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Finance and Public Administration Legislation Committee
11/02/2013
Estimates
PRIME MINISTER AND CABINET PORTFOLIO
Department of the Prime Minister and Cabinet

Department of the Prime Minister and Cabinet

CHAIR: I welcome the minister for Broadband, Communications and the Digital Economy and Leader of the Government in the Senate, Senator the Honourable. Stephen Conroy, representing the Prime Minister and officers of the department. I believe this is the first time you have been before this committee, Senator Conroy: a particularly warm welcome.

We will commence with outcome 1; we normally start with general questions followed by the listed agencies. Officers and senators are familiar with the rules of the Senate governing estimates hearings. If you need assistance the secretary has copies of the rules. I particularly draw the attention of witnesses to an order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised. The committee has set Tuesday, 2 April 2013 as the date by which answers to questions on notice are to be returned. We now go to outcome 1 and general questions.

Senator BRANDIS: I have a question about the caretaker conventions and, in particular, about the guidelines for consultation with the opposition in the pre-election period. I wanted to ask those questions of Dr Watt.

Ms Leon : As you may be aware, it has been practice for quite some time that the Secretary of the Department of the Prime Minister and Cabinet is represented here by his officials. The arrangements for appearance provided for under the guidelines for official witnesses before parliamentary committees provide that the minister can delegate to the secretary of the department to determine who should appear. The secretary has determined that his senior officers will appear.

Senator BRANDIS: So, theoretically, Dr Watt could delegate the most junior officer of the department and that would be sufficient compliance with the guidelines?

Ms Leon : Dr Watt, of course, has to be satisfied that the witnesses who appear will be able to answer the committee's questions, and we who appear before the committee always endeavour to do so with the greatest assistance that we can provide the committee. As the deputy secretary with responsibility for the caretaker conventions, I am very happy to answer any questions you might have about that.

Senator BRANDIS: So you can assure me, Ms Leon, that you will be able to answer all of my questions if those questions are directed to the caretaker conventions.

Ms Leon : I will certainly endeavour to do so.

Senator BRANDIS: Ms Leon, do you have a copy of the conventions to hand?

Ms Leon : I do.

Senator BRANDIS: I have prepared multiple copies of this document for the assistance of the committee, so I will distribute them so that there will be no delay for photocopying documents.

CHAIR: That is very considerate of you. Obviously someone was listening to my opening statement.

Senator BRANDIS: I will arrange for a copy to be made available to the minister, witnesses and members of the committee.

Senator Conroy: What is the document you are tabling?

Senator BRANDIS: I will table a document entitled 'Guidance on caretaker conventions' published by the Department of the Prime Minister and Cabinet in 2010, which I understand to be the most recent iteration of that document. Is it right that the 2010 iteration is the most recent iteration?

Ms Leon : Yes, our practice is in the year leading up to each election we ordinarily review the guidance, taking account of any issues that may have arisen in the last caretaker period and whether we need to incorporate any more specific advice in the guidance. We then reissue the guidance on caretaker conventions for use during the next caretaker period. We have not yet done that for this year. We will shortly embark upon that review and reissue the guidance in time for the next caretaker period.

Senator BRANDIS: The 2010 iteration is the most up-to-date iteration, isn't it?

Ms Leon : Yes.

Senator BRANDIS: I will have those documents put before you, because I want to take you to a couple of other documents.

Senator Conroy: The officer has her own copy.

Senator BRANDIS: I take you to paragraph 1.2 where a definition is given of when the caretaker period begins. It says:

The caretaker period begins at the time the House of Representatives is dissolved …

Ms Leon : That is correct.

Senator BRANDIS: I take you to page 9 of the document and the subheading at paragraph 7.5 Pre-election Consultation with the Opposition. In 7.5.1 it states that guidelines were provided in 1976:

… for pre-election consultation with the Opposition. … The current version of the Guidelines was presented to the Senate on 5 June 1987 and is re-printed below.

If you skip over the page to paragraph 7.5.3 those guidelines for pre-election consultation with the opposition are set out in six paragraphs.

Ms Leon : Yes.

Senator BRANDIS: I am in a position to give you a bundle of documents I have prepared.

CHAIR: I would like to have a flick through them first.

Senator BRANDIS: Can I explain what is in it?

Senator Conroy: Please.

Senator BRANDIS: It is a copy of the document we are currently discussing, the Guidelines on caretaker conventions', a transcript of a speech given by the Prime Minister to the National Press Club on 30 January, a transcript of the Q&A after that speech and a copy of a letter from Mr Abbott to Dr Watt, the secretary of PM&C—

CHAIR: Can I ask where the transcript came from?

Senator BRANDIS: It is the official transcript, 7 February 2013. I will take you to the parts I am interested in in a moment.

CHAIR: We need a resolution for acceptance of these documents. Moved by Senator Brandis. So resolved. Could you take the committee to where you are referring to, Senator Brandis.

Senator BRANDIS: I think it is the last document in the bunch, Guidance on caretaker conventions. We were on page 9, in the item 'Pre-election Consultation with the Opposition'. Paragraph 7.5.2 tells us:

The Guidelines are distinct from the caretaker conventions and commence on a different date. They apply as soon as an election for the House of Representatives is announced or three months before the expiry of the House of Representatives, whichever occurs first.

That is what it says, isn't it?

Ms Leon : Yes, Senator.

Senator BRANDIS: And then the guidelines set out various rights the opposition has in the period of pre-election consultation, which has a longer period than the caretaker period. Do you agree?

Ms Leon : Yes.

Senator BRANDIS: The election was announced on 30 January by the Prime Minister, so may we take it therefore—

Senator Conroy: That is your assertion.

Senator BRANDIS: If I may ask my question in my own words, the election was announced by the Prime Minister on 30 January. So may we take it therefore that the period of pre-election consultation with the opposition began on that day?

Ms Leon : No, that is not my understanding.

Senator BRANDIS: Why not?

Ms Leon : The Prime Minister announced in a speech to National Press Club that she intended to advise the Governor-General to call the election on or around 12 August with the election to be held on 14 September. But she has not yet formally announced the election. That will occur on or around the time that the Prime Minister advises the Governor-General to dissolve the House of Representatives.

Senator BRANDIS: With respect, what you said is wrong.

Senator Conroy: It is your opinion.

Senator BRANDIS: Ms Leon, the Prime Minister did not on 30 January announce that she intended to advise the Governor-General in the manner you have described. She actually announced the election date and those were her words.

Senator Conroy: That is your interpretation of her words.

Senator BRANDIS: I am asking Ms Leon.

Senator Conroy: I get to take the questions, Senator Brandis, and I get to pass them on or add to them if I wish. It is just the rules of the Senate, which you are well aware of. That is your opinion, Senator Brandis.

Senator BRANDIS: Let us see what the Prime Minister said. Would you go to the folder that I put in front of their. You will see there a copy of the Prime Minister's speech of that day. I take you to the second last page of the speech.

Senator Conroy: Can you give us a page number?

Senator BRANDIS: It is not paginated, unhelpfully. That is something that your department could think of.

On the second last page, in the second last paragraph, this is what the Prime Minister said: 'So I today announce'—not 'I intend to'; 'I today announce'—'that later this year I will advise the Governor-General to dissolve the House of Representatives with writs to be issued on Monday 12 August for an election for the House and half of the Senate to be held on Saturday 14 September.' That is what the Prime Minister said. It was not some future possibility—not even an announcement of an intention; it was an announcement.

Senator Conroy: No, sorry; that is your interpretation of those words.

Senator BRANDIS: Is that not what the words say?

Senator Conroy: I disagree. You are entitled to your opinion; I am entitled to mine.

Senator BRANDIS: So, when the Prime Minister says, 'Today I announce,' we are to understand her as saying that she is not in fact making an announcement—is that what you are saying, Senator Conroy?

Senator Conroy: Do not try and put words in my mouth.

Senator BRANDIS: No, I am merely reading to you the Prime Minister's words.

Senator Conroy: We are going to agree to disagree about the interpretation.

Senator BRANDIS: Let me understand this, Senator Conroy: you are declining to allow the official to answer these questions—is that right?

Senator Conroy: No. I was simply saying—

Senator BRANDIS: Okay; then Ms Leon, please?

Senator Conroy: No, I was simply saying—

Senator BRANDIS: If you are not declining to allow the official to answer the question—

Senator Conroy: No, not at all. I did not say any such thing.

Senator BRANDIS: I am directing the question to you, Ms Leon. That is what the words say, isn't it? 'Today I announce'?

Senator Conroy: No. Do not try and put words in her mouth. If you would like to ask a question, ask a question.

Senator BRANDIS: Let us do it this way. Ms Leon, would you please read to the committee, without comment, what the Prime Minister says in the second last paragraph of the second last page of the transcript of her speech.

Ms Leon : I am here to answer questions, and I thought the question that you had asked me—

Senator BRANDIS: No, no—

CHAIR: Senator Brandis! I will ask you to come to order. Ms Leon was in the process of answering your question; will you allow her to. I will remind all senators—do not get overexcited; it is still early in the day—that the witness was asked a question. It is common courtesy to allow the witness to respond according to the way that she wants to answer the question that will be most helpful to the committee. Ms Leon, you have the call.

Ms Leon : So, referring to the question you asked me, about the passage of the Prime Minister's speech that you had read—

Senator BRANDIS: Yes. Please read it back to me.

CHAIR: Senator Brandis, will you just allow the witness to respond, in silence.

Ms Leon : So you would like me to read the passage that you have just read?

Senator BRANDIS: Well, indeed, because, you see, Senator Conroy is saying that I am putting a gloss on the words. So let us hear from the government—

Senator Conroy: Do not put words into my mouth. I said that is your interpretation.

Senator BRANDIS: Let us hear from the government what the Prime Minister's very words were. Ms Leon?

Ms Leon : Senator Brandis, I do not in any way disagree with the words that you read as a direct quote from the transcript.

Senator BRANDIS: Let us read them back, please.

Senator Conroy: I am not sure you can demand that an officer read something. You can ask questions about it. No-one is disagreeing or disputing the words that you have already read out. The disagreement is in the interpretation.

Senator BRANDIS: Ms Leon, would you read the passage for me, please?

Ms Leon : I am happy to do so, and then I will answer your question. The Prime Minister said on 30 January, 'So I today announce that later this year I will advise the Governor-General to dissolve the House of Representatives with writs to be issued on Monday 12 August for an election for the House and half of the Senate to be held on Saturday 14 September.'

Senator BRANDIS: Ms Leon, is it your contention that those words are not the announcement of an election for the House of Representatives?

Ms Leon : That is correct. You will see that—

Senator BRANDIS: That is your contention?

Ms Leon : You will see that the Prime Minister expressed herself in the future tense—that she 'will' advise the Governor-General; she has not yet done so.

Senator BRANDIS: Ms Leon, can you help me here?

Senator Conroy: I doubt that!

Senator BRANDIS: In what tense would you express the announcement of a future event other than the future tense?

Ms Leon : The future event to which the Prime Minister referred was her advice to the Governor-General—

Senator BRANDIS: Not the election?

Ms Leon : 'I will advise the Governor-General', and, until she has so advised the Governor-General, an election has not been called.

Senator BRANDIS: Ms Leon, you understand, don't you, that your department, and in particular the secretary of the department whom you represent here this afternoon, is the custodian of the caretaker conventions and these conventions too, the conventions set out in paragraph 7.5.3 of your document?

Ms Leon : The guidelines to which you are referring, as they state in their terms, are not part of the caretaker conventions—

Senator BRANDIS: They are republished within the caretaker conventions.

Ms Leon : They are reprinted for the assistance of readers of the conventions as a reference to another issue which readers of the caretaker conventions may wish to be reminded of, but they are, as they say, distinct from the caretaker conventions. They are not guidelines that were produced by, or are amended from time to time, by the department. They were tabled by the then government when they were developed in 1976. They are reprinted just to be of assistance, but they are not part of the caretaker conventions and the department does not manage and amend them from time to time as we do with the caretaker conventions on which we do provide advice.

Senator BRANDIS: Are you telling me, therefore, that the department has no role in the implementation of the guidelines, that is, the guidelines set out in paragraph 7.5.3? If you read those guidelines to yourself, they seem to contemplate that the Public Service—and your boss, Dr Watt is the head of the Public Service—will have quite an active role in the implementation and observance of the guidelines.

Ms Leon : I do not think that I said that we have no role in relation to them. I was trying to set out for the assistance of the committee the distinction between the caretaker conventions and the guidelines on pre-election consultation.

Senator BRANDIS: I think that we have already established that—that is why I asked you the first question that I did. Ms Leon, do you accept that an independent Public Service observing Public Service values would implement and observe the pre-election guidelines for consultation with the opposition with integrity?

Ms Leon : Absolutely.

Senator BRANDIS: Therefore, does your view that the Public Service would approach this task with integrity extend to arriving at an independent view, that is a view independent of the political arm of government, as to what the terms in the guidelines mean?

Ms Leon : Yes, Senator.

Senator BRANDIS: So is it your evidence to the committee, therefore, that the view that you have expressed is a view arrived that by your department free of any influence from the political level of the government?

Ms Leon : It certainly is, Senator.

Senator BRANDIS: So, Ms Leon, it wouldn't be true to say that the Prime Minister's views were consulted about the meaning of the guidelines and in particular about the meaning of the phrase 'from the time the election is announced'?

Ms Leon : Let me take you through the process—

Senator BRANDIS: No, answer my question, please. I did not ask you what the process was—

Senator Conroy: You don't get to interrupt the witnesses and tell her how to answer your questions. Let the officer finish answering.

CHAIR: Order! Senator Brandis and Minister, I will explain it again. You know very well what the process is. I cannot direct the witness on how to respond. Please allow the witness to respond to the question, then you are at liberty to follow that up with further questions. Ms Leon has the call.

Senator BRANDIS: If I may respond, I asked whether or not—

Senator Conroy: Respond to what?

Senator BRANDIS: a certain proposition would be true or false and she said, 'Let me explain the process to you.' I want to ask about the process and I will in my own good time later in these questions, but I would like an answer to the question I asked.

Senator Conroy: As she sees fit, not as you see fit. Stop trying to badger the officers. Let the officer answer the question.

CHAIR: Ms Leon, do you need the question repeated?

Ms Leon : No, I understand the question, Senator, and in order to answer it I need to tell you the process by which the department arrived at its view and the process by which the government comes to its view as to the meaning of that phrase in the guidelines.

Senator BRANDIS: Just so I can understand what you are saying: when you say that the department comes to its view and the government comes to its view, are you making a distinction between the two?

