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Legal and Constitutional Affairs Legislation Committee
11/12/2014
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Attorney-General's Department

Attorney-General's Department

CHAIR: I re-open the Legal and Constitutional Affairs Legislation Committee's hearing in the further estimates, and we move now to the department: outcome 1, then 2 and then 3. Minister, would you like to make an opening statement before we start this part?

Senator Brandis: Mr Chairman, I wonder if you might indulge me just for a moment. Since we rose for the luncheon adjournment, we have had the news of the imminent retirement of Senator John Faulkner who has announced that he will be resigning from the Senate before the Senate next sits. There will be opportunities, no doubt, to make valedictory statements about Senator Faulkner, but it strikes me that that means that you, Senator Macdonald, become, presumptively, the Father of the Senate. Senator Macdonald, I must confess you do not look any older to me now than you did at 20 past 11 when we rose; however, you already seem much wiser. Might I congratulate you on assuming this very, very dignified office.

CHAIR: Thank you, Senator Brandis. Well, I am not sure whether I really mean thanks, but thank you for mentioning it. I did notice that as well. Senator Faulkner obviously made his mark in Senate estimates committees many years ago, so it is interesting to hear of his retirement. I say with all goodwill and as a joke for Hansard that, with the passing of the late Mr Whitlam, I thought Senator Faulkner would have nothing to talk about any more—but I say that with great goodwill and acknowledgement of the way he was a very great fan and close personal friend of the late Gough Whitlam. Thank you for that.

We are at outcome 1, group 2. Senator Collins.

Senator JACINTA COLLINS: I think we did one of the groups on the last occasion that we brought forward for the royal commissions and some other things.

But might I add also that I look forward to the opportunity for valedictories for Senator Faulkner, who I think has made an enormous contribution. If it is any consolation, Chair, I think with the pending departure of the Senator Lundy, I will become the 'Mother of the Senate'!

CHAIR: You missed that, Senator Brandis.

Senator Brandis: Did Senator Collins say that she was about to become the 'Mother of the Senate'?

CHAIR: Yes.

Senator JACINTA COLLINS: It appears so, yes.

Senator Brandis: I am lost for words.

Senator JACINTA COLLINS: That would be a first, Senator Brandis.

Senator Brandis: I am sitting before the Father and the 'Mother' of the Senate—it has probably never happened before!

CHAIR: It clearly shows what a distinguished committee you oversee, Minister. I should also say of Senator Faulkner that it is probably a mark of the man that I think he has done this so he will not have to come back and sit through the valedictories. He certainly has made a real contribution over the time he has been here and I know we all wish him the very best. Senator Collins.

Senator JACINTA COLLINS: Can I start with the government's announcement yesterday of the policy on internet piracy. There has been some criticism that the government has simply passed the buck back to industry in this area. What would you say to that criticism?

Senator Brandis: What I would say, Senator, is that it is not correct; in fact, far from it. The government prefers voluntary and consensual solutions to problems rather than heavy-handed, government-imposed solutions and therefore we encourage the various stakeholders, particularly the ISPs and the rights holders, to come to an agreement among themselves. That is our preference. That being said, as Mr Turnbull and I made clear in our statement yesterday, failing agreement among the industry participants the government is prepared—and indeed has decided—to prescribe either a standard under the Telecommunications Act or an industry code under the Copyright Act. But I do not want to get ahead of ourselves, because we are hopeful that the stakeholders will sort out a voluntary code among themselves.

Senator JACINTA COLLINS: Attorney, what are the parameters for the government's view about what a voluntary code should encompass?

Senator Brandis: It is probably best if I provide you with a copy of the letter to the stakeholders which was attached to Mr Turnbull's and my press statement yesterday, but, importantly—

Senator JACINTA COLLINS: Is that the press release or is that a separate—

Senator Brandis: It is attached to the press release. In fact, there is a copy of it here. It has been handed to me by the secretary, so perhaps I will table it, if I may. But, importantly, it will contain a graduated education and warning notice scheme. There are different views about the efficacy of those schemes. There is some empirical evidence that they work quite well. There are those who dispute that empirical evidence. But we expect it will be a minimum requirement in any code. As well as that—and this would not be a feature of the code; this is a matter of legislative reform which, I hope, the Australian Labor Party will see fit to support—we intend to strengthen the injunctive powers under the Copyright Act in relation to foreign pirate sites.

Senator JACINTA COLLINS: Can you provide any information on the negotiation process for the voluntary code? Will the government be hosting it?

Senator Brandis: The government will be facilitating it. At this point it might be best if I pass to the officials who are responsible. The government will be facilitating it but, consistent with our philosophy, the more this is done voluntarily by industry so that they can reach agreement with the stakeholders, the rights holders and the ISPs in particular, the more satisfied we will be. But, nevertheless, if they are unable to reach agreement then the government is prepared to prescribe a standard or a code.

Mr Moraitis : As the Attorney said, we would like the stakeholders to engage directly amongst themselves in achieving that code. We would like to nudge them in that direction of voluntarily undertaking and resolving and achieving a code and that would be the approach we would adopt.

Senator JACINTA COLLINS: So when do you envisage that process will commence?

Mr Minogue : The stakeholders will have now received the letter from the Attorney-General and the Minister for Communications. In the first instance it is really up to those stakeholders to work amongst themselves, to achieve the objectives the government has outlined in that letter.

I suppose there are several points of intervention for the government in the future: firstly, the government would want to be satisfied that, whatever agreement industry reaches, it meets the government's objectives because government has also indicated that if industry can't do that then the government, as the Attorney said, would look to further arrangements. I think that letter also indicates that there would be a review at some stage in the future as well. Essentially, government is looking to industry to sort out this matter amongst itself within the parameters that the government has outlined. Our role would be to assist them, as the Attorney says, if there is an impasse or something that we or other agencies can help with and then to advise government as to how it is progressing. But stakeholders themselves are now fully apprised of this. They know what is expected of them and what their next steps might be that the government has indicated.

Senator JACINTA COLLINS: When is the review envisaged?

Mr Minogue : In the third last paragraph of that letter, the government says, 'We'll be working closely—we'll be keeping an eye on how it is developing. Government accepts there is no single proven way through this, but it is ultimately a matter for industry to address itself.' Because there are multifactors adding to what the problem is and because different stakeholders will have a different view about what the root problem is, in the last sentence of that paragraph, the minister and the Attorney say:

In light of this, the Government will review the effectiveness of efforts to reduce online copyright infringement within 18 months of a code or standard coming into operation.

Senator JACINTA COLLINS: I am sorry; I thought I understood that the government would be looking at legislating at 18 months.

Mr Minogue : I beg your pardon, Senator?

Senator Brandis: No, no. We are going to relook at it and see how it is going.

Mr Minogue : I think what the Attorney did say—and also said in the letter—was that government is not just setting industry on a path, and saying, 'See how you go.' Government has been very clear that it expects to see an agreed code by April of next year, and if that is not achieved by industry then government may consider other options, including the prescription of a standard under the ACMA powers—under the Telecommunications Act.

Senator JACINTA COLLINS: So then the time frame for industry is to reach a voluntary agreement by April.

Mr Minogue : April.

Senator Brandis: A hundred and twenty days from yesterday.

Senator JACINTA COLLINS: And then the government will review the situation with a view to—

Mr Minogue : Reviewing the effectiveness of what has been achieved. I should mention also that the injunctions measures that the Attorney mentioned would be on a separate path. They would require legislation, but that will be a matter for government's parliamentary business processes.

Senator JACINTA COLLINS: I will come to that. That is in part helpful, but I will come to that part in a moment. But, in terms of the government indicating that if a satisfactory voluntary code is not achieved then a prescribed code will be looked at, what is the time frame for that?

Mr Minogue : That would be determined by ACMA under the Telecommunications Act. I would have to qualify a little, because it is not an act we administer. I think there are time limits under that as to how ACMA discharges those mandatory powers that it has involving consultation prior to the exercise of those powers. The exercise of a voluntary code to be recognised under the Telecommunications Act also has time limits or time periods for which the ISPs would need to undertake public consultation as well, and that would be before April. But, in direct answer to your question about the time frame for the exercise of the mandatory power, I would have to take that on notice.

Senator JACINTA COLLINS: Yes, I do not think it is actually specified, other than that the cabinet will readdress the issue after 8 April.

Mr Minogue : That is right.

Senator JACINTA COLLINS: In the letter, I had conflated that with the 18-month review.

Mr Minogue : No, it is separate.

Senator JACINTA COLLINS: Okay. On to the one concrete measure: what is the legislative time frame that we are looking at for that?

Senator Brandis: That is subject to the parliamentary business committee, which has not made a decision in relation to that issue yet, but the government would be looking to deal with that matter in the first half of next year.

Senator JACINTA COLLINS: There is some concern about the efficacy of these measures—for instance, that any site which is blocked by this power could very quickly reappear at a different address. Is there any evidence from jurisdictions where site blocking is used of any significant impact on piracy activity?

