities, which have a variety of views. One of the points of the community engagement with which my officials—and the AFP and various state and territory officials and police forces and so on—try to do is engage in this very multifaceted, various community in different ways that are most suitable and effective with the many various elements of it. To suggest that there is a common Islamic community view—

Senator JACINTA COLLINS: Which I did not—

Senator Brandis: Which you did in—

Senator JACINTA COLLINS: I did not—

Senator Brandis: Which you did in your question, Senator Collins—

Senator JACINTA COLLINS: I did not—

Senator Brandis: Which you did in your question—

Senator JACINTA COLLINS: And look, I will place the Hansard in front of you again if I need to today—

Senator Brandis: Please don't raise your voice—

Senator JACINTA COLLINS: Unfortunately, Senator Brandis, these matters are on Hansard and the record will demonstrate what my question was—

Senator Brandis: We are dealing with very important matters—

Senator JACINTA COLLINS: Yes, I know. That is why it is alarming that as minister you are being so juvenile—

CHAIR: Order. What question are we dealing with?

Senator Brandis: Throughout my answer you have not ceased to talk across me.

Senator JACINTA COLLINS: Nor have you.

Senator Brandis: Senator Collins, I am answering a question.

Senator JACINTA COLLINS: No, you are answering the wrong question. You are answering a question that you misheard rather than—

CHAIR: Senator Collins, you have asked a question. The minister has the right to answer it as he will. If you challenge—

Senator JACINTA COLLINS: He does not have the right to verbal me.

CHAIR: I do not think he is verballing you.

Senator JACINTA COLLINS: He has—

CHAIR: You may not agree with the answer but—

Senator JACINTA COLLINS: Several times today actually.

CHAIR: You can ask the question again if you do not like the answer. Let's just continue. Senator Brandis.

Senator Brandis: I have the call? Thank you, Mr Chairman. So there is not a uniform Muslim or community view. And we are doing our best—the Australian government through its agencies and my department, and other departments as well, and the state and territory governments through their relevant officials and police forces and so on—to engage with the various elements of that community, not to derive a common or uniform view, but to understand what the many different parts of the community want and need in order to protect all of us from a common problem.

CHAIR: Senator Collins?

Senator JACINTA COLLINS: Thank you, Chair. I think I will go back to what my question was. I certainly was not suggesting that there was a uniform view. I was attempting to understand what the views, uniform or otherwise, might be that have been provided by the Australian Islamic community to the government. My question was: has the Australian Islamic community made any recommendations to the government on the prevention of violent extremism and terrorism on the home front? Could the officers from the department also please describe to me the nature of those representations, I will say, in the general.

Senator Brandis: Numerous members of the Australian Islamic community, numerous groups within the Australian Islamic community, have been engaged by the government at many levels.

Senator JACINTA COLLINS: And what have their recommendations been?

Senator Brandis: If I may finish, please, without being interrupted.

Senator JACINTA COLLINS: We are just going on with another diatribe. We have such limited time.

Senator Brandis: They have been engaged by me—

Senator JACINTA COLLINS: This is an important issue, Minister, and once again you are avoiding providing any detailed information.

Senator Brandis: They have been engaged—

CHAIR: Hang on!

Senator JACINTA COLLINS: It is just a farce!

CHAIR: The question was: have Islamic communities raised issues? Is that it?

Senator JACINTA COLLINS: I am asking what those issues are.

Senator Brandis: And I am going to tell you, if you would stop interrupting.

CHAIR: The first question was: have they been raised?

Senator JACINTA COLLINS: Yes, and what are they?

CHAIR: The minister—

Senator JACINTA COLLINS: So far we have had 10 or 15 minutes of the minister's rant on a side issue that he created, rather than an answer—

CHAIR: No, he is saying there have been—

Senator JACINTA COLLINS: at 10.50 in the evening.

CHAIR: The minister said there had been a number of different views from people.

Senator JACINTA COLLINS: Yes, and he has still failed to provide any meaningful characterisation of what they might be.

CHAIR: He is still going. Keep going, Minister.

Senator JACINTA COLLINS: It is just a farce! No wonder we get things like this radicalisation awareness kit, because your comprehension is so limited.

CHAIR: Hang on! Let us just finish the first question. Yes, there have been a number of—

Senator JACINTA COLLINS: Metadata, the arts community—no wonder he is losing portfolios left, right and centre.

CHAIR: Senator Collins, do you want the answer or don't you?

Senator JACINTA COLLINS: Yes, I do. I just have little faith in getting it from the minister.

CHAIR: We have got the first part.

Senator JACINTA COLLINS: Maybe the department could be more helpful.

CHAIR: We have got the first part—there have been a number of submissions from Islamic leaders—and Senator Brandis is getting onto the second part: what was the general view of them?

Senator Brandis: Do I have the call, Chair?

CHAIR: Yes, you do.

Senator Brandis: Thank you. Numerous members and various elements of the Islamic community have been engaged by the government at different levels. They have been engaged by me and by Senator Fierravanti-Wells in a series of community consultations. They have been engaged by officials of my department in various fora, some of which have been described to you by the officers during the course of these questions. They have been engaged by the Australian Federal Police. They have been engaged by state and territory police. They have been engaged by relevant departments of state and territory governments. They have been engaged in relation to a number of issues. Those issues include the appropriate shape and structure of counterterrorism laws. Those issues include questions of law enforcement. Those issues include support for the community—for example, through the community programs that have been designed and tailor made, in particular, to identify at-risk members of that community and especially at-risk youth within that community. They have been engaged in relation to programs that have been generated within the community like, for example, the Bachar Houli program, which supports young Muslim men who wish to participate in AFL—and the NRL has an equivalent program.