Ms Leon : When I set out the process I think you will then see the distinction between them, Senator. That is why I am trying to explain the steps that we have been through, for your assistance, in order for you to understand the role of the department and the role of the government.

Senator Conroy: Can you let the officer finish her answer?

Senator BRANDIS: The issue that I am interested in exploring with you—and, for the moment, the only issue that I am interested in exploring with you—is whether the Prime Minister's statement on 30 January at the National Press Club was an announcement of the election within the meaning of paragraph 7.5.2 of the guidelines.

Senator Conroy: That has actually already been answered, Senator Brandis.

Senator BRANDIS: Ms Leon, that is the only issue that I am interested in exploring with you for the moment—though we will get on to other matters.

Senator Conroy: Will you allow the officer to finish her answer?

Senator BRANDIS: I asked you how the department arrived at that view. Ms Leon, you misstated the Prime Minister's statement by saying that she said that it was her intention to do something. Now, as in the paragraph I asked you to read back to the committee, we know that she did not say that.

Senator Conroy: Stop trying to put words into officer's mouth.

Senator BRANDIS: So, to the extent to which you represent the view of the department, have you not misunderstood the Prime Minister's statement?

Senator Conroy: Stop trying to put words into the officer's mouth and let her answer the question. Will you let her answer the question?

Senator BRANDIS: Ms Leon?

Ms Leon : Which question would you like me to answer? I have three before me now.

Senator BRANDIS: Ms Leon, don't smirk at me.

CHAIR: Senator Brandis!

Senator BRANDIS: Ms Leon, your professional integrity as an officer is—

Senator Conroy: You trumpet off like—

Senator BRANDIS: We are entitled to know—

Senator Conroy: Do not sit here and try to intimidate an officer.

CHAIR: Minister and Senator Brandis, this is not helpful.

Senator BRANDIS: We are to know—

Senator Conroy: You gave yourself a QC.

CHAIR: Senator Brandis, I call you to order! We can adjourn if that would be helpful for senators to compose themselves. The process under the estimates proceedings is that you put a question to the witness and then you allow the witness to respond. I cannot direct the witness but, as you well know, the minister can intervene and either contribute to the answer or take the question himself. Would you kindly allow Ms Leon to continue her response uninterrupted—because it is not helpful to Hansard for this continual dialogue across the witness between you and the minister.

Senator BRANDIS: That is fine, Madam Chair.

CHAIR: Ms Leon, you did query which question. Do you need any further clarification?

Senator BRANDIS: I am happy to respond to Ms Leon's request for clarification.

CHAIR: I am sorry, but I just put a question to Ms Leon. Would you mind if she actually responds to me as chair?

Ms Leon : Chair, my understanding is that the questions that are before me at the moment are: have I misstated what the Prime Minister said at the Press Club on 30 January, which—

Senator BRANDIS: Well, we know you did by using the word 'intention'.

Senator Conroy: Do not make outrageous accusations against the integrity of the officer, Senator Brandis.

Ms Leon : I will answer; whether the department formed its view about the interpretation of the guidance on pre-election consultations in consultation with the Prime Minister or not; and what was the process by which we arrived at our view. They are what I understand to be the three questions before me. If that is not correct, I am happy to be asked a fresh question.

Senator BRANDIS: We know the answer to question No. 1 and I did not ask you question No. 3. So let us concentrated on question No. 2.

Ms Leon : Can I start, Senator, by saying that I regret if you interpreted my smile, which was intended to keep a friendliness and lightness in the atmosphere, as anything in anyway disrespectful—because, of course, it was not.

Senator BRANDIS: I just want answers to my questions.

Ms Leon : I would like to assure the chair and all the members of the committee that I, as a regular witness before committees, endeavour to answer its questions accurately and with integrity and that I have never, ever smirked at or any way expressed disrespect towards a member of the committee. In relation to whether the department formed its view about the pre-election consultation period under any—I think the words were—pressure or influence, and I am happy to be corrected if those weren't the words, from the government, no, we did not. If you would like me to take you through the process by which we arrived that that view, then I am happy to do so.

Senator BRANDIS: Were the Prime Minister's views sought as to what was the relevant date for the purposes of paragraph 7.5.2 of the guidelines?

Ms Leon : The Prime Minister was advised once the department had formed its view as to what our view of the guidance was and the Prime Minister confirmed that that would also be her view.

Senator BRANDIS: At the time the department arrived at its view neither the Prime Minister nor anyone on her behalf such as a person in her office, any member of what we might call the political level of government, had been consulted—is that right?

Ms Leon : I certainly had not consulted the Prime Minister and, if I had referred the question of our consideration of that period to the Prime Minister's office, it was on the basis that it was for their information that it was a matter on which we would need to arrive at a view. But I did not seek their views; we formed our view prior to putting any view to the office or the Prime Minister.

Senator BRANDIS: Given, Ms Leon, that both the conventions, the caretaker conventions and the guidelines for pre-election consultation, are developed for the purpose of ensuring that there is in a pre-election period a greater level of neutrality than in a normal governing period, would you agree with me that it is particularly important in relation to the interpretation of both the caretaker conventions and the guidelines that those in the public service who interpret them act with complete independence from the political level of government?

Senator Conroy: You would assist the committee, Senator Brandis, if you could stop asking if everyone agrees with you and just phrase your question in a very straightforward manner rather than the big story and narrative for five minutes before you say, 'Do you agree with?'

Senator BRANDIS: Senator Conroy, I will ask my questions in my own way, I put the propositions to the witness and I ask—

Senator Conroy: No, you are trying to put words into witness's mouths and—

Senator BRANDIS: I am perfectly at liberty, as you know, Senator Conroy, to ask the propositions. In fact it would be unfair to the witness not to.

Senator Conroy: I simply asked if you could assist.

Senator BRANDIS: Ms Leon, you heard my question. Do you agree with that proposition?

Ms Leon : The public service and in particular the Department of the Prime Minister and Cabinet approaches all of its tasks with complete integrity and a clear focus on what our proper role is. In relation to the caretaker conventions, as I think I set out, they are distinct from the guidelines on pre-election consultation.

Senator BRANDIS: We have established that.

Ms Leon : So they are somewhat different as to our treatment of them. The caretaker conventions are ones on which the department regularly provides advice, both before and in particular during caretaker, and does so without reference to the government of the day in the sense—unless we are seeking to give advice to the government of the day as to what they can and cannot do. They are guidelines that the department of the Prime Minister and Cabinet is responsible for. The guidelines on pre-election consultation were and are a product of the then government. They may have been the subject of consultation with the then opposition but they are guidelines that were produced by and, ultimately, belong to what you are calling the political arm of government.

You will note in the guidelines that, even in relation to pre-election consultation, the call for whether briefing is to be agreed or not still rests with the relevant minister. So they do have an intersection with the political arm of government in a way that the caretaker conventions are much more deliberately at arm's length from the government and on which advice is independently provided by the department. Nevertheless the Prime Minister, as with anything that is within her responsibilities and for which we advise her, received our advice about what we understand to be the meaning of that part of the guidelines and confirmed that she shared our view as to when the pre-election consultation period would begin in the current circumstances.

Senator BRANDIS: Why did you do that? Why was the Prime Minister's view relevant to the interpretation of a definition?

Ms Leon : As you have already referred to, the secretary of the department had received a letter from the Leader of the Opposition that required us to form a view about pre-election consultations more quickly than we might otherwise have needed to, but we had already turned our mind to the fact that at some stage this year there would be a period of pre-election consultation, so we would have had to form a view about when that commenced. Because these guidelines as I have set out are not part of the caretaker conventions but were issued by the then government, it was not appropriate for us to form a view about when the pre-election consultation period would commence independently of the current government. So we formed our own view, but we did have to seek the Prime Minister's confirmation before replying to the Leader of the Opposition as to when the period for pre-election consultations would commence.

Senator BRANDIS: Thank you for your candour. I find it quite extraordinary that, in response to a letter directed, advertently, to the head of the Public Service by the Leader of the Opposition, the head of the Public Service should ask the Prime Minister, the head of the political arm of government, what her views were rather than express his own. That is what it amounts to.

Ms Leon : I am sorry, that is not what I said.

Senator Conroy: That is not what she said at all.

Ms Leon : I expressly set out that the department independently formed a view as to the interpretation of this aspect and then briefed the Prime Minister because the guidelines belong to the government, not to the department.

Senator BRANDIS: Was the view that the department formed prior to briefing the Prime Minister the same view as the Prime Minister expressed?

Ms Leon : Yes.

Senator BRANDIS: Prior to forming that view—that is, the view that you took to the Prime Minister when you briefed her—had there been discussions with the Prime Minister's office by officers of your department about this matter?

Ms Leon : I think I adverted to the fact that we had flagged with the adviser in the office that we would need to come to a view about when the pre-election period commenced, but we did not seek any direction, guidance or input into that decision-making process by the office, nor did we receive any.

Senator BRANDIS: My only interest here is how the department arrived at its view about whether an election for the House of Representatives was announced by the Prime Minister on 30 January. In arriving at its view on whether the Prime Minister's speech constituted the announcement of an election within the meaning of paragraph 7.5.2, did the officer of the department who wrote the first draft of the advice read the Prime Minister's speech?

Ms Leon : I think I am fairly confident in saying that we would have all watched the Prime Minister's speech, and we have certainly distributed the transcript to all officers of the department so they have the opportunity to read it. But I am happy to set out for you how and why we reached the view that we reached.

Senator BRANDIS: I am after something slightly different. I want to focus on whether or not what the Prime Minister said at the National Press Club was the basis of the advice that was subsequently given. We have discussed—

Senator Conroy: I think that has been asked and answered.

Senator BRANDIS: We have discussed what the Prime Minister said in the paragraph that you, at my request, read back to the committee, which does not use the word 'intention'. I take you to the next document in that bundle that I put in front of you, which is the transcript of the Prime Minister's Q&A at the National Press Club on 30 January. Unhelpfully, it is not paginated, but I take you to the third page. About one-quarter of the way down the page, there is a question from the journalist Sid Maher. Then the Prime Minister's answer is given. Commencing on line 3, she says:

I have always said that the Parliament would serve full-term, always said it. I’ve said it in the days that the hysteria about the life of this Parliament was at its maximum effect. Said it in those days because it was right then, I’m saying it now because it’s right now. And I’ve given you the date.

That is what she said, is it not? Then, down about another four or five lines, she says:

So in the interests of certainty, in the interests of transparency, in the interests of good governance I’ve made the date clear today.

Then, in the last two lines of her answer, she says:

I consulted with the Deputy Prime Minister and a few senior colleagues. I discussed with them the decision I’d come to over the summer and I’m announcing it today.

That is what she said, is it not?

Ms Leon : Yes.

Senator BRANDIS: If I could take you to the next page and the Prime Minister's answer to the question from Kieran Gilbert. She says:

I think there will probably be a debate about that because of the decision I’ve announced today.

Then, at the end of that answer, she says:

And I thought it was good to give people certainty, so I have.

That is right, is it not?

Ms Leon : Yes.

Senator Conroy: You have correctly read out the transcript.

Senator BRANDIS: I could have asked Ms Leon to do it, but let us just establish—

Senator Conroy: You have saved time. You have correctly read out the transcript. Do you have a question?

Senator BRANDIS: Can I ask you to go to the seventh page of the document. You will see there is a question from Lyndal Curtis of ABC News 24. Do you see that?

Ms Leon : Yes.

Senator BRANDIS: The Prime Minister's answer immediately thereafter on line 6; just read out what she says in the sentence on the 6th page after the words 'the May budget'.

Senator Conroy: You can ask the officer questions; you cannot ask them to do your job for you. Read it out, Senator Brandis, I am sure you will get it correct.

Senator BRANDIS: Let me read it out. She says:

There will be an election on 14 September.

That is what the Prime Minister said, is it not?

Senator Conroy: You have correctly read out the sentence.

Senator BRANDIS: Your view, Ms Leon, is that that is not the announcement of the election date.

Senator Conroy: Don't put words in the officer's mouth.

Ms Leon : I think I said earlier that the Prime Minister announced that she will advise the Governor-General for an election but she has not yet done so.

Senator BRANDIS: She may have said that in the speech but not in the answers to the questions.

Senator Conroy: Please. She was very straightforward in her announcement.

Senator BRANDIS: In the answers to the questions when she was pursued by the journalists about the election date, there is no qualification, there is no constitutional niceties being genuflected to. The Prime Minister says, 'I have announced it today.' Can I take you to the next page?

Ms Leon : No, Senator, the Prime Minister cannot herself call an election.

Senator BRANDIS: I am familiar with the constitutional provisions.

Ms Leon : She has to go to the Governor-General for that purpose and she has not yet done so.

Senator BRANDIS: Everybody in the room is probably familiar with the constitutional provisions—

Senator Conroy: Not as well as you know them.

Senator BRANDIS: What you seem to have done is to conflate the constitutional procedure with the words in paragraph 7.52 and announce—

Senator Conroy: That is your opinion.

Senator BRANDIS: Can I suggest to you, Ms Leon, that that is process of reasoning that seems to have been adopted by the department.

Senator Conroy: You cannot put words in the officer's mouth. Would you like the officer to take you through the reasoning seeing as you keep alluding to the reasoning?

Ms Leon : I am happy to take you through the process.

Senator BRANDIS: I am not quite finished with the exercise. If you go to the next page of the transcript of the Prime Minister's Q&A, there is a question from David Speers of Sky News about the election falling on Yom Kippur. Did you see that?

Ms Leon : Yes.

Senator BRANDIS: If you look at the Prime Minister's answer to that question, about halfway down she says:

On my thinking, my decision is about election day 2013—

Not the Governor-General's decision, according to this Prime Minister, but her own—

And I've made it.

I just want you to check that so it is verified.

Senator Conroy: We agree that you have read it out correctly.

Senator BRANDIS: She says:

So I've exercised traditional prime ministerial prerogative. I've just done it in an unusual fashion and taken everybody into my confidence at a far earlier stage than is done, and I'm pleased to be able to do so.

I think it gives certainty and shape to the year that Australians having lived through last year are entitled to.

Senator Conroy: Congratulations. You have again correctly read out the transcript.

Senator BRANDIS: And then, at the foot of the very same page, is a question about the Bulldogs. The Prime Minister says, 'Well, on football and the Bulldogs, I've given you the election date. I can't give you the Grand Final winner.' Lastly, Ms Leon, on the last page of the transcript of the Q&A, there is a question from a journalist called Sam, who I assume is Samantha Maiden, and halfway down the page the Prime Minister says:

Let me assure you, as I did in the speech, my purpose here is not to see the longest election campaign. Quite the reverse. I know people are being treated to mini-campaigning and the like so people were already potentially having to settle in for a long campaign. That is the exact opposite of my perspective about fixing the date today.