Senator Brandis: There is actually an enormous body of evidence about these measures, and there is a very vigorous debate about the efficacy of various measures that have been taken in different jurisdictions to deal with the problem of online piracy, pirate sites, peer-to-peer file sharing and so on. As I have said and as Mr Turnbull has said frequently, the test of success is not the complete elimination of online piracy, because, from a practical point of view, that is unlikely ever to be achieved. So this is a percentage game. That is why the government favours the graduated education and warning notice scheme, because there is a significant body of evidence that that has a significant impact on behaviour, and the volume of this problem and the economic cost to the creative industries of this problem is so large that to reduce the extent of piracy by a substantial amount, even if it does not entirely eliminate the problem, will be an enormous economic benefit to the creative industries—and they understand that, by the way. They understand. I have had, and the department has had, very extensive discussions with the representatives of the creative industries, and they understand that the approach—to use the phrase that I have used and that Mr Turnbull has used—is to play a percentage game, to try through incentives and warnings to change consumer behaviour while acknowledging that inveterate or intractable consumers are going to be less able to be influenced than unwitting consumers, shall we say, who might not even realise that they are doing anything wrong.

Senator JACINTA COLLINS: Under that approach, a growth in the use of virtual private networks, for instance, would be a problem, wouldn't it?

Senator Brandis: So I am advised. And the technology in this space is very dynamic. The terrain changes quite a lot, quite swiftly.

Mr Minogue : And I might add that, as the Attorney's letter indicates, the expectation from government is that any code or standard that is arrived at is technology neutral. So, while for the moment rights holders have the technology and capacity to identify peer-to-peer infringement—and VPN infringement is a little more opaque to them—that might not be the case in the future; there might be other technologies to detect infringement. So, government would expect that any measures, particularly those directed, as the Attorney said, to education and informing users, would be equally applicable if the technology arrived, at some stage in the future, to support that.

Senator JACINTA COLLINS: How many submissions has the government's piracy consultation attracted?

Mr Minogue : There were approximately 720 submissions.

Senator JACINTA COLLINS: And what is the breakup of those between industry or lobby groups and individuals?

Mr Minogue : A hundred of those were from organisations representing both sides of the equation, if you like, being ISPs, peak bodies and rights holder groups. And the rest were from individuals.

Senator JACINTA COLLINS: Which ones did the government make publicly available?

Mr Minogue : The department published on its website all the submissions from organisations and it subsequently made available to individuals who requested them copies of all submissions that were provided that were not confidential.

Senator JACINTA COLLINS: So, your advice to the opposition is to request copies of them all?

Mr Minogue : Yes. The problem with the number of submissions we encountered was literally how to get all of those on our website in an accessible form, as we are required to do. We are still working through it, but the priority was the ones from organisations. That is not to say that the other 620 were not available. It is just a matter of what the best way is to make those available.

Senator JACINTA COLLINS: Does the site advertise that?

Mr Minogue : I do not know, to tell you the truth. I would have to take that on notice.

Senator JACINTA COLLINS: We face a similar issue with committee inquiries nowadays, where a large number of submissions may come from individuals. I suppose a piece of gratuitous advice is that it is usually best to explain on the site the approach that you have taken. For example, people looking at the site might say, 'I’d like to see others know it's a simple process to request'.

Mr Minogue : That is helpful, yes.

CHAIR: I was going to suggest that you might like to consult the committee secretariat, who have a lot of experience in that sort of thing. They might be able to suggest some ways of dealing with it.

Mr Minogue : I am certainly happy to do that.

Senator Brandis: I think there are slightly different issues, too. I take the view that when citizens, whether individuals or corporate citizens, make submissions to government or to a minister the presumption is that their privacy ought to be respected, unless they make it clear or unless the terms on which the submissions are invited make it clear that the documents are being published. Of course, with submissions to a parliamentary inquiry, the position is the reverse: a submission to a parliamentary inquiry is presumed to be a public document unless the submitter, for good reason, asks for it to be a confidential document and the committee accedes to that request. But I do think that citizens ought to be able to communicate with government without it being assumed necessarily that the whole world will know what their communication to government is.

Senator JACINTA COLLINS: It will not surprise you, Attorney, that you and I have completely different views there. In the countless consultation processes I was involved in in government—

Senator Brandis: As I said, it all depends on the process.

Senator JACINTA COLLINS: the expectation was that the submissions would be publicly available and would be dealt with—

Senator Brandis: I think, in this particular case, that is right. I guess I am making a more general point. In a democracy, a citizen has a right to put a view to government, and whether or not their view becomes a public document for all the world to see really is a matter for them, presumptively.

Senator JACINTA COLLINS: I think that the public-interest presumption would be that, where at all possible, government be transparent in such consultations, and it is certainly—

Senator Brandis: But it is not a question of the government, you see.

Senator JACINTA COLLINS: allowed for individuals to remain private if that is what they seek.

Senator Brandis: It is not a question of the right of the government or the obligations of the government. It is a question of the rights of the citizen. Just as if I communicate with another person I am entitled to say, 'I'm saying this in confidence,' and I would expect my confidence to be respected, so a citizen in speaking to government has a right, in my view—subject to qualifications, but in general—to have their confidence respected.

Senator JACINTA COLLINS: If they seek confidence.

Senator Brandis: That is right. That is right.

Senator JACINTA COLLINS: I would be concerned if we are going—

Senator Brandis: That is why I keep saying 'presumptively'.

Senator JACINTA COLLINS: down to a stage where the usual practice for submissions to be made public changes.

Mr Moraitis : Senator, if I may, my understanding of the process is a truly practical one. It was case of enabling hard-copy documentation to be in a print-disabled form—people having access to documentation on the internet. There were some practical reasons—

Senator JACINTA COLLINS: No, no, I understand, Mr Moraitis. In this case, that was the issue.

Mr Moraitis : That was a purely practical consideration. And your suggestion of having a reference on our website to hard-copy access is a good one, and we will take that up.

Senator JACINTA COLLINS: Yes, Mr Moraitis, I understand that is the case in this case. The Attorney and I were having a broader public-interest discussion about the approach here. I have put it to the Attorney that as I understand it, although I was not directly involved, these were some of the issues in the public debate around section 18C—that the secrecy of submissions there became a component of the public debate.

Senator Brandis: Well, that is a bit off the topic. But, Senator, really, 'secrecy' is a slightly pejorative term in these discussions. In that debate, where people wanted to make their submissions public, they were made public, and people who wanted their submissions to be kept confidential also had their wishes respected. I think people have that right.

Senator JACINTA COLLINS: But we will remain with the usual practice that submissions will be made public, as the general approach?

Senator Brandis: It all depends on the particular process.

Senator JACINTA COLLINS: I have some broader questions about copyright reform. The Australian Law Reform Commission report on copyright has been around for about a year now. In February, Attorney, you said the government's response to that report 'will be a thorough and exhaustive exercise in law reform' and that you would rewrite the act such that it would be 'shorter, simpler and easier to use and understand'. Can you advise us on what progress has occurred since February?

Senator Brandis: It is under consideration by government. The online piracy issue has been identified as a specific area of reform within the broader topic of overall reform of the Copyright Act, and the effort and public discussion in relation to copyright reform in the past year have been largely focused on that particular topic. Broader reform of the Copyright Act is a matter for the future.

Senator JACINTA COLLINS: That topic was not really covered by the Law Reform Commission report, was it?

Senator Brandis: That is not quite right. It was not the main focus but it would not be right to say that it was not mentioned.

Senator JACINTA COLLINS: Can you give us some indication of the time frame for the main areas of the Law Reform Commission response?

Senator Brandis: I am not going to tie myself to a time frame, Senator, other than, as I have answered your question in a very general way, that it is a matter before government.

Senator JACINTA COLLINS: Do you retreat from what you said in February?

Senator Brandis: No, I never retreat from what I say.

Senator JACINTA COLLINS: There was one example, I think, in recent times that we celebrated earlier this morning.

Senator Brandis: I cannot think of any examples myself. Nevertheless, Senator, it is a matter before government.

Senator JACINTA COLLINS: On the issue of fair use you said back in February:

I remain to be persuaded that this is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate.

Have you formed a view on that issue?

Senator Brandis: The question of the fair use exemption is as, if you follow this area, you would know, one of the more vexed debates. Whether we have a general fair use exemption or whether we have more particular categories of exemption, my views are as I expressed them to be.

Senator JACINTA COLLINS: I think some of the media today was presuming that you had closed your mind on it. Is that inaccurate?

Senator Brandis: I did not see that article, Senator.

Senator McKENZIE: I have a couple of really general questions which I held over from the estimates period because I could not get down to legal and con. I want to get an understanding of general consent that is obtained from merchants when you sign up, say, for a Flybuys promotion under privacy provisions. Does that general consent allow for that data to be obviously analysed, collated and used to inform marketing campaigns but also exchanged?

Mr Minogue : It depends on the purpose for which the service provider is collecting that information. That service provider has to make you aware in general terms at least through their privacy policy what use that information will be put to and subject to the privacy principles yes, that information can be used for the purpose for which it is collected.

Senator McKENZIE: And that is quite a general purpose is usually?

Mr Minogue : It can be, yes.

Senator McKENZIE: Do we ever go back to the consumer to check whether they are still happy for that consent to be live?

Mr Minogue : This is probably something the Privacy Commissioner would be better able to answer, but in any event, the Privacy Act sets up the regime for consumers to make complaints about the use of their privacy. The Privacy Commissioner has a range of statutory powers but the first option is to conciliate those, to work with the service provider and the consumer. Failing an acceptable outcome, the Privacy Commissioner has regulatory powers including making of determinations which then become enforceable by courts.

Senator McKENZIE: Are you aware of the debate currently in Europe about the right to delete?