Senator JACINTA COLLINS: Yes, we discussed that one in the last estimates, Minister.

Senator Brandis: They have been engaged in relation to various civil society programs. They have been engaged on the issue of online radicalisation and how to deal with it. They have been engaged on the issue of the role of particular important elements of the community—whether they be religious leaders and faith leaders, whether they be role models, whether they be parents, whether they be teachers—and how those individuals can assist law enforcement agencies in identifying at-risk youth. As you would, I hope, expect, there has been a variety of views in relation to those topics. It would take literally days to catalogue all of the different views that have been expressed, but those are the topics that have been covered and those are the principal fora in which those topics have been covered. We have been doing this exhaustively for a long time, Senator.

Senator JACINTA COLLINS: The minister has avoided providing any characterisation of an outcome for a range of processes he has just, in part, repeated from what the department told us earlier.

CHAIR: He has just said it would take three days to give you a response to all the views, and I do not want to sit here for three days.

Senator JACINTA COLLINS: Neither do I.

Senator Brandis: Let me give you an example of the volume, Senator. When we consulted in relation to counter-terrorism law reform, we received hundreds of views, both orally in forums and in writing, from the Muslim community, and not two of them were identical.

Senator JACINTA COLLINS: Are you saying that you are unable to generalise, in any sense, what recommendations have been put to the Australian government from the Australian Islamic community about how best to deal with the prevention of violent extremism and terrorism on the home front?

Senator Brandis: I do not think it is possible to generalise at that level of generality. There have been numerous views put on the range of issues I have identified for you, and other issues as well.

Senator JACINTA COLLINS: Let's go down to one specific example, the one that we were discussing, which is the development of the radicalisation awareness kit. What feedback was received by the government from the various members of the Australian Islamic community that may have been consulted about how to deal with that matter, and how was that represented in what subsequently transpired?

Senator Brandis: That is something the officials can respond to, but you understand, Senator Collins, that is a much, much, much narrower question than the question you asked a few minutes ago.

CHAIR: Senator Collins, do you want the answer?

Senator JACINTA COLLINS: Yes, I do.

CHAIR: Who is going to respond at the minister's invitation?

Ms K Jones : Senator, if I could briefly note, in terms of the process of developing the awareness kit, there were various Muslim community organisations that we spoke to that helped us build a better picture of exactly what we needed to include in this kit. In terms of the specifics of that and what changes that led to in the content of the material, I probably need to take that on notice. What I can say though is that these types of tools that assist the authorities in organisations, first responders, teachers, or counsellors, are precisely some of the things that the community has been saying to us that we need more help with that can focus on prevention. One of the key themes that has come in from the community is, 'Let's direct more effort in the prevention space. Let's have the right tools that can help community organisations and first responders and people in schools and in hospitals and doctors.'

I think it is fair to say that the further progression of this kit reflects some of the need that has been articulated by different organisations within the Islamic community for this type of material to assist and focus on the prevention space. Certainly there are issues around that, and they have talked to us in terms of what more we can do to help community based solutions. That is consistent with international experience. It is not all about governments doing things in this space; it is about governments creating the environment where community organisations themselves can play a primary role. Those are some of the themes that have been coming from consultations with the Islamic communities. The issue around an intervention program to have an effect on individuals to try to stop them from getting to the most serious endpoint of the radical pathway and our approach to developing that program was informed by views expressed to us from the community that this was a big gap and we obviously needed to be doing more work in that space.

Senator JACINTA COLLINS: Which was a big gap?

Ms K Jones : The intervention where people have demonstrated some signs of moving down the radicalisation pathway, but perhaps are not at the point of the most intensive law enforcement response.

Senator JACINTA COLLINS: I am sorry, Ms Jones, I suspect that you had moved onto the more general matter. At this moment I was talking to you about the radicalisation awareness kit rather than the intervention program more generally.

Ms K Jones : Right.

Senator JACINTA COLLINS: I think you indicated that you would take on notice what feedback had been received, how best you could describe it from the Australian Islamic community and how best you could describe that in terms of how something like an awareness kit should meet their needs. Maybe if I leave that question with you on notice, we can explore some other time the broader intervention issues.

Ms K Jones : Of course.

Ms C Jones : Senator, I will just add one comment on the radicalisation awareness information kit itself. The text of the kit case studies and images aside, the language of it was fully consulted and all feedback we received on the language was largely incorporated from a broad range of community stakeholders and academic stakeholders. The language has been reflected in a number of products that have actually received very positive feedback, including international feedback, and is being held up as best practice by other countries. Setting aside some of the concerns that have more recently been expressed about just one of the case studies and the context around how it is conveyed and whether that was adequate or not, and the imagery of the shark cull protest, the language through the rest of the kit has actually received quite positive feedback.

Senator Brandis: Can I just add to that to support what Ms Jones says. When the Australian government hosted the Regional Countering Violent Extremism Summit in Sydney in June, at which most of the Asia-Pacific nations were represented, as well other nations included the United States and Britain, and Atlantic nations were represented as observers. The feedback I had as the convenor of that summit was precisely in the language that Ms Jones has just mentioned. Numerous of the delegates wrote to me after the summit to compliment Australia and, in particular, to compliment my department on developing counter radicalisation and CVE strategies, which more than one of the participating nations described as world's best practice.

CHAIR: We might leave it on that happy note. I thank the minister, Mr Moraitis and your team. I apologise to those that we did not quite get to. Thanks to Hansard and to the secretariat. To my colleagues on this side of the table, thank you for your cooperation.

Committee adjourned at 23:07