I want to be clear with people. What they will see me do over the coming months is the work of government and that is because I said in the speech time is not for wasting. We have got big things we need to do and I'm going to get them done and they will be submitted to the judgment of the Australian people now on a fixed time and people can outline what they think and why they think it on 14 September.

Senator Conroy: You've convinced me you can read. Can you convince me that 14 September is the election date?

Senator BRANDIS: That is what the Prime Minister said in regard to an answer to Samantha Maiden, is it not?

Senator Conroy: Do you have a question? You correctly read out the transcript, now do you have a question?

Senator BRANDIS: Yes, do you agree with me that that is what the Prime Minister said?

Senator Conroy: You have correctly read out the transcript.

Senator BRANDIS: Ms Leon?

Senator Conroy: I have answered the question.

Senator BRANDIS: Ms Leon, do you agree?

Ms Leon : I agree that what you have read out matches the transcript in front of us, yes.

Senator BRANDIS: On six occasions during the course of the Q&A, the Prime Minister said in, may I suggest to you, entirely unambiguous terms that the election was going to be on 14 September. No constitutional niceties about advising the Governor-General, although we know that as a matter of constitutional process that would need to be done. Is the Department of the Prime Minister and Cabinet the only body of men and women in Australia who did not think that in her Press Club speech the Prime Minister was announcing an election for 14 September?

Senator FAULKNER: That question needs to be out of order.

Senator Conroy: You cannot keep asking opinions of the officers. Would you like to ask your question—

Senator BRANDIS: I am not asking a question about policy.

Senator Conroy: That does not matter. You cannot ask officers for opinions.

Senator BRANDIS: Seriously, though.

Senator Conroy: Seriously, though, Senator Brandis, do you know the rules of the Senate?

Senator BRANDIS: Ms Leon, in none of the six answers to journalists' questions that I have taken you to, and which you have affirmed are an accurate transcription of what the Prime Minister said, did she say, 'It is my intention to go to Yarralumla on 12 August and ask for an election on 14 September.' In each of those six occasions she said, unambiguously, the election will be on 14 September, didn't she?

Senator Conroy: Senator Brandis, you have correctly read out the transcript. Do you have a question? We have already agreed with you that—

Senator BRANDIS: You might be unfamiliar with the interrogative form, Senator Conroy. Did she not—

Senator Conroy: You do not get to direct questions except through me, Senator Brandis. Those are the rules.

Senator BRANDIS: So you are prohibiting the answer. Let us get this straight: you are prohibiting the witness from answering my question: did not the Prime Minister in each of those six answers to journalists' questions on 30 January make it clear that the election was going to be on 14 September?

Senator Conroy: The officer has already answered your question that you correctly read out the transcript. Do you have another question other than a long-winded attempt to ask the same question twice?

Senator BRANDIS: I do. Ms Leon?

Ms Leon : I do not think that much is achieved by parsing the Prime Minister's answers.

Senator BRANDIS: I gave you the full quotes. Do you know what 'parsing' means?

Senator Conroy: We cannot all be as smart as you. We are not all as smart as you, Senator Brandis.

CHAIR: Senator Brandis and Minister Conroy, I call you to order! This is not helpful to Hansard recordings. It is not helpful for interjections to happen continually after you have put a question to the witness. I remind Senator Brandis of the standing orders—which I am sure I do not have to, because you are a learned lawyer—that say the officer can refer questions to the minister and the minister can take the question, as you well know. I remind each and every senator that, if you put a question to the witness, please pay them the courtesy of allowing them to finish their answer without continual interruption.

Senator BRANDIS: Thank you.

Ms Leon : If we were to parse the Prime Minister's answers to questions we would identify that on some occasions she refers to 'fixing the date' and on other occasions she refers to 'her decision'. One could seek to draw distinctions between what the Prime Minister is able to decide and when an election is called. But I think the preferable way to approach this—bearing in mind that I am sure that when ministers are answering questions from journalists they are usually trying to use straightforward language rather than constitutional processed niceties—is to look at the effect of the Prime Minister's announcement and the purpose of the guidelines on pre-election consultation in order to arrive at a proper interpretation of the guidelines. In doing so, I have so far referred to the effect of the Prime Minister's announcement, which is that all she can do, all that it is within her power to do at the moment, is to announce her intention to advise the Governor-General of a particular time for the dissolution of the House of Representatives. It is not within her power to do any more than that at this time. Until she actually advises the Governor-General to dissolve the House of Representatives then the date has not been set.

And so, if I can turn to the second part of making sense of the announcement in the context of the guidelines, it is worthwhile alluding to—and it certainly is what we turned our minds to in coming to an interpretation of the guidelines—the purpose of the guidelines. Although this is not a statute, and so we are not applying a statutory interpretation process to it, it nevertheless is a similar process of reasoning that we would apply if we were interpreting a statute or a legal document; that is, to look at the purpose of the guidelines, which is to ensure that in the immediate lead-up to an election there is an opportunity, if the relevant minister and Prime Minister agree, to give information about administrative matters to the potential incoming government. Since that purpose is intended to apply from a period specified, which is three months prior to the expiry of the House, or the date of announcement, it seems to us that this is intended to mean that the period is applying to the immediate pre-election period which, once an election has been called, has clearly been activated. But if we are starting to get towards the end of the term of government such that an election must be called soon then it can be triggered by the three-months-prior period arriving before that calling of the election.

Senator BRANDIS: In that answer you made a number of observations that I would like to explore with you. First of all, this is not a question, but I want to put it on the record if I may: it is not right to say that I was always asking you to parse the Prime Minister's words. The very reason I took you through full sentences and, in some cases, whole passages of the Prime Minister's press conference transcript was so that it could not honestly be said that what was being put to you was a distorted or artificially limited excerpt out of context. You understand that, don't you?

Ms Leon : Yes.

Senator BRANDIS: Ms Leon, you said you adjured us against 'constitutional process niceties'.

Ms Leon : I do not think I said that.

Senator BRANDIS: That was your phrase, 'constitutional process niceties'.

Ms Leon : I said that a minister answering questions of a journalist would ordinarily answer in as straight forward a way as possible—

Senator BRANDIS: That is right.

Ms Leon : —and would not in answers to questions be likely to complicate those answers with constitutional process niceties.

Senator BRANDIS: Absolutely.

Senator Conroy: I think George here is the one exception to that. He has to show off.

Ms Leon : I do not think that I, of all people, would adjure this committee to ignore constitutional process niceties.

Senator BRANDIS: That is my whole point because one thing you also said, which I agree with, is that this document, the conventions which include a recitation of the guidelines—although we all agree they are distinct—is not a statute. It is not to be read as a statute and, therefore, when the document uses the words 'as soon as an election for the House of Representatives is announced' then that is to be understood in the ordinary common speech meaning of those words—

Senator Conroy: In your view.

Senator BRANDIS: —not as a matter of constitutional law. Do you agree with that?

Senator Conroy: I am sorry, you cannot ask the officer to agree with your opinion.

Senator BRANDIS: Yes I can. I am putting a proposition to her and asking whether or not she agrees with it.

Senator Conroy: You are asking her to agree with your opinion. Do you have a question that is not around your opinion?

Senator BRANDIS: Ms Leon, I am really agreeing with you. This document is not to be, as you say, read as a statute. So when we try and work out whether an election for the House of Representatives has been announced, do we not apply the ordinary common speech meaning of the term?

Senator Conroy: The officer has already answered that question, Senator Brandis, and now you are seeking to ask if everyone in the room agrees with you.

Senator BRANDIS: Ms Leon, I am asking you whether you agree with that proposition that the words in that part of the document are to be interpreted in the ordinary plain speech meaning of the words 'as soon as an election for the House of Representatives is announced'?

Ms Leon : I would not ever interpret a word out of its context.

Senator BRANDIS: I am giving you the full context. Shall I read you the full paragraph?

Ms Leon : The context of the document includes the purpose for which these guidelines were produced. The purpose for which the guidelines were produced was in order to facilitate appropriate access by opposition members to information about administration and implementation and so on in the immediate lead up to an election. And so it would be unwise and probably artificial of me or any other person reading the document to read the words stripped of their context and purpose. I do not think that is an approach to words that is limited to reading legal documents. I think there are a series of quite specific rules around statutory interpretation that are really a more highly defined version of what would be the ordinary and common-sense approach to reading any document which includes having regard to its context and purpose.

Senator BRANDIS: When in the six answers to which I took you in the Q and A, the Prime Minister said variously, 'I have given you the date. I have announced the date today. There will be an election on 14 September. My decision is about election day 2013 and I have made it. I have given you the election day. It is about fixing the date today.'

Senator Conroy: Do you have a question?

Senator BRANDIS: On what possible view of the English language does that not constitute the announcement of an election for the House of Representatives?

Senator Conroy: That is your opinion, Senator Brandis. The officer has answered your questions.

Ms Leon : I am happy to say again that the Prime Minister announced that she will advise the Governor-General on or around 12 August to dissolve the House of Representatives but she has not yet done so.

Senator BRANDIS: Can you answer my question. On what possible plain speech interpretation—

Ms Leon : That is my answer.

Senator BRANDIS: Ms Leon, are you familiar with this: when I use the word 'Humpty Dumpty said' in a rather scornful tone, it means just what I choose it to mean neither more nor less. The question is whether you can make words mean different things.

Senator Conroy: Do you have a question, Senator Brandis, other than reading out Humpty Dumpty endlessly?

Senator BRANDIS: 'The question is', said Humpty Dumpty, 'which is to be master?' That is all. That is the only authority.

Senator Conroy: Can you rule the question out of order? You are not asking a question

CHAIR: Senator Brandis, have you got a question?

Senator BRANDIS: Your extraordinary interpretation of the meaning of words—

CHAIR: Senator Brandis, do you have a question relating to these estimates?

Senator BRANDIS: I will give you one more opportunity to respond—

Senator Conroy: That is so good of you, Senator Brandis.

Senator BRANDIS: —without distorting meaning beyond what the words will bear. How is 'I have given you the date. I have announced the date today.'

Senator Conroy: Stamp your feet a bit harder, Senator Brandis.

Senator BRANDIS: There will be an election on 14 September. My decision is about election date 2013 and I have made it. I have given you the election date and I am fixing the date today—

Senator Conroy: We all know your opinion, of yourself and the words.

Senator BRANDIS: On what basis do you say that on the plain meaning of those words that does not constitute an announcement of an election for the House of Representatives.

Ms Leon : I do not believe there can be an announcement of the date of the election for the House of Representatives when the Prime Minister has not yet advised the Governor-General to dissolve the House of Representatives and issue the writs.

Senator ABETZ: It is very discourteous of the government.

Senator BRANDIS: It is very discourteous, Senator Abetz.

CHAIR: We do not need commentary on the side.

Ms Leon : There has been no formal announcement until that occurs.

Senator BRANDIS: It is now formal announcement. 7.5.2 does not talk about a formal announcement, it just talks about an announcement. Why do you impose that restriction which is not there?

Senator Conroy: She does not agree with you.

Ms Leon : I think that that word that I have used is simply a means of encapsulating the description I gave you immediately prior to the use of that word, which is that the election can be announced on or around the time when the Prime Minister goes to the Governor-General and advises her to dissolve the House of Representatives. I could continue to repeat that formulation but I have for simplicity compressed that into the term 'formal announcement'. That is the basis of my view, which you asked me to explain, as to why there has not yet been an announcement of the date of the House of Representatives election. That announcement cannot occur until on or about the time that the Prime Minister goes to the Governor-General and advises the Governor-General to dissolve the House of Representatives.

Senator BRANDIS: Do you agree with that, Senator Conroy?

Senator Conroy: The officer has formed their view, they have answered your question—

Senator BRANDIS: Do you agree with the view that was just expressed?

Senator Conroy: What I do not agree with is your interpretation.

Senator BRANDIS: No, I am asking whether you agree with what has just been said on behalf of the government by your officer.

Senator Conroy: The Prime Minister has indicated that there will be election on the 14th. You have managed to read that out. As to whether or not that has the same meaning as you are trying to give it, it is entirely your opinion, which I disagree with.

Senator BRANDIS: Ms Leon actually said there has not been an announcement of the election for 14 September. Is that the government's position?

Ms Leon : For the purposes of the guidelines on pre-election consultation, which is what we were discussing.

Senator Conroy: Senator Brandis, you have your opinion and it is not shared.

Senator BRANDIS: Let us hear your opinion. Has an election for 14 September been announced by the government or not?

Senator Conroy: The Prime Minister has indicated—

Ms Leon : Chair, can I clarify that I have not expressed a view for any purpose other than the subject we were discussing, namely the guidelines on pre-election consultation, as to the announcement of election. My comments have all been subject to that being the subject of our discussions.

Senator Conroy: What does Humpty Dumpty think about the calling of the election, Senator Brandis?

CHAIR: I would say, Ms Leon, that your comments have been reiterated on a number of occasions and I think the committee is very clear on what you were referring to. Senator Brandis, do you have a further question before Senator Faulkner has a follow-up question?

Senator BRANDIS: I do not want to yield the floor to Senator Faulkner because I am pursuing a line of inquiry here and I do not want to be interrupted.

CHAIR: I sought clarification as to whether you are finished or not and then Senator Faulkner will follow. You have the call.

Senator BRANDIS: Ms Leon, coming back to paragraph 7.5.2 of the guidelines, it says:

The Guidelines are distinct from the caretaker conventions and commence on a different date. They apply as soon as an election for the House of Representatives is announced or three months before the expiry of the House of Representatives, whichever occurs first.

As I understand your theory, or your view, what that means is that the first of those two alternative conditions, as soon as an election for the House of Representatives is announced, is the date upon which the House is dissolved.

Ms Leon : No, Senator.

Senator BRANDIS: What date is it?

Ms Leon : I think what I said was the announcement that is made on or around the time. Normally—

Senator BRANDIS: The time of what, though? That is the critical question.

Ms Leon : Normally what occurs is that there are three events—

Senator BRANDIS: No, no—

Senator Conroy: Do you think you could not interrupt, just once, to allow the officer to finish?

Ms Leon : There are three events that will occur in reasonably close proximity but not necessarily simultaneously, and they are the Prime Minister going to the Governor-General and advising her to dissolve the House of Representatives, the dissolution of the House of Representatives, and the issue of the writs. Those will usually occur within a few days of each other—not necessarily on the exact same day or at the same time. At about that time, usually shortly after going to the Governor-General, the Prime Minister will announce that she has done so. That is why I expressly used that phrase 'on or about the time that the Prime Minister advises the Governor-General'. It was because it is not humanly possible to be simultaneously advising the Governor-General and announcing that one has done so or is about to do so. It is that announcement to which I was referring as being made on or about the time of the advice to the Governor-General, which is not necessarily the same day as the dissolution of the House of Representatives. That might be the next day, or the day after that. They usually occur in pretty close proximity but they need not occur immediately on the same day.