Mr Minogue : Following the Spanish decision? I then have to say yes.

Senator McKENZIE: Have we done any sort of preliminary work around that issue?

Mr Minogue : Only very preliminary, in all honesty Senator. Certainly our privacy area is aware of it and the implications it might have for Australia. It is one that does not sit on all fours with our regime and of course there is—

Senator McKENZIE: Did you say 'on all fours'?

Mr Minogue : Yes, on all fours. The European legislation does not necessarily equate to ours. So some of the concepts the Spanish court took into consideration about the particular actions or processes that Google undertakes do not necessarily have a comparator in Australian legislation. There are, however, some similarities in relation to how the Privacy Act works, including the obligation for information holders to maintain accurate information and the capacity for people to access information that is held about them. Again, it can go into the machinery administered by the Privacy Commissioner about how issues or controversies are resolved. One of the issues that would be fundamental to any resolution in Australia is: is the information held in Australia?

Senator McKENZIE: Private data is flowing across borders. Do we have an understanding of what happens to that private data once it leaves our borders and what sort of confidence we can give citizens about the use of that data?

Mr Minogue : I think we do. I can only talk in general terms. In relation to credit related information in particular, that was a key feature of the 2012 reforms. A lot of effort was put into working with industry and consumer groups about how information relating to debt is handled and processed offshore. There are strong controls around that. More generally, I would have to take that on notice.

Senator McKENZIE: Is there a list of where we have data exchange—so that we know our privacy regime is compatible and so that our citizens can have confidence in that? Is there a list of preferred—

Mr Minogue : I will take that on notice. One of the issues in privacy internationally is concepts of compatibility or recognition of alternative schemes and how we measure up or how other regimes measure up. There are consequences flowing from that. That is probably as far as I can take that today.

Senator JACINTA COLLINS: I have one question in regard to section 18C. The Prime Minister has said the amendment to the Racial Discrimination Act is off the table. I noticed a press report today suggesting there might be broader coalition support for Senator Day's bill. Does the Prime Minister's statement mean you will not seek to amend 18C in the future?

Senator Brandis: The Prime Minister's statement means what it says. I am not going to comment on it, parse it or editorialise about it. As to the press report to which you referred, I have not seen it.

Senator JACINTA COLLINS: Would you be one of those coalition members who might support Senator Day's bill?

Senator Brandis: No.

Senator JACINTA COLLINS: Has there been any assessment of how the cuts to community legal centres have impacted front-line services to date?

Mr Manning : There has not been any such work done.

Senator JACINTA COLLINS: It also appears that the centres will not know what funding they will receive, and how any cuts will apply to them, at least until mid-June next year for cuts that will take effect on 30 June. How are these centres expected to plan, retain staff, enter into leases et cetera for 2015-16 with this time frame of weeks?

Mr Manning : The government is currently seeking to revise the arrangements for all of the legal assistance programs—the community legal sector, the Indigenous legal service providers and the legal aid commissions. So we are in discussions with the sectors about how that will happen and what will need to happen, but it is envisaged that, in addition to trying to reach agreement about revised arrangements, in doing so there would be a transition period in which to implement any changes.

Senator JACINTA COLLINS: Have you looked at the Productivity Commission's final report on access to justice arrangements, released on 3 December?

Mr Manning : Yes.

Senator JACINTA COLLINS: Would you care to respond to the findings of that report?

Mr Manning : I think the government will consider whether or not it will respond. I think all we can say is: we had a number of discussions with the Productivity Commission as it developed its report and have appreciated the effort it put into considering the range of issues across the justice sector and the perspective it brought to it, but we do not have a formal response yet. That will be a matter for government to decide if and when to do that.

Senator Brandis: And you may take it of course, Senator—I suppose this follows as a matter of common sense—that the Productivity Commission's report will inform the government's thinking in arriving at its final position.

Senator JACINTA COLLINS: So it might assist you in ruling out further cuts. Is that what you are suggesting?

Senator Brandis: I am suggesting what I just said.

Senator JACINTA COLLINS: If the department, or the government, has not taken any assessment of the impact that the cuts have had on front-line services, what has informed the Productivity Commission's conclusion about the direct and severe impact on the delivery of legal services that the government's cuts have already caused? Where does that evaluation come from?

Senator Brandis: It is not for us to comment on why the Productivity Commission may have formed the views that it has formed. That is really a question you need to address to the Productivity Commission.

Senator JACINTA COLLINS: Well, Mr Manning answered my earlier question about what assessments there were of the effect, and he said, 'None.' Do I take that to be no department assessment?

Mr Manning : Perhaps I can clarify, in the sense that the vast majority of community legal centres have not received any cut yet, because of how the reductions are being phased in. There were some agreements for 57 community legal centres who got four years of additional funding and the last two years of those were cancelled. There also has been expiration of funding agreements for Environmental Defenders Offices. However, in relation to the community sector program, for the 131 funded besides them, there have not been any cuts yet. The cut will be implemented at 1 July, as we indicated, and the arrangements for how that will occur are still under development.

Senator JACINTA COLLINS: But that circumstance in itself is obviously already having an impact on delivery of front-line services.

Mr Manning : The only change beyond those I have just outlined is the removal of advocacy as one of the areas of work for the centres. That was done specifically to try and insulate front-line service providers, the provision of front-line services. For a centre who has not received a cut yet, there should not be any impact, in the sense that their budget is unchanged.

Senator Brandis: In fact, if I could expand a little on the point Mr Manning was trying to convey to you, Senator, where there has been no cut in funding but there has, as a result of a policy decision made by the government, been a requirement that the funding be spent on front-line services rather than shared between front-line services and what is sometimes called advocacy, in fact at the moment, at least, there will be more money available to front-line services.

Senator JACINTA COLLINS: But we still have centres that are not in the position to anticipate what their funding arrangements will be until mid-June, which is impacting on planning, staff retention, leases, those sorts of areas. Is that not the case?

Senator Brandis: This has not been finalised yet, Senator, as you know. The point that Mr Manning has been making to you is that these cuts have not happened yet, and we are in the process at the moment of arriving at a final position as to funding beyond 1 July.

Mr Manning : I think it is probably also worthwhile making the point that we are at the end of the current arrangements, so there would have to be negotiations of new arrangements in any case. Yes, there would be additional uncertainty because of reduction in funding; however, it is an unfortunate reality of trying to roll out these arrangements that there is never enough time between the end of one and the negotiation of the new ones to provide the certainty a relatively small organisation might see.

Senator JACINTA COLLINS: Yes, but they are confronting the foreshadowed cuts—further cuts of $6.2 million—which were scheduled for 2017-81 which may change and a deadline essentially of not much certainty before mid-June 2015. What you are saying is that another ameliorating factor in that is that their ongoing arrangements were due to conclude when?

Mr Manning : At that time.

Senator JACINTA COLLINS: At that time as well.

Mr Manning : The point I am making, Senator, is that there would have been a degree of uncertainty at this time in any event without the reduction, because there was always going to be a period of new arrangements being negotiated and rolled out regardless of the budget.

Senator JACINTA COLLINS: Yes, but under an alternative scenario, they would have hoped to have far greater warning than a few weeks as to how that may play out.

Mr Manning : I don't think so in the sense that the arrangements are driven by the timing of the Commonwealth budget.

Senator JACINTA COLLINS: Which has in part led to this scenario. Another aspect based on Attorney-General planning and reflected in discussion papers is that the Attorney-General appears set to devolve decisions making for community legal centre funding to the states. Is that devolution set in concrete too?

Mr Manning : No. All arrangements have to be agreed between the states and the Commonwealth but one of the proposals that we in the Attorney-General's Department have put forward is that, in order to best use the funds that are available in each jurisdiction, there should be jurisdictional planning whereby all of the legal service providers—for example, the community legal sector, the Indigenous legal sector and the Legal Aid Commission—undertake annual planning about where they are going to focus their efforts just to ensure there is no duplication. As part of that, we believe that it is probably a decision best made at state level as to where the community legal sector budget for that state is best allocated. We would like to do that, but it has to be agreed with states and territories.

Senator JACINTA COLLINS: The question in part is why should states and territories that make no or minimal contribution to funding, especially Tasmania, South Australia, the ACT and Northern Territory, if you are making decisions about which centres receive funding.

Mr Manning : It is purely based on the fact that they are probably in the best position to know where the need in that particular jurisdiction is and to coordinate a discussion amongst the people on the ground in the legal assistance sector as to where they should best spend their energy. We in the Commonwealth of course are responsible to parliament for the budget allocation, so we would be involved. We are aware that it is probably a bigger issue for those who do not have the same level of funding—or indeed none—for community legal sector programs that other states do but we still think it is decision making that is best devolved to the people closest to the ground for the best knowledge about where the need is.

Senator JACINTA COLLINS: So what input is being sought from community legal centres about the structure of the proposed new funding allocation model?

Mr Manning : Perhaps I will hand over to Ms Quinn who can provide some information on that.

Ms Quinn : The work on the funding allocation model applies to three separate funding allocation models—one for Legal Aid Commission funding, Commonwealth part; one for community legal centre funding; and one for the Indigenous Legal Assistance Program. We conducted a survey of all service providers and had a very positive response to that so we are quite comfortable with the statistical validity of that work. We have engaged a consultant who is specifically qualified to conduct this sort of work. The consultants have conducted regression analysis on all the historical data and they are also now working on projected population levels and drivers of cost and demand for legal services. That is not finalised yet but it is well underway.