Senator BRANDIS: Ms Leon, the event that you say that the announcement in paragraph 7.5.2 is referring to is the Prime Minister's announcement, after he or she has visited the Governor-General, that he or she has advised the Governor-General to hold an election on such and such date. Is that correct?

Ms Leon : That is correct.

Senator BRANDIS: Right. That is the event. And the dissolution of the House of Representatives will occur within a day or two that.

Ms Leon : That is right. The way this is worded would mean these guidelines would commence at that point, not maybe two days later when the House of Representatives was dissolved, which is the point at which the caretaker conventions commence.

Senator BRANDIS: Ms Leon, the problem with that theory, if I may respectfully point it out to you, is that it is made as clear as can be—

Senator Conroy: You can express your opinion.

Senator BRANDIS: from paragraph 7.5.2, that these guidelines commence before the caretaker conventions. They say they are distinct from the caretaker conventions and commence on a different date.

Ms Leon : I think that is what I just said, Senator.

Senator BRANDIS: Ms Leon, I think you agreed with me—let me just make sure this is right—

Senator Conroy: I do not know; I am not sure.

Senator BRANDIS: that the guidelines apply as soon as an election for the House of Representatives is announced. We have established when you think that this: in effect, the day the Prime Minister visits the Governor-General and tenders the formal advice. Right?

Ms Leon : Yes, Senator.

Senator BRANDIS: Or three months before the expiry of the House of Representatives, whichever occurs first.

Ms Leon : That is right, Senator.

Senator BRANDIS: The first part of that sentence contemplates a period longer than the three months.

Ms Leon : I suppose the Prime Minister could advise the Governor-General to dissolve the House of Representatives more than three months out from an election. Is that what you mean?

Senator BRANDIS: No, Ms Leon, that is not what I mean. Can I take you, please, to the steps. Clause 28 of the Constitution states:

Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General.

Then, by clause 32:

After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.

Ms Leon : On my analysis, Senator, then the part that must be the longer part of these two periods must be the three months. I thought you had said you had thought the first part could be longer than three months, whereas my analysis was to the effect that the announcement to which these guidelines refer is the announcement by the Prime Minister at or around the time that the Prime Minister goes to the Governor-General.

Senator BRANDIS: Your evidence to the committee is that ordinarily it is a day or two—

Ms Leon : It can be—

Senator BRANDIS: Ordinarily it is, isn't it, a day or two between the visit to the Governor-General and the dissolution of the House of Representatives.

Ms Leon : That is often the case.

Senator BRANDIS: That is usually the case, is it not?

Senator Conroy: The officer said 'often'.

Ms Leon : I said that is often the case. I do not have an account of it.

Senator BRANDIS: What is the longest period between the advice to the Governor-General and the dissolution of the House of Representatives?

Ms Leon : I will have to take that on notice.

Senator BRANDIS: There cannot be more than 10 days between the dissolution of the House of Representatives and the issue of the writs, because section 32 of the Constitution stipulates that. Do you agree?

Ms Leon : Yes.

Senator BRANDIS: Are you familiar with the provisions of the Commonwealth Electoral Act dealing with the holding of elections?

Ms Leon : It is not an act that the Department of the Prime Minister and Cabinet needs to know in detail.

Senator Conroy: We are happy to take on notice your questions to ensure—

Senator BRANDIS: It is not very hard. You can have a look at my copy if you like. I point out to you that under section 156—

Senator Conroy: Would you autograph it for us?

Senator BRANDIS: Grow up, Senator Conroy. Under section 156 of the Commonwealth Electoral Act the minimum period which may elapse between the issue of the writs and what is defined as the date of nomination is 10 days and the maximum period between those two events is 27 days. Under section 157 the minimum days that can elapse between the date of nomination and the date of polling is 23 and the maximum number of days is 31. When we read sections 156 and 157 of the Commonwealth Electoral Act with section 32 of the Constitution we know that the very maximum period that can elapse between the dissolution of the House and polling days is 68 days: the 10 days between the dissolution of the issue of the writs, the 27 days between the issue of the writs and the nomination and the 31 days between the date of nomination and the date of polling. What I am suggesting is that if the first part of the sentence we have been discussing is to have any meaning at all—

Senator Conroy: In your opinion.

Senator BRANDIS: then it cannot be a reference to an event which occurs on or after the day on which the Prime Minister formally advises the Governor-General of a dissolution, because that period must necessarily be less than three months.

Ms Leon : Yes.

Senator BRANDIS: Whereas the provision says the date of the announcement or the three months, whichever occurs earlier.

Ms Leon : If the parliament always went full term then your interpretation would be correct, because three months would always be longer than the period between the announcement that I referred to and the election. But the parliament does not always go full term, and if this provision only applied three months before the expiry of the House of Representatives then were an election to be called more than three months before the expiry of the House of Representatives the guidelines on pre-election consultation would never operate for that election. It is intended, I believe, that should the Prime Minister advise the Governor-General to dissolve the House of Representatives when it is more than three months prior to the expiry of the House of Representatives and then announce that, that would give life to the first part of the provision—that is, the election has been announced—even though it is not yet three months before the expiry of the House of Representatives.

Senator BRANDIS: Are you aware that there has never been an occasion in the entire history of the Commonwealth when the term of House of Representatives has expired by a fluxion of time under section 28 of the Constitution—not once?

Senator Conroy: Thank you for that observation.

Ms Leon : I am not surprised. I was referring to the opposite.

Senator BRANDIS: Might I tell you that there has never been an occasion in the entire history of the Commonwealth when there has been a gap of more than a few days—and you are contemplating a gap of several weeks—between the Prime Minister advising a dissolution of the House of Representatives and the dissolution taking place.

Senator Conroy: You have made an observation. Would you like to ask a question?

Ms Leon : Senator, the expiry of the House of Representatives is not the dissolution of the House of Representatives.

Senator BRANDIS: That is right. That is exactly right.

Ms Leon : So I am referring to a date three months before the House of Representatives would expire by effluxion of time.

Senator BRANDIS: I understood that is what you were saying and that is correct.

Ms Leon : And—

Senator BRANDIS: But that is not this case because this House—

CHAIR: Senator Brandis—

Senator BRANDIS: will not expire by effluxion of time.

CHAIR: Senator Brandis, would you please allow the witness to compete her response.

Ms Leon : Senator, I think you asked me whether the first limb of this paragraph, the election for the House of Representatives being announced, could ever have any work to do given that the period of time between the formal announcing of an election at the time that the Prime Minister goes to the Governor-General and the holding of that election would always be less than three months.

Senator BRANDIS: Correct.

Ms Leon : And I then answered by saying, yes, that part does have work to do because the date, three months before the expiry of the House of Representatives, which is a set date not determined by any act of dissolution by the Governor-General, might occur after a government were to call the election if that were to occur more than three months before the expiry of the House of Representatives. Therefore that trigger, the election being announced earlier than three months before, would then enliven the guidelines and enable the opposition to have briefings from the officials.

Senator BRANDIS: But, Ms Leon, the point is that if we take the statutory maxima—the 10 days under section 32 of the Constitution, the 27 days under section 156 of the Electoral Act and the 31 days between the close of nominations and the polling day under section 157 of the Electoral Act—the longest there can be between the dissolution and the election on any view is 68 days. For your theory to work there would have to be, if we may assume for the sake of this discussion that a month is 30 days and a delay of 22 days or more—

Ms Leon : Senator, I can't understand that.

Senator BRANDIS: between the Prime Minister's advice to the Governor-General—

Senator Conroy: It's best not to try and keep up with these conspiracies.

Senator BRANDIS: and the dissolution of the House of Representatives. That has never occurred. Minister, there has never been such a lapse of time of more than three weeks.

Ms Leon : No, Senator, that is not what I said.

Senator Conroy: Senator Brandis, do you have a question that you can compress into less than five minutes?

Ms Leon : I am not sure if I have been unclear, Senator. My answer had not at all intended to suggest that there would be any extensive delay between the Prime Minister going to the Governor-General and the House being dissolved. So if there is some part of my answer that has given rise to that impression I am happy for you to draw me to it and I will canvass it.

Senator BRANDIS: Whichever is the earlier date between the three months and the announcement. The proposition I am putting to you, Ms Leon, is that—

Senator Conroy: Could you ask your question.

Senator BRANDIS: unless the announcement is a date other than the date upon which the formal advice to the Governor-General is given, that necessarily must be at least three weeks short of three months. Unless the word 'announcement' in section 7.5.2 of these guidelines means something other than the announcement of the formal advice to the Governor-General having been given, then the first part of that sentence has no work to do—but it must have some work to do.

Ms Leon : The caveat at the end of the sentence is not 'whichever is the shorter'. I agree with you that the period between announcement and election could be shorter than three months, but the caveat is 'whichever occurs first'—

Senator BRANDIS: That's right.

Ms Leon : and so if an election were to be called without any unusual delay between the going to the Governor-General and the dissolution—just a normal period about a month et cetera—if the election were to be called more than three months before the expiry of the House of Representatives, that would trigger the guidelines. Whereas if there were only the second part—three months before the expiry of the House of Representatives—

Senator BRANDIS: Then we would know because that would be a fixed date. That is not controversial.

Ms Leon : Then a government that called an election, say, six months prior to the expiry of the House of Representatives would never reach the date where pre-election consultations would be required. I think that is the situation that the first part of this paragraph is intended to catch so that oppositions do get access to officials at least three months before if it is going full term or, if it is not going full term, and therefore the first thing that happens is the announcement, there is still at least then the election period for the opposition to have access to officials.

Senator BRANDIS: I think the problem with your theory is that it contradicts paragraph 1.2 of the caretaker convention.

Senator Conroy: In your opinion.

Senator BRANDIS: 'The caretaker period begins at the time the House of Representatives is dissolved' We may take it from what you have said that you regard the announcement for the purposes of 7.5.2 as the announcement of the Prime Minister's advice to the Governor-General. But, when you take that and you look at 7.5.2, it says the guidelines are 'distinct from the caretaker conventions' and commence at a different time.

Ms Leon : They commence on a different date because they—

Senator BRANDIS: You assume that the meaning of the guidelines—

Senator Conroy: Don't put words into the officer's mouth, Senator Brandis.

Senator BRANDIS: for the purposes of 7.5.2, except in the case of the expiry of the House of Representatives by a fluxion of time. It is the same time as the dissolution.

Senator Conroy: Don't put words into the officer's mouth, Senator Brandis.

Senator BRANDIS: The guidelines themselves say that they are a different—

Ms Leon : I do not assume that.

Senator BRANDIS: Then why do the guidelines say they commence at a different time.

Ms Leon : I think I said earlier in my evidence that the announcement that is referred to here is the announcement by the Prime Minister on or about the time of giving the advice to the Governor-General to dissolve the House of Representatives but that that will not necessarily be the day that the House is dissolved. The House may be dissolved a day or two later and that is not uncommon. So the caretaker—

Senator BRANDIS: Certainly not three weeks later.

Ms Leon : The caretaker conventions would commence on the dissolution of the House, which might be a few days after the Prime Minister announces that he or she has gone to the Governor-General. This part of the guidelines can also commence on quite a different date if it activates the 'three months before the expiry of the House of Representatives' provision—

Senator BRANDIS: Which has never occurred.

Ms Leon : which will occur this year and, therefore—

Senator BRANDIS: No, it won't. The House of Representatives would have expired on 27 September—

Ms Leon : And three months before that is 27 June.

Senator BRANDIS: The election will occur—assuming the announcement of the Prime Minister is adhered to—on 14 September, so this House of Representatives will not expire by a fluxion of time; it will expire by dissolution.

Ms Leon : I think what I said was that this provision of the guidelines will be activated this year if the election has not been called by the end of June, because three months before the expiry of the House of Representatives will be the end of June.

Senator BRANDIS: Yes, but Ms Leon, my point is the first part of the—

Senator Conroy: Your point is wrong.

Senator BRANDIS: The first part of the second sentence prescribes a different commencement period and that commencement period could have no meaning because of the different time lines—

Senator Conroy: That is your opinion.

Senator BRANDIS: and the two provisions of the Commonwealth Electoral Act, unless the announcement means something other than the formal announcement of the advice of the dissolution having been tendered—

Senator Conroy: But that is your opinion.

Senator BRANDIS: which is what you take to be the announcement. That is what I am putting to you.

Ms Leon : I think I have set out the circumstance in which the first part of that sentence would have effect, which is: if an election is called more than three months before the expiry of the House of Representatives then the guidelines on pre-election consultation would then come into effect earlier than the point covered by the second sentence, which is three months before the expiry of the House.

Senator BRANDIS: Ms Leon, that view is only available if the commencement in clause 7.5.2 has the same meaning as paragraph 1.2. Yet 7.5.2 explicitly says the caretaker provisions and the guidelines for consultation with the opposition commence at different times.

Ms Leon : That is correct. The caretaker conventions commence when the House is dissolved, that is not necessarily and often is not the same date as the announcement by the Prime Minister that he or she has given advice to the Governor-General to dissolve the House and it also will not necessarily, in fact not often, be the same date as three months before the expiry of the House of Representatives. So I think that is a correct statement of the difference in date between the guidelines and the caretaker conventions; the caretaker conventions quite clearly commence when the House is dissolved, because that is the point at which the Public Service ceases to have the arrangements in place for accountability through the parliament and so on and, therefore, we enter into a different phase.

Senator BRANDIS: So you say that the paragraph 7.5 guidelines, according to you, commence—except in the event of the expiry of the House by effluxion of time—

Ms Leon : Three months before the expiry.

Senator BRANDIS: Three months before the expiry—no, except in the event of the expiry of the House by an effluxion of time—

Ms Leon : No. They could not—

Senator BRANDIS: in which event the three-month period operates. Only on the day on which the Prime Minister says, 'I have been to the Governor-General and advised a dissolution of the House of Representatives'—

Ms Leon : Either that date or, if the three-month date occurs earlier, then the three-month date, which will occur this year if an election is not called before 27 June.

Senator BRANDIS: Notwithstanding all of the consultations and other activities set out in the six subparagraphs, which explain the operation of the consultation guidelines, contemplate, as the paragraph itself says, 'The Guidelines are intended to ensure a smooth transition if an election results in a change of government' and specify that they commence on a different date from the caretaker conventions.