Senator JACINTA COLLINS: Remind me what a regression analysis tells us.

Ms Quinn : I will do my best. We have engaged consultants specifically because we are not qualified to do the work. But regression analysis is about looking at the service level that has been delivered previously and, significantly through the consultation with the sector, indications of where a demand driver exists. It is about retrofitting what has happened with who has required services. I can take on notice to give you a more scientific answer, if you would like, because I would not like to do an injustice to the level of detail that is going into this work. In terms of consultation, we did the survey initially and we visited each jurisdiction. We met with the justice departments as well as all these service providers to discuss the elements that will go into the model, but we have not yet finalised a model. I know there is a level of frustration amongst providers, because once that model is developed it will go into the federal cabinet process and therefore not be something we are likely to be consulting on after the event.

Senator JACINTA COLLINS: It is also something which will require agreement from the states and territories, isn't it?

Ms Quinn : Yes.

Mr Manning : All of these arrangements require agreement with the states and territories in relation to legal aid commissions and community legal centres. The Indigenous Legal Assistance Program is one through which the Commonwealth funds those providers directly. But we also want the states to agree that when they are doing the jurisdictional planning I spoke of earlier they will include Indigenous legal assistance providers as well.

Senator JACINTA COLLINS: Yes, Ms Quinn, I will take up your offer to have that dealt with on notice. I would be interested to see what that particular analysis is designed to yield.

Ms Quinn : No problem.

Senator JACINTA COLLINS: There have been questions, I take it, in the past regarding Environmental Defenders Office officers. In the weeks between you arriving back to the Minerals Council on 14 November and the release of MYEFO on 7 December 2013, in the letter to the Minerals Council you referred to three reviews that were occurring into legal assistance, those being the Commission of Audit, the ACIL Allen national partnership agreement review and the Productivity Commission inquiry into access to justice arrangements. Did any of those three reviews report back to you regarding EDO funding before you finalised your position?

Mr Manning : Not before the finalisation of the decision, no. Ms Quinn will correct me if I am wrong, but my understanding is that the review of the NPA and the Productivity Commission report came out subsequent to that decision being made.

Senator JACINTA COLLINS: Let's be clear, then: the funding here was cancelled with no analysis, no review and no process other than the mining companies asking for it to be done.

Mr Manning : No, that is not what I said.

Senator JACINTA COLLINS: Did you have interim reports of those reviews?

Mr Manning : There was a draft report of the NPA review, I think.

Ms Quinn : We did have that. I will have to check, but I am not aware that it specifically referenced Environmental Defenders Office officers. I will need to check that.

Senator JACINTA COLLINS: Perhaps you could take that on notice.

Ms Quinn : Yes.

Senator JACINTA COLLINS: Similarly in the past there have been some serious questions to answer about the Safer Streets Program, including: the eligibility criteria and selection process used to award funding; whether funds spent under the program have been properly targeted at projects to prevent, detect and deter crime; whether this represents value for money for the taxpayer; and the distribution of funding, including in electorate terms. Further to this, the government has refused to release departmental advice to support the decision made to give almost $20 million of taxpayers' money to organisations that were identified in the lead-up to the 2013 election.

Now, given some of the timing limitations, I may end up putting a number of these on notice, given that broader questions have failed to yield answers other than that it would substantially or unreasonably divert resources of the Attorney-General's Department. So, if I need to be more specific so as not to unreasonably divert resources, then I will attempt to be more specific. My first question is: when were the identified organisations selected?

Mr Anderson : The organisations that have received funding were identified during the 2013 election period.

Senator JACINTA COLLINS: When was the list of identified organisations finalised?

Mr Anderson : During the 2013 election period.

Senator JACINTA COLLINS: So, prior to the election itself the list was finalised.

Mr Anderson : It was prior to the actual election but during the election campaign.

Senator JACINTA COLLINS: Who selected the identified organisations?

Mr Anderson : The then opposition did.

Senator JACINTA COLLINS: And who was responsible for the initial identification of these organisations?

Mr Anderson : The then opposition.

Senator JACINTA COLLINS: Were those responsible for this identification—well, the answer to that is no; they were not an independent body or group. What was the process used?

Mr Anderson : I cannot answer that. I can say that this was what happened in 2007 and 2010 as well. The government in 2010 and the then opposition in 2007 identified a range of projects that would be funded following that election if they were elected. So, it is not a change of process.

Senator JACINTA COLLINS: You are referring to projects in which area particularly

Mr Anderson : Community crime prevention projects.

Senator JACINTA COLLINS: I am certainly aware of countless other projects designed in opposition that utilise more independent processes to establish the basis for identifying those that would attract funding. In fact, I can recall from many years ago, before we had the PBO, that parliamentary estimates was often used for that purpose by oppositions.

Mr Anderson : Yes. All I can say is that the previous government's safer-suburbs program identified community crime prevention projects to fund during the 2007 and 2010 election campaigns. The current government identified projects to fund during the 2013 election campaign. In all cases, of course, the actual decisions about the commitment of funding have followed assessment of actual applications by those organisations via the department under published guidelines, in accordance with the Commonwealth grant guidelines.

Senator JACINTA COLLINS: So, have all of those projects that were identified in the lead-up to the election subsequently been funded?

Mr Anderson : No, they have not.

Senator JACINTA COLLINS: Which ones have and which ones have not?

Mr Anderson : A very small number have elected to not actually put in applications for funding. I do not have the names of those specific ones here.

Senator JACINTA COLLINS: Perhaps you could provide that on notice—

Mr Anderson : Yes, we can do that.

Senator JACINTA COLLINS: and the reasons they determined not to.

Mr Anderson : If they did not put in an application we will not necessarily be able to say what the reasons are.

Senator JACINTA COLLINS: To the extent that you are able, then.

Mr Anderson : Yes.

Senator JACINTA COLLINS: Were other organisations that were not initially identified funded?

Mr Anderson : No.

Senator JACINTA COLLINS: That was because the list was closed, was it not?

Mr Anderson : That is right.

Senator JACINTA COLLINS: So, how can that be consistent with accountable government practice?

CHAIR: Senator, I think you are asking the officials difficult questions. Unfortunately the minister is not here, and he could perhaps have taken these questions. But I think the answer has been given: they were commitments made by the opposition at the time, and they have been actioned by the department in accordance with the practice that it has become very prevalent over the past six years. And I think you are asking officials to talk about why political parties made these commitments, and perhaps there is something you could—

Senator JACINTA COLLINS: No, I am not asking him why political parties made commitments; I am asking about the process in government post commitments having been made. We reached the point of understanding that the program was closed to only those organisations that had been identified by the previous opposition.

CHAIR: And that is the point I am making—that is the answer. I just think you are making it difficult for the officials to try to explain more than that, but anyhow it is up to you. Senator Brandis is back. Perhaps he could—

Senator Brandis: Sorry, did I miss something?

CHAIR: Not really.

Mr Anderson : Senator, I could add something though.

CHAIR: Okay. These decisions were obviously made by a political party prior to the election and they have been actioned and, as you rightly point out, it is not a new process. It is something that, as I said, became very prevalent over the last six years. Officials should not be put in a position where they have to defend the actions of a political party in putting forward election promises. That is just my point.

Senator JACINTA COLLINS: No, and I have been very careful not to do that.

CHAIR: Okay.

Senator JACINTA COLLINS: Mr Anderson made a more general statement earlier in his response, which was it was consistent with government allocation arrangements, but I pointed out to him again that it was closed to the initial list that was determined prior to government or departmental practices.

CHAIR: Well that is a matter of fact.

Mr Anderson : If I could just say something about that, Senator. While in 2007 and 2010 the same approach was taken, in the current process while the initial round of funding is limited to those who were identified during the election campaign, that has not actually closed off the entire Safer Streets fund. Of that $50 million fund, only some $18.8 million goes in that first round, so there is the opportunity for further funding to be allocated and for further rounds to be devised. The complete list for the Safer Streets Program is not closed.

Senator JACINTA COLLINS: No, but it did close off the first round.

Mr Anderson : The first round.

Senator JACINTA COLLINS: And the first round was when?

Mr Anderson : It has followed the election campaign. So far 78 programs have been approved for funding.

Senator JACINTA COLLINS: Out of how many? How many were on the initial list?

Mr Anderson : There were 150 different projects in total, but they have been grouped up because some of them involved the same local government area, so it actually comes down to 83 distinct projects, so 78 out of 83.

Senator JACINTA COLLINS: And when do future rounds occur?

Mr Anderson : That decision has not been made yet by the government.

Senator JACINTA COLLINS: But they are open?

Mr Anderson : Once they are open then they will be open. The decision has not been made yet as to what the nature of those future rounds will be and when they will be run.

Senator JACINTA COLLINS: I think I will put some more precise questions on notice, given my previous experience with answers—well, not mine; others, I should say. I want to move briefly to the issue of international surrogacy. Is AGD the lead department in terms of our responses to The Hague?

Mr Moraitis : On The Hague convention matters, yes. We are the point of contact. We are not?

Mr Manning : There is no reporting to The Hague in relation to international surrogacy.

Senator JACINTA COLLINS: Sorry, there is no?

Mr Manning : Not in relation to international surrogacy. We engage with The Hague in relation to international child abduction and international maintenance as well as intercountry adoption. The Commonwealth's main interest in surrogacy comes about from a passport, citizenship and visa perspective.

Senator JACINTA COLLINS: The Hague has commenced a preliminary investigation into international surrogacy matters and the Australian government and a number of state governments have responded to that preliminary investigation. I am attempting to understand which is the lead department responsible for such things.

Mr Manning : Sorry, Ms Harvey corrected me. She said we did do that.

Ms Harvey : We did respond to a questionnaire from The Hague some time ago—I think it must have been 12 months ago—with the preliminary work that they were looking to do on international commercial surrogacy.

Senator JACINTA COLLINS: Who would be the lead department with responsibility around international surrogacy issues generally?

Mr Manning : It goes back to my earlier response. As I said, surrogacy is a matter for states and territories, and the Commonwealth's interest is in relation to passports and visas. In extreme cases, there could be Commonwealth criminal laws that are relevant, but there is no lead Commonwealth agency in relation to international surrogacy generally.

Mr Moraitis : As Mr Manning said, there is interaction with passports, there is interaction with the immigration department when it comes to visas and there is also the possibility for it to come up in the Family Court, I think, occasionally. So there are at least three points of intersection and, as Mr Manning said, the legislative regime is a state based one, whether it is to do with extraterritorial laws or domestic laws, which are not universal in all states. So it is a bit of a—

Senator JACINTA COLLINS: I fully understand the legislative regime issues, but, as you have pointed out, there are some family law issues. I think the Attorney gave some assurances to the family law conference that he would consider their request that we look at dealing with this issue. I was concerned to see that the Attorney thought that references to the Family Law Council's terms of reference including surrogacy were erroneous, because they were not. It clearly does have terms of reference referring to surrogacy. Indeed, the report produced included a full chapter related to international surrogacy issues. Attorney, I do not want to waste too much estimates time on this issue. The main point I am seeking to get to is: from the Commonwealth's perspective, what is the most fruitful way for me to be briefed?

Senator Brandis: That is an unusual question. It is not really for me to tell you how to do your job, but, if you would like me to make officers available to give you a briefing, I do not see any reason why I could not do that—if I understand your request.

Senator JACINTA COLLINS: The element of this that I am exploring is that there are obviously cross-government issues.

Mr Moraitis : That is absolutely correct.

Senator JACINTA COLLINS: For example, in the recent cases of the twins—one of whom is in Perth; from press reports, potentially another one may be able to gain citizenship—we are talking about DFAT issues. We are talking about Immigration issues. We are talking about AGD issues. We are talking about responses to the Hague. We are talking about family law issues. We are talking about suggestions in some quarters that our processes and some of our embassy processes are even potentially complicit in, let's be generous, very poor arrangements in some Third World countries.

Senator Brandis: When you say, 'We're talking about,' some people have made all sorts of statements about this and some of those statements may be perfectly unexceptionable and some of the statements, I suspect, are complete nonsense. The fact is that the international dimension of this, where the surrogacy exists in relation to an Australian couple or Australian prospective parents and an international or overseas born surrogate child, that obviously invokes a Commonwealth interest, but primarily the issue of surrogacy is a state issue.

Senator JACINTA COLLINS: The issues around the law other than family law are—you are right—state issues. Regarding issues around citizenship, I asked a question recently and got a very limited response, and I will pursue it on another occasion. For instance, even understanding the historical difference between Australia and New Zealand is difficult, where our embassies, or at least some of them, are essentially setting up DNA testing panels to facilitate international surrogacy, as opposed to the New Zealand arrangement, where DNA testing in and of itself is not regarded as adequate for citizenship purposes. There is a broad range and gamut of issues that are directly Commonwealth but do not all necessarily reside with AGD.

Senator Brandis: That is right. That is why I said to you a second ago that to the extent to which there is an international dimension to this then obviously a Commonwealth interest is invoked. You have mentioned some of those Commonwealth interests. My department is not responsible, as you know, for citizenship. My department is not responsible, as you know, for immigration. My department is not responsible for passports. But my department does have interests in this area. The main point I want to convey to you is that, except in the unusual case where there is an international dimension to this that obviously invokes a Commonwealth interest, the question of surrogacy, whether commercial or voluntary, is a state issue.

Senator JACINTA COLLINS: I am still interested in exploring the Commonwealth issues related to those state laws. I attempted first by asking who would be the lead agency responding to processes such as the preliminary investigation that is occurring at the Hague, in an attempt to find the right place to coordinate a broader than just AGD response and briefing on these issues.

Senator Brandis: As I said, all I can do and I have offered my officials to give you a private briefing in so far as these issues involve the Attorney-General's Department. The international dimensions of this, which really are the only direct Commonwealth interest are mediated through the Department of Immigration and Border Protection and perhaps, to the extent to which you say embassies and high commissions are involved, through the Department of Foreign Affairs and Trade. So perhaps you might approach Mr Morrison and Ms Bishop. To the extent to which my department has an involvement I have offered you a briefing.

Senator JACINTA COLLINS: If I sought to combine that with a combined briefing of foreign affairs, defence and trade and immigration, is that something you would be happy with?

Senator Brandis: It is really not for me to say, because whether or not those departments provide a briefing to you is a decision of their ministers.

Senator JACINTA COLLINS: I understand that. Would you be happy for Mr Moraitis to attempt to arrange such?

Senator Brandis: No, I would not. I am happy to offer a briefing to you on the issues you have raised so far as they bear upon the responsibilities and jurisdiction of my department, but I am not going to ask my officials to approach other departments to ask them to approach their ministers to see if you can be facilitated. It is for you to approach Ms Bishop and Mr Morrison.

Senator JACINTA COLLINS: What I will do then is arrange an appropriate briefing with Mr Moraitis, or for you to facilitate the relevant officers, and at the same time, once we have that foothold, I will make similar requests of the other two departments.

Senator Brandis: How you want to inform yourself about these matters is entirely a matter for you. We have been as helpful as we can possibly be by offering you a briefing from my department.

Senator JACINTA COLLINS: Can I say the reports to the Hague were very concerning but very informative about the depth of some of the issues and the problems that we are dealing with here. I think I will save even putting anything on notice, Mr Moraitis, and we will just deal with that at the briefing level at this stage.

Moving on to Indigenous legal services; we partly covered this earlier. The final report on the access to justice arrangements—which, as we mentioned earlier, was released on 3 December by the Productivity Commission—found that cuts to Aboriginal legal assistance imposed by the government had already had an impact on frontline services and recommended reversing the government's planned 13.3 million cuts to the ATSI Legal Services. Has the department itself done any assessment in that respect?

Mr Manning : The answer I gave earlier in relation to community legal centres is also relevant to the ATSILS in the sense that none of them have yet had their funds cut. So it is difficult to see how it would be impacting on front-line service delivery. So no ATSILS has had a funding reduction yet. There is a purported funding reduction to be rolled in in the same way as I spoke in relation to the community legal sector. So we have not assessed something which has not occurred yet, no.

Senator JACINTA COLLINS: The Productivity Commission has reached that conclusion, but we covered earlier the discussion of the circumstances under which they are currently operating leading towards that deadline of mid next year.

Mr Manning : That is right.

Senator JACINTA COLLINS: Were their recommendation to reverse the 13.3 million cuts, then there would be no cuts. Is that correct?

Mr Manning : Yes, if the amount that is proposed to be cut were not cut, there would be no cuts. That is right.

Senator JACINTA COLLINS: It is still only quarter past one—

Mr Manning : If there is no cut, there is no cut—it is a philosophical discussion.

Senator JACINTA COLLINS: where would we be if it were 10 o'clock at night!

Senator Brandis: Well, that is true: if there is no cut, there is no cut. You were trained in the discipline of logic, I understand, Senator Collins, so you above all in this room would appreciate the logical cogency of what Mr Manning has had to say.

CHAIR: Are you trained in logic?

Senator JACINTA COLLINS: Yes, I am, Chair. Senator Brandis confused that with training in the law at one point.

Senator Brandis: Many, many years ago.

Senator JACINTA COLLINS: Yes, more than a decade ago.

Senator Brandis: How could I have made that mistake, Senator, in relation to you?

Senator JACINTA COLLINS: I don't know how you could have, Senator Brandis, given all the other things you call me at different points in time.

Senator Brandis: Oh, Senator, I have only said the kindest things about you.

Senator JACINTA COLLINS: This issue of advocacy—how is it represented for ATSI organisations? Is it to be part of the ongoing contractual arrangements? How is it to be expressed?

Mr Manning : Ms Quinn will address that.

Ms Quinn : Following the announcement of the Mid-Year Economic and Fiscal Outlook forecast reductions last year—and, as Mr Manning said, those reductions will not apply until next financial year—in the interim there was a guideline amendment made consistent with the government's policy on law reform and advocacy. So the Indigenous Legal Assistance Program guidelines were amended to remove reference to law reform and advocacy from the program objectives.

Senator JACINTA COLLINS: Has any assessment been done of that guideline amendment with respect to its consistency with the Not-for-profit Sector Freedom to Advocate Act 2013?

Ms Quinn : Yes. It was considered consistent with that act.

Senator JACINTA COLLINS: Can you give me a rough outline of the basis of that assessment?