Ms Leon : Yes. After having regard to the purpose of the guidelines—as I think we discussed earlier—we came to the conclusion that they are intended to, in the immediate lead-up to an election, smooth the business of consultation with the alternative government so that an alternative government, in the instance of a change of government, does not come into office without the benefit of any information about implementation or administration issues.

Senator BRANDIS: In any event, all of that depends upon the view that 'announcement' means formal announcement and, no matter how unambiguously or emphatically an election date is announced in the months prior, paragraph 7.5.2 does not apply to that announcement.

Ms Leon : It does not apply to those indications the Prime Minister gave that she intends to advise the Governor-General—

Senator BRANDIS: But she did not say that. The word 'intend' was never used by her once, Ms Leon.

Ms Leon : But all the Prime Minister can do, or any person can do, when speaking of a future action is speak of their intention to take that future action. The Prime Minister has announced that she will advise the Governor-General; she has not yet done so.

Senator BRANDIS: I suppose it follows from what you say that what the Prime Minister was announcing on 30 January was not the date of the election but the proposed date of the election?

Ms Leon : I think I have said what the Prime Minister announced. She said that she will advise the Governor-General on or around the date she referred to, to dissolve the House of Representatives but she has not yet done so.

Senator BRANDIS: In your view, would it accurately describe what she announced on 30 January—an announcement of the proposed date of the election?

Ms Leon : I would not want to say anything other than what the Prime Minister has said which is that, on or around 12 August, she will advise the Governor-General to dissolve the House of Representatives. I think that is the safest—

Senator Conroy: I think that is one thing we have all agreed on. Do not try and tell the officer how she should answer the question.

Senator BRANDIS: I am interested in your views, Ms Leon.

Ms Leon : I always try not to give opinions in estimates, Senator.

Senator Conroy: You are not entitled to ask for her views and opinions.

Senator BRANDIS: I am entitled to ask questions on opinions on matters other than policy and the way in which an officer, particularly an officer who is the custodian of the conventions which govern the neutrality of the pre-election period, as to the meaning of those conventions. In particular, the critical question of when they commenced to operate is absolutely an appropriate matter for this committee. Ms Leon, let me just finish—

Senator Conroy: In your opinion.

Senator BRANDIS: I want to ask you whether you consider that what the Prime Minister said on 30 January was—

Senator Conroy: What? Can we get back to what estimates is actually about rather than asking an officer—

Senator BRANDIS: the proposed date of the election?

Ms Leon : No, Senator.

Senator BRANDIS: It was not the proposed date of the election?

Ms Leon : No, I do not believe that word was used and I have not used it.

Senator BRANDIS: No, no, it was not used, but I am asking what you make of it?

Ms Leon : So I am not using it.

Senator BRANDIS: You do not think what the Prime Minister said on 30 January, to indicate the proposed date of the election—

Senator Conroy: You do not get to ask—and the officer is not in a position to answer—questions of opinion. If you have a question relating to Senate estimates—the reason we are here, Senator Brandis—would you like to ask one? Ms Leon is not in a position where she is going to debate with you her opinion of the Prime Minister's words. She has answered this question now three times and you simply keep coming back to it. So if you have a question about estimates please ask one—because the officer has answered your question.

Senator BRANDIS: Ms Leon, we know you do not think that what the Prime Minister said on 30 January was to announce the election date. Are you also telling us that you do not think what the Prime Minister said on 30 January was to indicate the proposed election date?

Ms Leon : On 30 January the Prime Minister said that she will advise the Governor-General on or around 12 August to dissolve the House of Representatives. I have slightly condensed the sentence, but that is what she said.

Senator Conroy: We have all agreed that is what the Prime Minister said. That is the only thing we are in unanimous opinion on. Perhaps Humpty Dumpty could inform us further, Senator Brandis.

Senator BRANDIS: Ms Leon, were you one of the officers involved in preparing the advice to the Prime Minister on whether or not the guidelines for the pre-election consultation with the opposition had commenced?

Ms Leon : Yes, Senator.

Senator BRANDIS: Were the views you held at the time you prepared that advice identical to the views that you have expressed to this committee?

Ms Leon : Yes, Senator.

Senator BRANDIS: At the time you prepared that advice, had you read the Prime Minister's speech to the Press Club?

Ms Leon : Yes, Senator.

Senator BRANDIS: Had you read the transcript of the Prime Minister's answers to the journalists?

Ms Leon : I watched the Prime Minister at the Press Club and I listened to her answers and I have read the speech, yes.

Senator BRANDIS: But you have not read the transcript?

Ms Leon : I did not re-read the transcript, but I read all of the transcript. Had I re-read the transcript, my views about the interpretation of the guidelines would not have changed.

Senator BRANDIS: Thank you.

Senator FAULKNER: Very briefly on this matter, Senator Brandis raised earlier the communication between the Leader of the Opposition, Mr Abbott, and the Secretary of the Department of the Prime Minister and Cabinet, Dr Watt. I wanted to ask how the department treated such a communication. Are they normally treated as confidential communications?

Ms Leon : It is quite rare for a member of the parliament to write directly to the secretary of the department. I would not, without taking it on notice, be able to say how rare, but in my experience it does not happen all that often. So I think it is safe to say, or likely to be true, that the reason that this letter was sent directly from the Leader of the Opposition to the secretary of the department rather than to the Prime Minister, for instance, was that it, in the view of the opposition leader, concerned the caretaker conventions or some aspect of them—which, as we discussed earlier, are matters on which the department itself generally gives advice.

The guidelines on pre-election consultation are reprinted in the caretaker conventions. So it would be easy to think that they are there as part of the caretaker conventions—though, as we have discussed today, they are a distinct document. Nevertheless, I think that that is the reason that the letter went direct to the secretary of the department. So it is difficult to say how we ordinarily treat letters from the Leader of the Opposition, because we do not ordinarily receive letters direct to the department from the Leader of the Opposition.

Senator FAULKNER: Would you be able to take on notice when it was received?

Ms Leon : Yes. I may be able to provide that a little later in today's proceedings. I will be able to let you know when that was received.

Senator FAULKNER: I assume that Mr Abbott made this public or provided it to at least a journalist in the Australian. I read an article in the Australian indicating that a spokesman for Dr Watt being asked questions from journalists indicated that Dr Watt had not yet received the letter.

Ms Leon : That is correct, and I do not have that exact date with me. The course of events was that the department was asked by a journalist to respond to the assertions, statements or questions in the letter that had been sent by the Leader of the Opposition to the secretary. At that stage we had not received the letter, so I can find out for you what date that was. The date of the publication of the secretary's response to that was of course the day after we provided the information to the journalist that we had not received it—it was at about 6 pm that we responded to that. We had not at that time received a copy of the letter. We received it, I think, the next day but I would have to check for you the exact date.

Senator FAULKNER: The date and time would be helpful because the article, I believe, appeared online at about midday on—I am not sure when the article appeared.

Ms Leon : I think officers are checking now, Senator: I am advised that the letter arrived on the morning of Friday 8 February.

Senator FAULKNER: Right.

Ms Leon : So it arrived in the department on the Friday morning, which was 8 February.

Senator FAULKNER: But in the newspaper article a spokesperson for Dr Watt made clear that the letter was not in the possession of the secretary, Dr Watt.

Ms Leon : That is correct.

Senator FAULKNER: That is all I can say. I can faithfully report what I read in the newspaper.

Ms Leon : So the department received the inquiry from the journalist referring to the letter from the Leader of the Opposition. At that stage that was the first we knew of the letter. The department contacted the office of the Leader of the Opposition to seek a copy of the letter, but we did not receive that copy until the next morning. In the interregnum, since the journalist had asked for Dr Watt's response to the issues raised in the letter, Dr Watt's response via a spokesperson was that we had not at that time, which was about 6 pm, received a copy of the letter.

Senator FAULKNER: Dr Watt has since formally responded to Mr Abbott's letter?

Ms Leon : He has.

Senator FAULKNER: Is Dr Watt's response in the public arena?

Ms Leon : I think I would like to ensure that the Leader of the Opposition had had the opportunity to read the letter before—

Senator FAULKNER: I am just asking whether—

Senator Conroy: A courtesy that does not seem to have been followed in the other direction.

Ms Leon : At the time I left the department at lunchtime today to come to estimates, the letter was not in the public domain.

Senator FAULKNER: I am not suggesting—

Ms Leon : I do not know if it has since gone into the public domain.

Senator FAULKNER: I do not want you to misunderstand me, Ms Leon: I am not suggesting it necessarily should be and I am pleased that you mention the word courtesies. The only reason I ask this is because it seemed to me to be discourteous for a letter from the Leader of the Opposition to go to the secretary of the Department of the Prime Minister and Cabinet but that be in the hands of media before it was received by the secretary. If the department is ensuring that all courtesies in terms of an answer to that correspondence are met, that is a higher standard and I am pleased to hear it. But that is the reason I was asking the question. I am not asking that that be tabled. I am not sure of what the precedence is here. You might care to comment on it, Senator Conroy, but I am just noting that the original correspondence was in the hands of journalists before it was in the hands of the secretary. If the secretary in response to Mr Abbott as Leader of the Opposition is observing all courtesy, that is good to hear and perhaps setting a high standard.

Senator Conroy: Certainly setting a higher standard than those involved in the original letter. Senator Faulkner, I heartily concur with you.

Senator FAULKNER: He agrees with me.

Senator ABETZ: The minister responsible for PM&C appropriations would be the Prime Minister? When we look at Budget Paper No. 2, and there is the category of Prime Minister and Cabinet, that would be the Prime Minister. This year's will not help you, I am sorry, if that is what you were getting at.

Senator Conroy: Perhaps you could give some more clarity to your question.

Senator ABETZ: It is a very clear question: who is responsible for those allocations set out under Prime Minister and Cabinet in Budget Paper No. 2? I assume the Prime Minister is the responsible minister.

Ms Leon : Yes, by and large that is the case. The reason why I am hesitating is that there are some other portfolio ministers. If you are asking about a particular line in the appropriations, that line may be relevant to a particular portfolio minister, in which case I would have to seek more specific clarification.

Senator ABETZ: All right. I take you to the 2011-12 Budget Measures, page 286, in which we are told—

Ms Leon : Sorry, I have brought the current budget papers, as I usually do, but I have not brought prior years with me.

Senator ABETZ: I accept that—

The government will achieve savings of $5.6 million over four years from 2010-11 from the testing and research components of the Illicit Drugs in Sports ( I DIS) Program. Savings from this measure will be redirected to support other government priorities.

Is that a good look, given what has occurred?

Ms Leon : Now that I know the item you are referring to, that was in the PM&C budget papers in that year because in that year we also had responsibility for arts and sport. They are no longer part of the department—

Senator ABETZ: Yes, we understand that.

Ms Leon : and so the administrative responsibility for those is now in the Department of Regional Affairs, Local Government, Arts and Sport. Questions on that issue would have to be directed there. As to the outcome—

Senator ABETZ: But that is the administration. The decision was made in Prime Minister and Cabinet. Now, another portfolio has to administer this decision to cut $5.6 million from the testing and research component of the Illicit Drugs in Sports (IDIS) Program.

Senator Conroy: You would need to put any questions to the relevant ministers.

Senator ABETZ: Yes, but why was this decision made by Prime Minister and Cabinet in the 2011-12 budget?

Ms Leon : At that time we had responsibility for arts and sport and that part of the department has since been moved to another department and they are the people who will able to answer your question.

Senator ABETZ: Yes, and I am sure that when I go to them they will say, 'We are now administering but it was Prime Minister and Cabinet that made the decision and we now just have to administer it.'.

Senator Conroy: We cannot assist you in guessing what might be in an answer but if you have a question—

Senator ABETZ: Senator Fifield wants to know whether these savings from this measure will be directed to the Australian Crime Commission. Minister, as representing the Prime Minister, responsible for overall government policies—

Senator Conroy: I am happy to take on notice—

Senator ABETZ: when the government makes a deliberate decision to cut over $5.5 million from testing and research components of illicit drugs in sports, given what we have now been preventative—

Senator Conroy: The government has made a range of savings across a range of portfolio areas. I was not the minister responsible for the estimates process at the time so I am happy to take that on notice.

Senator ABETZ: All right. Let us move on, but it does not look good for the government given what has occurred. It is indicative of the savings that the government seeks to make and then things blow up afterwards. Let's go to FOI requests. I understand the Australian made an FOI request for documents by taxpayer funded officials last year in relation to the Australian Workers Union fraud scandal. Can we have it confirmed that such an FOI request was made?

Ms Leon : Do you want me to confirm that an FOI request was made?

Senator ABETZ: Yes, but by News Limited in relation to documents generated by key staff and other taxpayer funded officials in the Prime Minister's office and Department of the Prime Minister and Cabinet.

Ms Leon : It was a request that was handled in the Prime Minister's office not the department.

Senator ABETZ: In that case, we had better get the minister back. He has gone AWOL.

Ms Leon : I think he is just getting a cup of tea.

Senator ABETZ: I don't think he needs any stimulants. Minister, I am asking about the FOI request in relation to the raft of documents generated by key staff and other taxpayer funded officials in relation to the Australian Workers Union fraud scandal. Can we have confirmed that such an FOI request was made?

Senator Conroy: It is my understanding that that is correct.

Senator ABETZ: I understand that the Prime Minister's director of cabinet has determined that no relevant documents sought under FOI would be made available to the Australian. Can you confirm that to be the case?

Senator Conroy: I do not think that that is an accurate description.

Senator ABETZ: What would be an accurate description?

Senator Conroy: To confirm, I understand the decision was made under the FOI Act by a senior member of the Prime Minister's staff. I am advised the applicant, a journalist, sought documents that related to events that happened almost 20 years ago. The decision-maker found the documents sought by the applicant would not be official documents because they did not relate to the affairs of an agency or department. The applicant has been advised of their review rights. According to a recent newspaper, the applicant has sought to exercise review rights by making an application to the information commissioner. These are established processes under the FOI Act for the review of decisions made under the act. Those processes do not include examination, assessment or adjudication by the Senate Finance and Public Administration Committee.

Senator ABETZ: Can you confirm that there are documents in existence generated by key staff and other taxpayer funded officials in the Prime Minister's office relating to the Australian Workers Union fraud scandal?

Senator Conroy: I am afraid that I think your question seeks to put words in my mouth. I am happy to take on notice the question. I thought I read out that the decision-maker found the documents sought by the applicant would not be official documents because they did not relate to the affairs of an agency or department.

Senator ABETZ: So there are documents in existence—

Senator Conroy: I am happy to take on notice to make sure we get you an exact answer to your question.