Ms Quinn : Because the amendment does not actually specifically preclude an activity, it simply no longer includes it as an allowed activity under the funding. So no provider is explicitly forbidden—as the Attorney said several times at estimates—from undertaking any advocacy activity; it is simply a prioritisation of where the Commonwealth funding should be spent.

Mr Manning : If it will assist, I could read the paragraph.

Senator JACINTA COLLINS: Sure. I presume this is terrain you have covered previously, from Ms Quinn's answer just then.

Ms Quinn : Yes.

Mr Manning : Yes, and the guidelines, as Ms Quinn said, were updated to now read:

Australian Government funds for legal assistance services should be directed to activities that relate to the provision of legal advice, assistance and representation services to people who, by reason of social or economic disadvantage may otherwise not have access to justice.

So, in a sense, it is saying the funds have to be used for these services; it is not saying you cannot do other things.

Senator JACINTA COLLINS: Okay. It is saying, 'We don't preclude advocacy; we just won't fund it.'

Mr Manning : That is right, whereas previously it was expressly funded.

Senator JACINTA COLLINS: Is the government also considering restoring the stand-alone funding for the family violence prevention legal centres?

Mr Manning : Responsibility for those centres was transferred to the Department of the Prime Minister and Cabinet. You need to ask those questions there.

Senator JACINTA COLLINS: Those were direct remarks from Mr Chaney as a former Liberal Aboriginal affairs minister there.

Senator Brandis: I do not think Mr Chaney was speaking in any capacity other than as Mr Chaney.

Senator JACINTA COLLINS: He cannot these days, can he?

Senator Brandis: Indeed.

Senator JACINTA COLLINS: When will we see potential draft regulations?

Mr Moraitis : Excuse me. Can group 2 officers be excused now if you are finished with civil justice?

Senator JACINTA COLLINS: Apart from this, I have questions on emergency management and violent extremism. I think they are group 3.

CHAIR: Senator O'Sullivan?

Ms O'Sullivan : I have no questions, thank you.

CHAIR: Okay. Yes, they can be excused. Thank you.

Senator JACINTA COLLINS: What is the time frame by which we might see draft regs?

Senator Brandis: That is not final, but we would like to get them out in the early part of next year.

Senator JACINTA COLLINS: Can you outline for me the consultation process that you are looking at around the proposed dataset and other matters?

Senator Brandis: We have already told you a little about that in response to your earlier questions. The officials might be in a position to give you more specific information.

Mr Moraitis : A working group has been established which has met once and is meeting again tomorrow and, as part of that working group process, is engaging with stakeholders. Since the announcement, there have been two meetings of an expert subgroup, which is looking at the more technical details. I understand we are having our next meeting tomorrow afternoon.

Senator JACINTA COLLINS: Who is on the working group?

Mr Moraitis : Officials from the Attorney-General's Department, Department of Communications, law enforcement and security agencies, and on the industry side, I think, the major carriers and also the Communications Alliance, the umbrella group which covers the sector.

Senator JACINTA COLLINS: Which agencies—AFP, ASIO?

Mr Moraitis : AFP, ASIO and the Australian Crime Commission.

Senator JACINTA COLLINS: We were discussing earlier about the accountability processes and agencies. Are they incorporated in this process?

Mr Moraitis : Not in this working group, no.

Ms Harmer : Sorry, Senator, in terms of the oversight arrangements under the bill? No, the purpose of the joint Government-Industry Expert Working Group is to explore specific technical issues around the dataset, so that group does not include those oversight bodies. However, the development of the bill did involve consultation with oversight agencies.

Senator JACINTA COLLINS: Okay. Can you highlight for me out of the proposed dataset some of the key issues, the technical issues, that need to be addressed in this working group? I raised earlier the issues around how you distinguish web browsing from the other internet activity that is important to security agencies. I think I asked also about the role of volume plays in that scenario. Are they technical issues—are we in the right space?

Mr Moraitis : I will ask Ms Harmer to answer, because she is part of that expert group. But on the former question, there is express mention in the draft bill that web browsing is excluded. It is actually not specifically addressed in the regulatory dataset as it were because it is much more—

Senator JACINTA COLLINS: It is referred to here in the draft dataset you gave me a copy of earlier. It has a note under the explanation and examples which says, 'The bill explicitly excludes anything that is web browsing history or could amount to web browsing history such as URL and IP addresses to which a person has browsed.'

Mr Moraitis : Correct. That is what I was saying. I will ask Ms Harmer to specify a bit more in detail, if she can.

Ms Harmer : In relation to the dataset, the first thing I should say is that naturally the dataset should be read alongside the bill, which makes a number of exclusions and limits what data can be retained by reference to a number of specific statutory restrictions. The dataset then is intended to prescribe particular data points that would be retained by the telecommunications industry under the data retention measure.

In terms of technical issues addressed in the dataset, the document that you have before you records the data elements in that draft dataset column. I expect it would be inappropriate for me to pre-empt what those technical issues would be that might be identified, because it is the purpose of that joint government-industry working group to refine and consider that dataset and to provide advice to government for the purposes of preparation of the draft regulations.

In relation to your comment about the web browsing, that comment features in the examples and explanations comment and that provides additional explanatory material. What that particular comment does is to restate the restriction which is included on the face of the proposed legislation.

I believe you had a question previously about the reference to volume. Again, in relation to the dataset I would not wish to pre-empt the outcomes of the joint government-industry implementation working group, but the dataset identifies particular data points, and those include elements such as volume and usage allowances, references to bandwidth. The entirety of the dataset I can say has been developed, has already been the subject of consultation with agencies and the telecommunications industry, and reflects a series of data points that are currently of utility to law enforcement and security agencies in progressing their investigations. I think the deputy director-general commented on that this morning.

Senator JACINTA COLLINS: Okay. I suppose in my mind the volume issue highlights why intuitively I still have problems with the envelope and letter analogy, because now we are talking about envelope, letter, very big heavy letter. Is that the way to encapsulate volume?

Ms Harmer : I would be cautious about drawing analogies between a highly technical sphere such as the telecommunications industry and the traditional envelope and letter. Volume can refer to a usage allowance and also actual usage.

Senator JACINTA COLLINS: It could be either.

Mr Moraitis : It could be that you buy a very small envelope or a larger one. It does not pre-empt the actual decision of how much you stuff it with, if that makes sense.

Senator JACINTA COLLINS: Okay! This is probably a very serious area. I certainly would not want to be the subject of a Walkley, Attorney. Being a bit too humorous about some of the analogies is not necessarily a good idea. I am struggling at the moment to find the space here. You talk about one area—I think it was in the examples—that of the GPRS location essentially being taken at the start and the end of a communication. Again, I am not really sure how meaningful that is or what protection that actually gives someone's privacy if you are taking the location at, for instance, both the start and the end of a mobile phone call.

Senator Brandis: I think the best thing to say is that this was circulated for the purposes of it being a basis for discussion with stakeholders, as you heard during the evidence. We will see what refinements that discussion produces. But I do not think it is very productive to, as it were, interrogate a document that is only meant to be the basis for a discussion.

Senator JACINTA COLLINS: I understand that. I suppose I am just giving some examples of why I am curious, from looking at the document, as to what the process is. Thank you for taking me back to that path. We got to the working group, which is meeting again tomorrow. How long do you anticipate the process will take, of all of those participating in the working group, before we get to what might be closer to essentially an agreed definition of 'metadata.'

Mr Moraitis : We would like to be in a position to be able to finalise our report to government sometime in the next week or so.

Senator JACINTA COLLINS: Is there a process envisaged there to discuss these issues with the opposition prior to getting to the stage of draft regulations?

Senator Brandis: Apparently, you are not aware that—

Senator JACINTA COLLINS: I said the 'joint committee.'

Senator Brandis: this is the subject of a current reference to the Parliamentary Joint Committee on Intelligence and Security, which is due to report on the matter by 27 February next year.

Mr Moraitis : It is first meeting on 17 December.

Senator JACINTA COLLINS: So you are looking at some interaction—

Mr Moraitis : Oh, yes.

Senator JACINTA COLLINS: back and forth between the two?

Mr Moraitis : Absolutely.

Senator JACINTA COLLINS: Were there, in fact, draft regulations ahead of the joint committee reporting that would presumably facilitate that process?

Senator Brandis: I am not obviously running the committee's process, but the fact that the report is due by 27 February should give you some indication as to the timing we have in mind here.

Senator JACINTA COLLINS: You mentioned that the oversight agencies were canvassed in relation to the bill. Is that the end of that process for them or is there further consideration of oversight measures to go forward with?

Senator Brandis: What has happened in the past and what I would envisage will happen on this occasion is that the PJCIS report will of course be sent to the agencies and if there are recommendations for amendments to the bill, which there may or may not be, then no doubt the agency's comments on those proposals will be sought.

Ms Jones : If I could just add that, through the PJCIS inquiry process, we would expect that all the oversight bodies would be making submissions and potentially appearing before the committee at its public hearings. We will continue to engage with them as we have throughout the course of the development of this piece of draft legislation.

Senator JACINTA COLLINS: The joint committee has made recommendations in the past in relation to were a metadata scheme to proceed that that addresses the issues of cost, encryption and breach notification. Are they being addressed by government at this stage?

Senator Brandis: The government's position about this is informed, among other things, by the report to which you refer.

Senator JACINTA COLLINS: Your thinking is being informed. Is there a time frame for when we might see an outcome of that process?