Senator ABETZ: Were those documents itemised that were denied to the Australian? As I understand it, with FOI documents one has to identify them with a date and subject matter even if you are not going to release them. I understand that that has not even occurred.

Senator Conroy: I am not in a position to agree or disagree with you.

Senator ABETZ: If you could take that on notice—

Senator Conroy: I am happy to take that on notice

Senator ABETZ: and if that assertion is correct, could you explain why that process was not followed to tell us how many documents at least are in existence by taxpayer funded key staff working on this AWU fraud scandal in the Prime Minister's office.

Can I move on to another FOI request which was to PM&C in relation to the hot issues briefs for Senate estimates. Why is it that PM&C have had such difficulty in contacting the decision-maker?

Ms Leon : We have not had any difficulty in contacting the decision maker. The decision maker is an officer of the department.

Senator ABETZ: That is interesting. You are saying that there has been no difficulty in—

Ms Leon : There was a period where the decision maker was leave, I think, during the period. But, if you asking me if I am having difficulty finding the decision maker, no, I am not. I think the most recent advice we gave on this FOI request was when we identified that there was a third party whose information, therefore, required consultation.

Senator ABETZ: We will get to that if we may. So the decision maker is back on board. Why wasn't a new decision maker appointed during that period of the decision maker's absence, because that has led to a situation where the FOI request was put in relatively soon—in fact on 7 December—and we still do not have any documentation, over two months after the event.

Ms Leon : I think the chain of events that was set out makes it clear that the period of time between 7 December and now has not been occupied by the decision maker being on leave. In fact I think we set out that when we wrote to you on 19 December seeking clarification on the scope of the request. You responded on 20 December, revising the request.

Senator ABETZ: That is right.

Ms Leon : Then, on 3 January, we issued a practical refusal notice for the revised request. On 10 January you further revised the scope of the request. So there is not a whole lot of time in there during which there has been any absence of decision-making or action. Our most recent communication with you advised that in the process of looking at the documents covered by your revised request we identified information concerning a third-party entity and therefore had to consult that third party prior to disclosing the document.

Senator ABETZ: Why was it that you only discovered this third-party entity rationale two days after the due date for a decision?

Ms Leon : Usually when we are finding documents what we do first is go through and identify all the documents that are potentially in scope. At that point we do not necessarily read every document we look at closely. We look at all the documents that are in scope first, because that narrows down the number of documents that we will need to read closely. It is only once we have narrowed down the number of documents that are covered by the request that we then go through that subset of documents to see if there is any material that might be exempt, or matters requiring consultation. And it was during that process of identifying which documents could be provided that we identified there was a third-party issue.

Senator ABETZ: So, with all the people in PM&C, it took two days after the due date for a decision to find out that there was a need to consult a third party. Is that correct?

Ms Leon : That does sometimes happen.

Senator ABETZ: So it seems. But are you satisfied with that?

Ms Leon : I hasten to assure you that we do not put all of the staff of PM&C onto the FOI request but the people who did look at it just had not identified the need for third-party consultation until that date.

Senator ABETZ: Why not? Isn't it one of the preliminary things you do? Don't you ascertain who the third parties might be at the start of the consultation period, rather than saying, two days after the expiration, now might be the time to have a look at who the third parties are?

Ms Leon : Yes.

Senator ABETZ: A bit slack isn't it?

Ms Leon : Yes, it is desirable to identify it as early as possible. I think it must have just been missed in the earlier go through and perhaps it is just as the thing progresses to final decision-making that people are very focused on making sure that for every item that is about to be disclosed it is appropriate to do so and that it is not infringing on anyone else's right to be consulted.

Senator ABETZ: So we focus on final decision-making two days after the due date?

Ms Leon : We do make every effort to finish these on time. I think I can reassure you that although in this instance the date had just passed, we are usually on time. In the first half of the current financial year, 88 per cent of our FOI requests were finalised on time. We do make quite an effort to achieve that.

Senator ABETZ: It is the 12 per cent that undoubtedly frustrates a lot of people in the community. One assumes that the 88 per cent are the non-controversial ones. If we can move on in relation to this specific request: can you advise whether there had been any third-party consultation previously, or had it been considered previously and rejected by other officials?

Ms Leon : I do not believe there had been a previous consideration of conducting that third-party consultation and then rejecting it. I will take that on notice to confirm but I am not aware that any such prior process occurred.

Senator ABETZ: I accept that but if you could take that on notice, I would be indebted to you. Finally, is there any reason why the 47 pages could not be made available to the committee today?

Ms Leon : We should let the process under the FOI Act take its proper course—

Senator ABETZ: Why, when you are already overdue and you do not have to, as Senator Ryan quite rightly says, follow that? It would be exceptionally helpful because this exercise was undertaken for the purposes of the Senate estimates. The undue delays, people not being around, not appointing a new officer and finding two days after the due date that third-party consultations had to take place have ensured that those documents are not available to the opposition for today's Senate estimates when the request was, in fact, put in in a very timely fashion and timely manner. What is stopping these documents being made available today?

Ms Leon : The FOI Act does set up the process for us to follow which we are doing. I would not have thought that we can treat the estimates process and the FOI process as governed by the same arrangements. You ask us questions on notice at estimates and we answer those according to the estimates time frames. When a FOI request is submitted, we manage that in accordance with the FOI Act and in compliance with that act—

Senator ABETZ: Well, you have not, have you? You are already over time, are you not?

Ms Leon : Yes, and the consequence—

Senator ABETZ: So you are not abiding by it. Given that you are willing to break it in relation to the timetable, is there anything in the FOI Act which prohibits you from making the documentation available?

Ms Leon : Yes. We are waiting the third-party consultation to be concluded.

Senator ABETZ: In relation to the 47 pages and how many pages does the third-party consultation relate to?

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

Senator ABETZ: Can I suggest to you not all 47 pages? So can I then ask: on what basis were all the pages withheld from the opposition?

Ms Leon : Because we have not yet finalised the decision on the request.

Senator ABETZ: So there is possibly one or two pages in relation—

Ms Leon : We have not finalised the decision on any part of the request. It is not that we have finalised a decision on all the requests other than the matter that is the subject of the third-party consultation. We are conducting the third-party consultation and after the receipt of that we will then finalise a decision on the whole request, but we have not finalised a decision on part of it that we are now ready to release to you.

Senator ABETZ: You are saying that it is not only the third-party consultation that is delaying this request?

Ms Leon : We have not yet finalised the decision on the whole request.

Senator ABETZ: I was under the misapprehension that the only reason that there was this delay was third-party consultations had to take place. Now you are saying that, even if that had taken place, you still would not be ready.

Ms Leon : We are required to advise you when a consultation period under the act is triggered and that is what we have done because that extends the time frame. We have, therefore, advised you of that, but that ought not to be taken as meaning that we have already taken a decision on the rest of the request not subject to the third-party consultation aspect.

Senator ABETZ: But you used that trigger two days after the due date when the information should have been provided. You then waited two days to use another trigger to get further—

Ms Leon : We did not wait two days, Senator; that was when the issue came to the attention of the decision maker and—

Senator ABETZ: Two days after the due date? Very ordinary.

Ms Leon : And therefore we wrote to you accordingly.

CHAIR: Dr de Brouwer would like to add something in response to an earlier question.

Dr de Brouwer : For the benefit of members, around the participation of the Secretary of the Department of the Prime Minister and Cabinet at Senate estimates, I would clarify that there is a longstanding practice, going back over the past seven secretaries—back 30 years, back to Sir Geoffrey Yeend—that the secretary does not attend and in fact delegates to his senior officers. There has been one exception—Mr Moore-Wilton in 2002—but that has been the longstanding practice. I just wanted to clarify that for members.

CHAIR: Thank you very much. Before we go to a break, I would advise that the Office of the Inspector-General of Intelligence and Security will no longer be required tonight. They have been advised. That is a change to the program.

Proceedings suspended from 15:51 to 16:07

CHAIR: Welcome back everyone and Senator Ryan, I think you were seeking some clarification.

Senator RYAN: A couple of questions—I know I have been tripped up on this before, Ms Leon. The Australia in the Asian Century white paper: domestic or international at 1.1.1 or 1.1.2?

Ms Leon : Domestic.

Senator RYAN: and the national security statement: 1.1.2 or 1.1.1?

Ms Leon : National security strategy is under national security at 1.1.2.

Senator RYAN: Thank you.

Senator SINODINOS: Just a couple of questions under the heading of general. It goes back to this issue of the conventions which apply—

Senator Conroy: Oh dear, please.

Senator SINODINOS: In relation to these matters—I will be very quick; it will not be Brandisian in its depth or breadth.

Senator Conroy: Nothing can be Brandisian.

Senator SINODINOS: My first question is to the minister, because you are the minister representing the Prime Minister. Do you regard what the Prime Minister said at the Press Club as being an unconditional commitment that she would advise the Governor-General to call an election for September 14?

Senator Conroy: I think the Prime Minister's words were straightforward.

Senator SINODINOS: So yes or no?

Senator Conroy: No, I think the Prime Minister's words speak for themselves.

Senator SINODINOS: So I take that to mean it is an unconditional commitment.

Senator Conroy: The Prime Minister's words—and we have debated this: I can read them out to you—are eloquent—

Senator SINODINOS: No, it is not about the words; it is about—

Senator Conroy: an and they are straightforward.

Senator SINODINOS: The reason we are having this debate is that the reference in the guidelines is to whichever of the earlier dates—right? All of which was quite clear from its own context so what I am trying to get at—

Senator Conroy: Not by the time Senator Brandis had finished.

Senator SINODINOS: So what I am getting at is: as far as you are concerned, it is an unconditional statement of the Prime Minister.

Senator Conroy: I think the Prime Minister has been very clear. I do not think she could be clearer.

Senator SINODINOS: It is not an intention. It is not informal; it is an unconditional commitment.

Senator Conroy: I am not an eminent, self-appointed SC like some before you earlier in the discussion. To me, the words were fairly straightforward and I think they speak for themselves.

Senator SINODINOS: But do they therefore leave open the option of the Prime Minister advising the Governor-General at an earlier date to call an election?

Senator Conroy: I am not quite sure I followed your question. I think the Prime Minister indicated the date on which she was going to advise. So I am not sure—

Senator SINODINOS: No, I am saying does this leave open the option to the Prime Minister to advise the Governor-General of a date earlier than 14 September for a general election?

Senator Conroy: That is probably a hypothetical question. I think the Prime Minister has been, in her own words, very clear.

Senator SINODINOS: If I can just move on. The Prime Minister has indicated that she had, more or less, made this decision over the summer and then consulted some of her political colleagues. When did the Prime Minister consult the Prime Minister's department about the implications of making such an announcement?

Senator Conroy: I am happy to take that on notice. I am unaware because I was on leave for most of January and I was—

Senator SINODINOS: I am asking about the department's—

Senator Conroy: I am happy to take that on notice.

Senator SINODINOS: Then, potentially on notice, do you take the following question: whether the department was asked to provide advice not only legally—or in terms of standing conventions—but in terms of implications for the economy or for policy generally or for good governance in announcing the date so far ahead of when it is usually done?

Senator Conroy: I am happy to take that on notice. There is nothing I could add, even if I wanted to. I do not think you should undermine Senator Brandis's stellar performance from earlier today—do we have Humpty Dumpty there? That is very naughty of you.

Senator SINODINOS: Believe me, there is no—

Senator Conroy: I will be drawing to his attention that you have been in here—

Senator RYAN: (Indistinct) when he is not here (Indistinct).

Senator Conroy: I think Senator Sinodinos is engaged in a leadership play here. He has always wanted George's job.

CHAIR: Senator Sinodinos, you have the call.

Senator SINODINOS: Thank you, Chair. This question is in relation to a slightly separate but related matter and that is the Prime Minister's speech to the Press Club. Did the department play a role in the drafting of the speech?

Senator Conroy: I would have to take that on notice.

Dr de Brouwer : We provided our comments on the draft.

Senator SINODINOS: Was the draft originated within the Prime Minister's office or was it a departmental draft?

Mr Hazlehurst : Would you mind repeating the question.

Senator SINODINOS: I was asking whether the first draft of the speech was done by the PMO or whether it was done by the department and then went up to the office?

Mr Hazlehurst : On this occasion we provided some input material, if you like—raw material—but did not actually draft the speech.

Senator SINODINOS: This was input around policy matters?

Mr Hazlehurst : Yes.

Senator SINODINOS: Were you given a copy of the penultimate draft or whatever to look at to review?

Mr Hazlehurst : We did some fact checking for the speech, as we would normally do.

Senator SINODINOS: Was it at that stage that you were made aware of the commitment in the speech to 14 September?

Dr de Brouwer : No, that was not part of the draft that we had to work on from the ecopolicy side.

Senator SINODINOS: Or from the PM&C policy side generally?

Dr de Brouwer : No, not from the PM&C policy side.

Ms Leon : We were advised shortly before the delivery of the speech of the inclusion of the announcement of the date.

Senator SINODINOS: A Saturday night special, as it were! Just following on, and this is a separate aspect of the speech: the Prime Minister identified the five pillars policy, which sounded like Mr Abbott's five pillars as well—increasing jobs; prosperity and productivity, including improving regulation. Have any new streams of work commenced in response to this speech or was the Prime Minister referring there to existing streams of work that are already underway? Do you remember how she had five pillars and it included infrastructure?

Dr de Brouwer : The five pillars of productivity.

Senator SINODINOS: Yes.

Mr Hazlehurst : I do not believe there have been new streams of policy work underway as a result of this speech. The five pillars of productivity that Dr de Brouwer referred to has been a framework that the government has been using for some time.

Senator SINODINOS: So the Prime Minister was really restating the commitment to those policy streams without flagging that there would be new policy work?

Mr Hazlehurst : In particular, the reference to those dimensions of productivity.

Senator SINODINOS: That is all I have.

Senator RONALDSON: Just taking up a point of Senator Sinodinos's—

Senator Conroy: Oh no!

Senator RONALDSON: You know the generally accepted meaning of the words 'locked in'?

Senator Conroy: Please! We have had a long conversation about the definition of—

Senator RONALDSON: Was 14 September locked in or not?

Senator Conroy: The Prime Minister's words speak for themselves and are very straightforward.

Senator RONALDSON: Is it locked in or not?

Senator Conroy: The Prime Minister's words speak for themselves.

Senator RONALDSON: You are refusing to acknowledge that it is likely—

Senator Conroy: No, I am not doing anything of the sort.

Senator RONALDSON: It sounds like it to me.