Senator Brandis: The legislation is being returned to the parliament in the autumn sittings, after the PJCIS report.

Senator JACINTA COLLINS: So there may be further amendments to address those issues?

Senator Brandis: I did not say that. You asked about a time frame. But we of course will consider what the PJCIS has to say to us. As you know—I do not want to be tedious, because I have said this before, but let me say it once more—we regard this as a collaborative process. We acknowledge and thank the opposition for its cooperation in the other tranches of national security legislation. We regard the PJCIS very highly. We regard its role as a contributor to the development of this legislation as an important role, and we see the dialogue between the executive government and the parliament, in particular as represented by the PJCIS, to be an integral and useful part of this process.

Senator JACINTA COLLINS: Yes, Attorney; I understand all of those aspects, thank you, but, aside from what is currently in this bill, there are a range of other significant issues around metadata, aside from the definitional ones that we have just been talking about—such as the cost, such as additional oversight measures or privacy measures. I am trying to understand where you see those matters being addressed within this process.

Senator Brandis: They are being addressed, among other things, in the consultations that Mr Moraitis and Ms Jones have referred to. Mr Turnbull, who introduced this legislation in the House of Representatives, made it clear in his second reading speech that that was the case.

Senator JACINTA COLLINS: Another issue that has arisen is around how the scheme may be used. We talked earlier about the broad number of agencies that currently can access material and how the bill limits those. The other issue is around, I think, your comments that serious crimes—stressing 'serious'—are targeted by this scheme. How is that to be established?

Senator Brandis: Let us project our minds forward to the day when the scheme is up and running. Then enforcement issues, of course, are a matter not for government but for the agencies, both the security agencies and the law enforcement agencies.

Senator JACINTA COLLINS: So the legislation itself will not limit the potential scope that metadata may be used by agencies?

Senator Brandis: Senator, I think a useful way for you to try to understand this is to look at the narrowing, as you say, of the scope and number of the agencies which are covered now. For example, bizarrely, the RSPCA is able to access metadata at the moment.

Senator JACINTA COLLINS: I would like to know how they got there in the first place.

Senator Brandis: Indeed, but we have reduced from I think it was more than 70 to a very small number the agencies that can access metadata. We have actually been criticised for being too sparing in our definition, but that is a privacy protection. The agencies that can do this are limited to the Australian Security Intelligence Organisation, the Australian Federal Police, for example, ASIS. So the nature and seriousness of the work of those agencies I think gives you some indication. Do you want me to read the list to you? It has just been handed to me. It is the Australian Federal Police, state police, the Australian Commission for Law Enforcement Integrity, the Australian Crime Commission, the Australian Customs and Border Protection Service, the Independent Commission Against Corruption, the Police Integrity Commission, the IMAC, the Crime and Corruption Commission of Queensland, the Corruption and Crime Commission in another state and the Independent Commissioner Against Corruption—those are within the definition of criminal law enforcement agencies. Then there are the intelligence agencies. We are limiting the scope to what are core national security and law enforcement agencies, rather than broader regulatory agencies or even agencies in civil society that may do worthy work but should not have access to this material, in our view.

Senator JACINTA COLLINS: So by limiting it to those agencies, Mr Turnbull's suggestion that retained data could be discovered in civil litigation—for instance, in copyright litigation would not be accurate?

Senator Brandis: I am not familiar with what you are quoting, Senator Collins.

Senator JACINTA COLLINS: Let us use a criminal example. Let us use internet piracy.

Senator Brandis: Internet piracy is a civil wrong, primarily.

Senator JACINTA COLLINS: It could be a criminal wrong, too.

Senator Brandis: Primarily a civil wrong.

Senator JACINTA COLLINS: At your press conference of 30 October, Minister Turnbull and Andrew Colvin confirmed that the scheme could be used to target illegal downloading. I think that is where the example of civil—

Senator Brandis: Senator Collins, you seem to be reading something in indirect speech. I take it that is a media report of what was said. Commissioner Colvin did make some remarks in that regard which he subsequently corrected. I do not recall Mr Turnbull saying anything in relation to that.

Senator JACINTA COLLINS: Let me see what I am actually referring to. This is the transcript of—

Senator Brandis: While you are looking for what you are looking for, can I correct something I said a moment ago, erroneously?

Senator JACINTA COLLINS: Sure.

Senator Brandis: ASIS, I think I said, would have access under this scheme. That is not right. ASIO would have—

Mr Moraitis : I think you said ACC.

Senator Brandis: I misunderstood what Mr Moraitis was whispering to me.

Mr Moraitis : I said ACC.

Senator Brandis: ACC. So ASIS will not have access.

Mr Moraitis : Crime Commission.

Senator JACINTA COLLINS: You are confusing the acronyms.

Senator Brandis: It is an alphabet soup of acronyms.

Senator JACINTA COLLINS: I have been through too many different soups of acronyms in recent times, but yes, I have made that same error. Rather than leaf through all of these attachments, I will put that one on notice. I think I will put a question clarifying this scope issue beyond just the agencies.

Senator Brandis: Senator Collins, when you say the scope issue, there is no ambiguity about the agencies that are defined in the bill.

Senator JACINTA COLLINS: No, that is right.

Senator Brandis: You understand that, do you not?

Senator JACINTA COLLINS: Yes, I do. It is more about—I suppose it goes back to the comment I referred to of yours earlier about this being used for serious crimes.

Senator Brandis: Yes, that is right.

Senator JACINTA COLLINS: And in part that is limited by the serious agencies that have access. But the other issues are the ones that we canvassed earlier in the references inquiry too, which are about I suppose how you define metadata—that also limits the scope—and if there are any other ways limiting the use of this scheme to serious crimes per se, rather than a range of other potentially civil matters.

Senator Brandis: Indeed. I think the problem here is that the term 'metadata' is not a term of art; it is not a technical term. Perhaps the best way to approach this is to say that this is the character, this is the technical description, of what is caught by the legislation, rather than say, 'This is the definition of metadata'. So, we define with particularity and specificity that which is caught. And that is what the consultation group is doing, on the basis of the draft dataset that we have given you.

Senator JACINTA COLLINS: Yes. Now, the references inquiry has also been looking at the issues around costs, so I may leave that there for now—and I think equally the oversight measures that you have told me will be part of the considerations coming out of the joint committee.

CHAIR: In a different area, Mr Moraitis, do you fund the Prime Minister's Literary Awards? Does that come out of your department?

Mr Moraitis : The Minister for the Arts is responsible for the PM's Literary Awards, but I do not have the details of all that at the moment. We had the discussion at the last estimates, and my colleagues—

Senator Brandis: The answer to that question is yes. The arts ministry has been incorporated within the Attorney-General's Department. So, it is not a separate department. It is a ministry that lives within—and for administrative purposes forms part of—the Attorney-General's Department, and those awards are funded from within that budget.

CHAIR: So, out of your budget.

Senator Brandis: Yes.

CHAIR: I only raise that because I understand—I read in the papers—that last Monday night there was the Prime Minister's Literary Awards.

Senator Brandis: Yes, there was.

CHAIR: How did that go? Who won?

Senator Brandis: Well, I can tell you. And if I may say so, it was a tremendous event.

Senator JACINTA COLLINS: But you were not accosted at that one, were you?

Senator Brandis: It was a tremendous event which reflected the Prime Minister's great enthusiasm for Australian writing, he being an Australian author himself—in fact, as I observed on the occasion, the first Australian author in more than a century to go on to become Prime Minister. There were six categories. There was fiction, and there was a joint winner of the fiction category. And if I might be permitted the indulgence of saying so Senator Macdonald, any one of these books would be a marvellous Christmas present. For all of those hundreds of thousands of people listening on the broadcast today, these would be marvellous Christmas presents.

CHAIR: Could you name them?

Senator Brandis: Yes, I can.

CHAIR: I was going to put that on notice, but that might be too late for Christmas presents.

Senator Brandis: Well, I have not done my Christmas shopping yet. The joint winners of the fiction award were Steven Carroll, for his novel A World of Other People, and Richard Flanagan, for The Narrow Road to the Deep North. The winner of the poetry award was Melinda Smith, who published a volume of poetry called Drag Down to Unlock or Place an Emergency Call, which was published by Pitt Street Poetry—a very fine-quality poetry publisher, I might say. There was a nonfiction category, in which the joint winners were Gabrielle Carey, for Moving Among Strangers, and Helen Trinca, for her biography Madeleine: A Life of Madeleine St John.

There were also joint winners of the prize for Australian history: Joan Beaumont, for her book Broken Nation: Australians in the Great War, and Hal Colebatch, for his book Australia's Secret War: How Unionists Sabotaged Our Troops in World War II.The young adult fiction category was won by Felicity Castagna for her book The Incredible Here and Now. Finally, the children's fiction award was won by the well-known children's author Bob Graham for his book Silver Buttons. So those were the winners. The prize in each category was $80,000. This is the most lucrative literary prize in Australia—and one of the most lucrative in the world actually. In three cases the $80,000 was shared by two authors within the same category. All of the shortlisted authors in each of the six categories were awarded a $5,000 prize for making it onto the shortlist.

It was a tremendous event. The Prime Minister spoke movingly and eloquently about his love of reading, writing and literature. Those who have the privilege to be there will not forget the evening. We hope that, in the future, governments of both political persuasions will maintain the status and prestige of this award.