Senator Conroy: The Prime Minister has made her view very clear. In fact, they have been quoted and, for an hour and a half, we have debated the meaning of words. The one meaning that was never debated was the date: 14 September.

Senator RONALDSON: Senator Sinodinos asked you some quite simple, fairly straightforward questions which you did not answer.

Senator Conroy: I am expecting the election to be on 14—

Senator RONALDSON: Is 14 September locked in or not? So if you are not prepared to accept that it is locked in, then we can assume that the Prime Minister might go back on her word in relation to that as well?

Senator Conroy: If you are not careful, I will find out what booth you are in on 14 September and I will hand out next to you.

Senator RONALDSON: I can assure you that you will have to be pretty quick to catch up with me. The reports in News Ltd papers that—

Senator Conroy: You should never take them necessarily as fact. So it is good that you are asking the questions.

Senator RONALDSON: Senator Trish Crossin was summoned to Canberra to be told by the Prime Minister that she was not being re-endorsed. The article said that her the proposed replacement, Nova Peris, was already travelling to Canberra to be announced as her replacement. I assume that, after the captain's pick, the taxpayer did not pick up the cost of the flight for Ms Peris and her family?

Senator Conroy: I have no information on that, but I am happy to take it on notice for you.

Senator RONALDSON: Ms Leon, do you know offhand?

Ms Leon : I do not believe that we did, but I will take that on notice just to confirm for you.

Senator RONALDSON: Thank you. One quick matter: I raised with the Secretary to the Governor-General before lunch about the hospitality extended by the Governor-General to the Prince of Wales and the Duchess of Cornwall at Government House on 10 November. It is my understanding that the Prime Minister was at that lunch. Was she also at afternoon tea with families of the—

Senator Conroy: Can you just slow down, Senator Ronaldson. We are just seeing whether we have any answers for you today for that first question. Did you not get an invite, Senator Ronaldson? Are you are feeling a bit miffed?

Senator RONALDSON: The Leader of the Opposition did and he did the right thing. But I will pursue this further in a second.

Ms Leon : What was the question?

Senator RONALDSON: I take it that the Prime Minister was at Government House with the Prince of Wales and the Duchess of Cornwall on 10 November, the day before Remembrance Day?

Ms Leon : I am just seeing whether I can find that out for you. We are a little hampered because the invitation list for functions at Government House are managed by Government House. I can usually provide you with guest lists for functions that we arrange, but of course I doubt that we arranged the function at Government House.

Senator RONALDSON: I understand that there may also have been an afternoon tea—

Ms Leon : I have just confirmed with my officers. We did not have involvement in the guest list for those two functions, so we will see whether we can find out. But it is not information that we have in the department.

Senator RONALDSON: Do you know whether the Prime Minister was at an afternoon tea with the families of ADF servicemen, as well as the lunch?

Ms Leon : On that day?

Senator RONALDSON: Yes.

Ms Leon : Was it a Government House function?

Senator RONALDSON: They were both—

Ms Leon : If they are Government House functions, then the department is not involved in organising those.

Senator RONALDSON: Was the Prime Minister at both?

Ms Leon : I would have to take that question on notice because she may well have been invited through her office and we would not necessarily know.

Senator RONALDSON: The Prince of Wales and the Duchess of Cornwall were both wearing poppies at Government House, and I asked Mr Brady why the Governor-General was not wearing a poppy.

Senator Conroy: You are not serious!

Senator RONALDSON: I beg your pardon?

Senator Conroy: Keep going, Senator Ronaldson.

Senator RONALDSON: You have just made a disparaging comment about people wearing poppies.

Senator Conroy: No, I am making a disparaging comment about you.

Senator RONALDSON: Senator Conroy, if that is way you want to—

Senator Conroy: About you.

Senator RONALDSON: Well, good on you! The complete and utter disrespect that you are showing is actually confirmed by your behaviour as leader over the last month.

Senator Conroy: Do not put words in my mouth.

Senator RONALDSON: If, indeed, my information is correct that there was an afternoon tea held with families of ADF servicemen killed in Afghanistan—and that is why I was asking for confirmation—then your interjection reaches even lower depths.

Senator Conroy: The lower depth is you and your constant negativity.

Senator RONALDSON: Can I ask a question?

Senator Conroy: You would not know a policy if it hit you in the forehead.

Senator RONALDSON: You obviously realise what you have just done. My best advice is for you to be quiet.

Senator Conroy: What happened to Mr Abbott and 'We're going to be positive'? Did you miss the memo?

CHAIR: Thank you, Minister, and thank you Senator Ronaldson. Senator Ronaldson and Minister, this cross-dialogue is not helpful for Hansard or for the rest of the committee.

Senator RONALDSON: I was purely responding to an interjection from the minister.

CHAIR: Senator Ronaldson, there is no need to respond. Just put your questions and allow the witnesses to answer.

Senator RONALDSON: Just out of interest, Mr Abbott actually did have a poppy on that day.

Senator Conroy: How dare you try to throw this sort of mud?

Senator RONALDSON: What reason would there be for the Prime Minister not to wear a poppy when the Prince and the Duchess were—

Senator Conroy: How dare you!

Senator RONALDSON: I am asking a simple question.

Senator Conroy: You could not be further in the gutter.

Senator RONALDSON: Could we please have an answer? I want an answer.

Senator Conroy: You could not be further in the gutter if you tried. How dare you try and cast aspersions!

Senator RONALDSON: That is a bit rich coming from you. I am asking a question as to why protocol clearly was not followed with the Prime Minister wearing a poppy. If I never got an answer then that is fine.

Senator Conroy: Wave your arms around for the cameras some more!

Senator RONALDSON: Here is the picture of the Prime Minister without the poppy, now that you have asked for it.

CHAIR: The question has been put. Minister?

Senator Conroy: I am advised that it was the day before, and protocol is that it is worn on the day.

Senator RONALDSON: I said that and I asked why the Prime Minister was not—

Senator Conroy: You get down in the gutter.

Senator RONALDSON: wearing one when the Prince of Wales was.

CHAIR: Senator Ronaldson, you have put your question. You have put the same question three or four times. Allow the minister to respond. Minister, you have the call.

Senator Conroy: As I said, my understanding is that it was the day before, and protocol is that you wear it on the day. Senator Ronaldson can wave his arms around and try to pretend that he has scored another massive hit. But you could be the one exception to Tony Abbott's rule if he wins the election, as he thinks he is going to, and be dropped for your stellar contributions.

Senator RONALDSON: Madam Chair, if the Leader of the Government in the Senate thinks that a discussion about wearing poppies is a matter to be dealt with in the way that he is—

CHAIR: Are you taking a point of order? Otherwise, you are making a statement.

Senator RONALDSON: I am taking a point of order.

CHAIR: You are taking a point of order?

Senator RONALDSON: Yes, I am.

CHAIR: What is your point of order, Senator Ronaldson?

Member of the committee interjecting—

Senator RONALDSON: Listen; you'll be chair soon enough. So just wait for a second.

CHAIR: Senator Ronaldson, I would ask you to withdraw those comments.

Senator RONALDSON: Which comments?

CHAIR: You said you had a point of order. I was speaking and I asked you what your point of order was, and I am asking you to give me your point of order.

Senator RONALDSON: Do you think it is appropriate for a minister of the Crown to refer—

CHAIR: That is not a point of order and you know it is not a point of order.

Senator Conroy: If you would like some further information, we have an officer at the table now who I believe can assist you, but everyone can see exactly how transparently pathetic it is.

Senator RONALDSON: Let us hear from them.

Mr Leverett : The two functions you have referred to were of course on Saturday, 10 November.

Senator RONALDSON: That is right. I said that.

Mr Leverett : To my knowledge there were no rules, regulations or whatever about the wearing of a poppy on any day but the Department of Veterans' Affairs website does say that it has become customary to wear one on 11 November. In the UK, they have a different arrangement. Again, to my understanding at least, it is not prescribed but it has become customary there to wear a poppy from All Saints Day until Remembrance Sunday, which is the second Sunday in November. So they wear it by custom for a much longer period. They were following their own practice and we were following our practice.

Senator RONALDSON: I go back to my question: when the Prince of Wales and the Duchess of Cornwall were wearing poppies at a pre-Remembrance Day function—and from what you have just told me, at an afternoon tea—why was it that the Prime Minister, as a mark of respect, given that she was the host of the Prince of Wales and the Duchess of Cornwall, not given a poppy when the Prince of Wales and the Duchess of Cornwall were wearing one.

Senator Conroy: We just always genuflect to the—

Ms Leon : I think the officer gave the answer. The UK conditions are different to the Australian conditions and therefore the Australian Prime Minister was abiding by the Australian practice.

Senator RYAN: I would like Ms Leon to clarify that we can still cover FOIs later on under—

Ms Leon : Under their particular item.

Senator RYAN: I just wanted to double check that.

Ms Leon : I do appreciate it when the committee takes the time to find out where matters are because it certainly helps us to make sure we have the right officers here for them.

CHAIR: Are there any further questions. If not, we will move to Program 1.1.

Senator SINODINOS: I have a couple of questions on the Australia in the Asian Century White Paper. They are about the process of the paper being put together. What was the drafting process? How many drafts did it go through? Is it the case that the draft paper put together under Dr Ken Henry's supervision was subject to further revision and who conducted the revisions and what was that process?

Dr de Brouwer : I think this was covered, to a degree, in an earlier estimates hearing. There was a lot of engagement on the drafting of that material and there was a lot of interaction through the government, but also with the external members and with members of cabinet—all the ministers on that committee and the Prime Minister. The drafting was a continual process that was iterative, going back and forth. It was not a situation where there was an officials' draft and then a ministers' draft. It was really an iterative process that went through multiple processes, through the Cabinet committee, through IDCs and through regular exchange and discussion between officials and also the external parties to the advisory board. That is a very general answer. I do not know if that meets those three questions.

Senator SINODINOS: Part of the reason I asked the question—and I am testing my memory here--is that I thought it was in the public domain that at some stage ONA were brought in to do further work on the paper.

Dr de Brouwer : It was not ONA. Mr Gyngell was brought in as part of the drafting process. Mr Gyngell has a lot of personal subject matter expertise on those issues. He was brought in, quite naturally, within that. There was a particular propriety: he did not do that as the head of ONA. He took leave from his position and came into PM&C for a couple of weeks to work on that draft. In a sense it was a clear respect for his position in ONA.

Senator SINODINOS: Was this done at the direction of the PM's office?

Dr de Brouwer : It was done at the request of the secretary of PM&C.

Senator SINODINOS: To bring Mr Gyngell in?

Dr de Brouwer : Yes, and it was discussed with Dr Henry and everyone involved. Everyone was aware of it but it was done at the request of the secretary.

Senator SINODINOS: Finally, on the Asia paper, the discussion in the chapter of Asia's rise did not seem to characterise all the fundamental policy drivers responsible for Asia's growth—for example, lower comparable tax rates, consistent policy direction, highly flexible workplaces, pro-competitive regulatory settings, strong sense of personal responsibility and work ethic, and the importance of the role of the family unit. There seemed to be a fairly general discussion, as I recall—I do not have it in front of me—about the rise of Asia. Do you think the factors I have mentioned have played a role in the rise of Asia, in particular economies?

Dr de Brouwer : I am here to comment on the facts and the way things were put together rather than provide personal opinion.

Senator SINODINOS: We will leave it there. I found it a bit strange that it did not seem to go into a lot of these other particular factors. It seemed to leave the rise of Asia as partly a demographic achievement and a couple of other factors, but it did not seem to go into detail on economic policy settings.

Dr de Brouwer : I think the sense was to look at some of the primary drivers—maybe not all of the drivers—and condense that and try to have a straightforward message around that, rather than all the factors which can be quite complicated.

Senator SINODINOS: Can I move onto budget surpluses? Is that you?

Dr de Brouwer : Yes.

Senator SINODINOS: You know a lot of economics, so you should be able to answer that too.

Dr de Brouwer : I will ask my colleague, Mr Hazlehurst, to come to the table.

Senator SINODINOS: As you would be aware, the Prime Minister has made some very strong statements in relation to her commitment and that of her government to producing a budget surplus in 2012-13, including as way back as 19 August 2010 when she said in an interview, 'Failure is not an option'. On 13 April 2011, in a speech, 'My commitment to a surplus in 2012-13 was a promise made and it will be honoured.' What role does the department play in advising the Prime Minister on making such unconditional commitments? Did you provide advice on making that sort of unconditional commitment?

Mr Hazlehurst : The department provides advice to the Prime Minister and of course Treasury provides advice to the government through the Treasurer on the state of the budget and forecasts. Ultimately, it is a matter for the government to determine the settings that lead to either a surplus or a deficit in any particular year.

Senator SINODINOS: You would not necessarily take responsibility for the words in which the Prime Minister might seek to frame the commitment?

Dr de Brouwer : Those words are always the words of a Prime Minister. We provide advice on economic and fiscal budget policy but the words are necessarily those—

Senator SINODINOS: But in a circumstance like that where you are sitting in the department and perhaps you hear the Prime Minister say this, do you think: 'Well, that is a pretty unconditional commitment. What if something happens to the economy? What if it slows? What if the automatic stabilisers have to be allowed to work?' Do you then brief the Prime Minister and say, 'You had better be careful here because this commitment could get you into trouble if the projections or forecasts underpinning the government's budget, or whatever, turn out to be too optimistic?'

Dr de Brouwer : We provide advice on budget policy and fiscal policy—the full range of advice. As you know, that is normal consideration of ERC and cabinet.

Senator SINODINOS: In that circumstance, you would have been relying on the fact that the Treasury forecast and projections were suggesting that a surplus going out to 2012-13 was possible or achievable.

Dr de Brouwer : We would take account in our advice of all information that we were aware of.

Senator SINODINOS: Under those circumstances, you would not have been concerned about an unconditional commitment that made no reference to the state of the economy at the time?

Dr de Brouwer : That is asking about a personal view around a policy position of the government.

Senator SINODINOS: But are you not potentially giving advice to try to steer the Prime Minister away from saying something that could potentially be embarrassing down the track?

Senator Feeney: Are you not essentially asking a question of this official that would properly belong in the remit of the political adviser?

Senator SINODINOS: I do not think making a comment on an economic forecast or projection is necessarily giving political advice. It might turn out to be political advice because it might save the Prime Minister's skin from making an unconditional commitment. You are making a professional assessment as to whether it is reasonable to make such an unconditional commitment.

Senator Feeney: You are asking an official whether the Prime Minister said something that in his view was reasonable.

Senator SINODINOS: I am asking: did the department think, in making such an unconditional commitment, the Prime Minister has given a hostage to fortune and therefore think, 'Maybe we should brief the Prime Minister about the advisability of that unconditional commitment'?