CHAIR: The underlying principle of the awards is to encourage—

Senator Brandis: To promote and encourage Australian writing. The reason I have gone to the trouble of indicating who the winners were is to encourage the Australian book industry as well. These are all Australian authors and they are all published by Australian publishing houses. The President of the Australian Publishers Association, Louise Adler, I think it is fair to say was very much one of the moving spirits behind Monday night's event. This is to promote awareness and appreciation of Australian literature, to reward Australian writers and to support the Australian publishing industry as well. The Prime Minister announced a new policy measure on Monday night—that is, the establishment within my portfolio of the Australian Book Council, which will in future be the body which advises government in relation to publishing in general.

CHAIR: Will they be subject to estimates inquiry in the future? I guess they will.

Senator Brandis: I will be—and for as long as I am in this portfolio the Australian Book Council will be an advisory body, essentially an industry body.

CHAIR: I do not want to take the time of the committee to ask you for a synopsis of each of the winners, but TheNarrow Road to the Deep North sounds like an interesting book that I will have to seek out.

Senator Brandis: That book also won the Man Booker Prize. The Man Booker Prize is a British prize, but this year it was extended to all writing in English—not just from Britain and the Commonwealth nations but from the United States as well. Richard Flanagan, who is a Tasmanian author, won the Man Booker Prize, he shared the Prime Minister's Literary Award for Fiction and, I believe, he also believed the Queensland Premier's Literary Award as well.

CHAIR: What is the name of it again?

Senator Brandis: The Narrow Road to the Deep North. The story revolves around a doctor on the Thai-Burma railway during the Second World War.

CHAIR: That all sounds very positive. But I see in the paper that there has been a bit of disquiet about the winner of the non-fiction category. Is that something of concern to you?

Senator Brandis: There was a little bit of a controversy—which, if I may say so, is a tremendous thing. Other prestigious art prizes—for example, the Archibald Prize—are very often the subject of controversy, and that gives spice and notoriety to the event. So we are very glad there was a bit of controversy. Unfortunately, though, it was a rather mean-spirited controversy. One of the unsuccessful shortlisted candidates for the Australian History Award, Mike Carlton, who was earlier this year sacked by The Sydney Morning Herald for his anti-Semitic journalism, took to Twitter to denounce one of the joint winners of the prize and made some very, very unpleasant and really despicable personal attacks on the chair of that panel, Gerard Henderson, even though he was aware that the panel had actually listed him on the shortlist. So, from all the dozens of entrants into that category, it had put him as one of the five shortlisted candidates and already awarded him a prize of $5,000, but, because he did not win the award or was not named as one of the joint winners, he took to Twitter to attack Gerard Henderson and attack one of the joint winners of the prize, which I thought was pretty poor form. But nevertheless, as I say, controversy in these arts awards is sort of the spice of life, in a sense.

CHAIR: There was a bit of controversy over the fiction area too, I understand.

Senator Brandis: One of the jurors of the fiction and poetry category, the very illustrious Australian poet Les Murray, is quoted in this morning's Australian as saying that the view of the panel was that Steven Carroll's book, which was the joint winner of the fiction award—that is the book I mentioned before, A World of Other People—should have been the sole winner. That is what Mr Murray is quoted as saying in The Australian newspaper this morning. I do not know what occurred in the deliberation among the jurors. The jurors only make recommendations; these are the Prime Minister's awards. They are for him to give to whoever he likes, and specifically the terms of the prize set out that the jurors' recommendations are only recommendations, not decisions, and that it is the Prime Minister's ultimate call. But, in any event, the Prime Minister decided that the prize for the winner of the fiction category should be jointly awarded to Steven Carroll—recommended, according to Mr Murray, by the judges—and to Richard Flanagan, who had only a month or so ago won the Man Booker Prize as well.

CHAIR: How long have these prizes been going?

Senator Brandis: I think they were started by Mr Rudd the first time he was Prime Minister. I think this is their seventh year.

Mr Moraitis : 2007 or 2008; I am not sure.

Senator Brandis: I think this is their seventh year, but the status that has been given to them this year is very considerably greater than ever before, and the fact that, as Richard Flanagan pointed out in his acceptance speech, the Prime Minister actually invested the authority of his office and his presence at the ceremony on Monday night was significant. The Prime Minister and I made a very deliberate decision to elevate the status, prestige and profile of these prizes to encourage literature, to encourage the publishing industry and to send a message, really, to the Australian people that we should cherish, appreciate and nurture—and purchase—the work of our great writers.

CHAIR: Thanks for that. I do not want to keep this going too much longer, because we are at our final time. Anyhow, we might have a few more questions. Have the rules for the prize and the juries changed at all?

Senator Brandis: Not that I am aware. I will check that, but not that I am aware.

CHAIR: So they are the original rules that would have evolved under Mr Rudd, if it was Mr Rudd who first started them.

Senator Brandis: I have not changed the rules. It may be that they were changed during the period of the Labor government. I am not aware that they were, by the way. But I have not changed the rules, and I am the responsible minister, although they are the Prime Minister's awards. But he did discuss the awards with me.

CHAIR: Excellent. Thanks for that. That is all I have. Senator Collins—bearing in mind that we—

Senator JACINTA COLLINS: Yes, I only have one remaining area, and I will probably put most of it on notice. I am interested in understanding what is happening with the Countering Violent Extremism program, given some of our earlier discussion. This program had been in place for years but was not funded in the last budget. But then in August the government announced another $13.4 million to strengthen the program. I am interested in understanding what happened in the transition period. So what happened to the programs that had their funding finish between the last year of 2013-14 and the August announcement?

Ms Lowe : In the period of time between the end of the first program—so the first four-year funded program—and the announcement in August, the Countering Violent Extremism program was effectively mainstreamed into the department. So the program did not come to an end; one component of it did. The grants program, which was an element of the program, did come to an end. But other aspects of the program continued as part of the core functions of the department and, in particular, functions that sit within my position. Activities such as ongoing community consultation and engagement, considering issues around online radicalisation—that still continues. So the policy work and the consultation continue to occur.

The announcement in August of the $13.4 million represented a new phase in that program. It represented a piece of work that we had not been doing previously. While the program had been effectively focused for over four years on community capacity building, building community relationships, the announcement in August indicated that we would add to that piece of work by focusing as well on individuals and the kinds of support networks that are needed to support individuals who perhaps were contemplating travelling to participate in foreign conflicts, had returned or perhaps had been frustrated in their attempts to travel overseas. So it was in addition to the existing program and it was a new element that we had not previously undertaken, focusing very heavily on providing support to individuals at risk.

Senator JACINTA COLLINS: So we are not looking at a reinstitution of the Community Grants Program?

Ms Lowe : An element of the program will be that the support that is provided to the individuals will largely be provided by communities. So there may be an aspect of community capacity building to enable community groups to be in a position to provide the wide range of services that we anticipate may be relevant in the case of individuals at risk.

Senator Brandis: Can I add that some of the community programs have in fact been expanded. Let me give you an example. Under the previous program the AFL was funded to the amount of $120,000 in the past year for a wonderful program called the Bachar Houli Academy, a leadership program which is designed specifically for young Muslim men or Muslim teenagers who want to pursue careers in AFL. Bachar Houli, as you probably know, being a Melbourne girl yourself, Senator Collins, is an AFL player who is said to be, I understand, the first Muslim first grade AFL player. He has, in I find a very inspirational way, and with the cooperation and support of the AFL, developed this program for young Muslim men who want a pathway through to professional football. That was, as I say, funded in the previous year under the previous government's program for $120,000. We have expanded that program, and on Monday afternoon Bachar Houli and I were able to announce that, in the coming year, the program will be funded to the extent of $200,000, which will enable it to have two principal locations. Previously it was based exclusively at the Richmond Football Club in Melbourne. That will continue, but it will now also have a Sydney presence at the GWS Giants in Western Sydney, and the number of—

Senator JACINTA COLLINS: You wouldn't be better off in soccer?

Senator Brandis: Oh, no. Do not underestimate the importance of AFL football in Western Sydney, Senator Collins. The number of young men who will be inducted into the leadership program will increase from 25 to 70—35 in Sydney and 35 in Melbourne.

Senator JACINTA COLLINS: I think I will put on notice, given the time, some questions about what else is happening with the program. Thank you, Attorney. I had actually seen that announcement. But what has happened in the gap in between you have essentially described as a discontinuation of what was previously focused on community building to, now, grants that will be focused on individual rehab and prevention—that area.

Mr Moraitis : The grants will be to support community groups that can play a role in outreach to individuals, which is one of the three key pillars of our new program.

Ms Lowe : That is right.

Senator JACINTA COLLINS: Will that also include rehabilitation and deradicalisation-type programs?

Ms Lowe : That is correct.

Senator JACINTA COLLINS: I will ask you to provide me with a bit more detail on that on notice. That concludes my questions.

CHAIR: I think that finishes us for today. Thank you very much, Attorney and Secretary.

Senator Brandis: Thank you very much, Mr Chairman.

CHAIR: And to your staff; we very much appreciate it. From all of us on the committee to all of you, merry Christmas, and we will see you in February.

Senator Brandis: Happy Christmas to you, Senator Macdonald, and happy Christmas to you too, Senator Collins.

Senator JACINTA COLLINS: Thank you, Senator Brandis.

Committee adjourned at 14:06