Senator Feeney: By your own phraseology, you are asking the official to provide speculation about judgement.

Senator SINODINOS: No. I am asking the officials whether they exercise their professional judgement about whether such an unconditional commitment was a reasonable thing to make in the circumstances.

Senator Feeney: I do not think an official is here to provide commentary on their opinion as to the Prime Minister's utterances.

Senator SINODINOS: Do you think it is appropriate to make such unconditional commitments when it comes to the state of the budget and the economy?

Senator Feeney: It is a matter for the Prime Minister.

Senator SINODINOS: In providing advice to the government?

Dr de Brouwer : In the context of the budget process, we provide full advice. My personal opinion on things is not what I am here to provide information about.

Senator SINODINOS: Is there a culture whereby if you hear or see something the Prime Minister says that you think potentially could get the Prime Minister into trouble, whether it is policy trouble or even political trouble, you would say, 'Prime Minister, we should warn you that such an unconditional commitment is a hostage to fortune down the track'?

Dr de Brouwer : We provide full advice to the Prime Minister.

Senator SINODINOS: Thank you. When did the Department of the Prime Minister and Cabinet come to the view that the surplus in 2012-13 was unlikely to be attained?

Mr Hazlehurst : As at MYEFO, as you know, the government's estimates were that a surplus would be maintained. You would know of course then that, in the course of assessing and then releasing the monthly financial statements, most significantly for October, the government reached the view and the Treasurer announced on 20 December that the circumstances in relation to revenue were such that a surplus was unlikely.

Senator SINODINOS: Did you have any inkling of this when the JEFG group met in the run-up to MYEFO?

Dr de Brouwer : We are really dependent on Treasury's analysis for revenue, budget position and finance. Those questions are better put to those departments.

Senator SINODINOS: You did not feel you are in an independent position to have a view about whether those revenue and expenditure forecasts were likely to be met?

Dr de Brouwer : We are really reliant on Treasury and Finance numbers.

Senator SINODINOS: As indicated in previous estimates, you do do some modelling of your own. You did not do that on this occasion?

Dr de Brouwer : We do economic modelling rather than revenue modelling.

Senator SINODINOS: You are really in Treasury's hands on that.

Dr de Brouwer : Yes.

Senator SINODINOS: There has been a consistent issue over the past four or five years of Treasury being able to accurately forecast tax revenues. What role has PM&C played in, if you like, keeping Treasury honest and accountable about the accuracy of those forecasts and seeking to find ways to improve their processes?

Dr de Brouwer : As always, there are ongoing discussions between officials around the outlook for the economy and where data is travelling, and there are a number of bureaucratic processes, including through JEFG and through budget committees, that would go through that sort of material, as well as just the regular ongoing discussions between officials.

Senator SINODINOS: My recollection is that sometime last year Treasury indicated they would be going back to review their forecasting processes, particularly around revenue. We will ask Treasury, but are you aware of where that process is at?

Dr de Brouwer : That is really a matter for Treasury. It is their forecasting and revenue forecasting process.

Senator SINODINOS: Okay. Let us move beyond MYEFO and into the present. Have you done any independent work modelling potential shocks to the economy over the next year or two years?

Mr Hazlehurst : Yes. We have a model—which I think we have provided information on to the committee previously. In general we use the model to assess what would happen in different circumstances and we do model shocks to the economy.

Senator SINODINOS: Part of the reason for asking this question is that there was a recent article in the Australian and probably in other newspapers as recent as 7 February entitled 'Painful change tipped as China chops fuel imports'. This was a reference to those distinguished Australian economists Ross Garnaut and Bob Gregory warning of 'a very big and painful adjustment' in the next two years resulting from a decline in the Chinese demand for Australian commodities. Are you aware of their analysis?

Dr de Brouwer : Yes, Senator.

Mr Hazlehurst : Yes, we are aware of that analysis.

Senator SINODINOS: Do you agree with their assessment about the potential for 'a big and painful' change over the next couple of years in Australia?

Dr de Brouwer : Treasury is really in the best place to get detailed economic analysis, Senator.

Senator SINODINOS: They are talking about national income decreasing pretty significantly and therefore how are belts tightened and who are best placed to have their belt tightened. But you have not modelled any of that as yet.

Mr Hazlehurst : We have not modelled those specific shocks, no.

Senator SINODINOS: Given the geopolitical situation internationally, do you model things like an oil price shock—say if something happened with Iran?

Mr Hazlehurst : We could, though it would not manifest itself in the model with any degree of specificity in that kind of way?

Senator SINODINOS: Do you have any previous analysis that you could release to the committee? We are not looking for secret or confidential, but stuff that you are aware of that you have done that is more in the public domain.

Dr de Brouwer : On that particular type of shock, Treasury is really the place to ask.

Senator SINODINOS: Also, the US debt ceiling—have you looked at the implications of that depending on what happens in May?

Mr Hazlehurst : We have had broad discussions with Treasury about that, but we certainly have not used our modelling capacity to try to assess the impact.

Senator SINODINOS: The reason that is a concern is that I gather that the debt ceiling will be discussed again in the US Congress around May, which would be very close to the time that the budget is brought down here. So the issue for the budget will be whether it adequately factors into account the economic implications of what happens around the debt ceiling.

Dr de Brouwer : The economic circumstances around the budget are better put to the Treasury department.

Senator SINODINOS: That is fine. I have a couple more on the economic stuff and then on a couple of other areas and then I will be done. I suppose you will tell me that this is for Treasury, but I am interested in the forecast of revenue from the mining tax. Have you done anything independently on that?

Dr de Brouwer : That is with the Treasury department.

Senator SINODINOS: So it is in the hands of the Treasury. It is sounding like Stockholm syndrome.

Dr de Brouwer : Sorry, yes.

Senator SINODINOS: I have one final one. It is a mixture of economic forecasting and planning. Can you indicate whether PM&C has either developed or has considered from a department any specific spending proposals independently of the current budget cycle? In other words, we are not talking about measures that could appear in the May budget. That is spending that potentially the government would have up its sleeve to be announced after the handing down of the May budget. In other words, are you looking at potentially putting together some sort of package should the economy deteriorate by more than the government might factor in to the budget in May?

Dr de Brouwer : The broader economic management really is an issue for Treasury.

Senator SINODINOS: I have one final point on that. Minister, I know this is a hypothetical but just bear with me for a second. If we are in a situation by May where the government has made certain projections about where the economy is going and we then find that the economy is actually deteriorated by more than we thought, is that a situation where you would be advising the government to allow the automatic stabilisers to work?

Dr de Brouwer : I feel like I am speculating on possible scenarios. We would provide, as I said at the start, advice around the economic outlook and the risks around the outlook, as a general proposition.

Senator SINODINOS: And if it was a sufficiently serious shock, would you undertake discretionary fiscal easing?

Dr de Brouwer : That would be a proper part of our giving advice to the government.

Senator SINODINOS: So you are saying there is a range of scenarios and you would provide advice according to the circumstances at the time?

Dr de Brouwer : I think that would go through the Treasury. The Treasury would put that together through the budget process.

Senator SINODINOS: There was an article published in the Australian Financial Review on 6 December, 'Green tape backflip riles big business', which outlined the Commonwealth decision to reverse the prior policy commitment to take action on green tape—this was on one-stop-shops on environmental approvals, I think—to be negotiated on a bilateral basis with various states. This came as a shock because it seemed to be an outcome of the previous meeting of the Business Advisory Forum that there would be such a green tape reduction. First and foremost: did PM&C receive any representations from environmental interest groups on this matter?

Dr Bacon : Which period are you referring to in terms of when representations might have been received?

Senator SINODINOS: In the period up to 6 December.

Dr Bacon : I think there have been a range of views expressed by different non-government environment organisations and groups about the decision at COAG to pursue approvals, bilateral agreements, and many of those views have been published in the media and in other forums.

Dr de Brouwer : There was extensive stakeholder consultation in advance of that process or as part of that process, so those views were incorporated in that as well.

Senator SINODINOS: Did the department brief the Prime Minister or the Prime Minister's office about those representations?

Dr Bacon : I cannot recall a specific briefing coming from the department.

Senator SINODINOS: Could you check whether that was the case? I suppose what I am getting at is: what was the decision-making process that led the Prime Minister on almost the very day of the COAG meeting to say that she would not be proceeding with that promised green-tape reduction measure?

Dr Bacon : I am happy to take on notice to check whether there were specific briefings provided.

Senator SINODINOS: I have a final small set of questions and then I am done. I have questions about developing strategies to deal with urban violence in Western Sydney.

Dr de Brouwer : I will just have to ask my colleagues.

Senator SINODINOS: In my time the only expert we had on Western Sydney was John Howard.

Ms Leon : I think that would come under 1.2.

Senator SINODINOS: There were recent comments made by the Prime Minister around problems associated with violence in Western Sydney. Of course, the minister, Jason Clare, is developing some policy options for the Prime Minister to consider within the limits of federal powers. So what role are you playing in that space? Are you coordinating advice to Jason Clare as the relevant minister or to the Prime Minister or is another department doing that? What role are you playing in the process?

Dr McCarthy : As you have indicated, Minister Clare is taking forward that work and PM&C is one of the agencies which will be consulted in the preparation of that work.

Senator SINODINOS: How long before options are presented for consideration by government?

Dr McCarthy : I don't have a time frame.

Senator SINODINOS: In that context, would one of the areas you would be consulted on be the constitutional limits on powers?

Dr McCarthy : I think that would be a matter for the Attorney-General.

Senator SINODINOS: So your role in being consulted would be what? What in particular would you be looking to contribute to the exercise?

Dr McCarthy : PM&C on any major initiative would normally be consulted by the relevant minister and, in this regard, there are obviously Council of Australian Government implications, for example.

Senator SINODINOS: The resourcing implications of this review will be handled as part of the budget process. Are you looking to make an announcement of policy in the context of budget?

Dr McCarthy : Minister Clare is taking that work forward, so perhaps questions of detail are best directed to the relevant portfolio.

Senator SINODINOS: In the context of stakeholders being consulted, have we had any representations from stakeholders with an interest in stemming urban violence; and are you able to indicate in broad terms who they were?

Dr McCarthy : I will take that on notice, Senator.

Senator SINODINOS: Have you conducted any specific site visits in Western Sydney or any other urban centres where street violence is an issue?

Dr McCarthy : No, Senator.

Senator SINODINOS: From your point of view, this is more in a sense a watching brief plus any Commonwealth-state implications—is that right?

Dr McCarthy : We are one of the agencies with whom Minister Clare would be consulting, particularly as the Prime Minister has commissioned him to do this work.

Senator SINODINOS: So you would not be potentially looking for options which might involve undertaking what are now described as state-like activities or activities undertaken by state governments?

Dr McCarthy : As Minister Clare is taking the work forward, I would not want to speculate.

Senator PAYNE: I understand that we are changing to the Mental Health Commission at five—is that correct?

CHAIR: That is correct.

Senator PAYNE: So I might just ask a few introductory questions and then come back after the break. Just in relation to COAG, is there a date set for the next COAG meeting?

D r de Brouwer : Not yet. The Prime Minister has said April.

Senator PAYNE: Do you know when it is likely to be set?

Dr de Brouwer : My colleague will answer this but I think shortly.

Ms Cross : We would hope that the announcement would be within the next week or two.

Senator PAYNE: Can you tell the committee what the cost was of the last COAG meeting?

Mr Hazlehurst : The total costs, including the costs of the Business Advisory Forum, were $31,159.86.

Senator PAYNE: You might want to take this one on notice in relation to staffing both in the COAG Reform Council and in PM&C for COAG functions: can you indicate whether there has been any net increase or decrease in the staffing levels in both areas for COAG functions during 2012-13; are there any significant staffing level changes expected in this financial year or the next? Could I have a staffing breakdown for both those areas on notice, please.

Ms Cross : I think the CRC will need to respond about CRC resources. In terms of PM&C, there has been no increase in resources. If anything, there has probably been a slight reduction and there is no plan at the moment for any further increase.

Senator PAYNE: In terms of the next meeting, are you able to give the committee any indication of the key areas that the department expects to see on the agenda?

Mr Hazlehurst : The major matters that COAG is considering at the moment and will continue through into this meeting are schools reform; the National Disability Insurance Scheme, competition and deregulation reform connected with the Business Advisory Forum; and probably the wrap-up of the seamless national economy work.

Senator PAYNE: Mr Hazlehurst, occasionally we find the COAG agenda flies out the window when a special issue comes in the other door. Is there any expectation of one-off, large-scale issues which are not actually part of the formal process jumping on to the agenda?

Mr Hazlehurst : Not that I am aware of.

D r de Brouwer : But by definition they are unforeseen.

Senator PAYNE: Unforeseen by lots of people are not always by the Prime Minister and the Department of the Prime Minister and Cabinet I suspect, Mr de Brouwer.

Ms Cross : So the answer is no, Senator, but of course the premiers are invited to nominate topics for the agenda and we cannot anticipate what they might put forward, but we are not aware of anything at the moment.

Senator PAYNE: What sort of lead time do premiers and first ministers usually have to nominate topics for an agenda?

Ms Cross : In my experience, they feel free to nominate topics at any time—

Senator PAYNE: It is an ongoing process—

Ms Cross : and then there is a formal letter seeking any shortly before the COAG meeting.

Senator PAYNE: There have been quite a few reports recently in the media and more broadly about the state of COAG, as it were. Former Victorian Premier Mr Kennett and Greg Craven, constitutional lawyer and deputy chair of the CRC, have been very critical of COAG in some of its operations in recent times. Has this department or, to your knowledge, any other agency been involved in any work looking to review COAG or make changes to it?

Ms Cross : We often provide advice about ways in which we might declutter the COAG agenda.

Senator PAYNE: I have lots of ideas that would be helpful!

Ms Cross : Our focus is always to limit the agenda to issues that are of national significance and require the resolution of premiers and first ministers, but that is ongoing advice rather than a specific review.

Senator PAYNE: That sounds good but I suspect in the last couple of years it has been significantly challenging to refine the COAG agenda to those issues of national significance that you refer to. I go back to the beginning of this government's term after 2007 when it seemed like everything was a national priority and everything was No. 1, and all ended up on the COAG agenda—which has been an issue for some.

You provided an answer to me from the last supplementary estimates which gave me the details of the funding arrangements for the various COAG councils and fora and I wanted to thank you very much for that and for the details contained in it. Looking across it, though, there does not seem to be a standard approach to funding apparent on the face of the information. How, for example, is it decided which will be only funded by the Commonwealth?

Ms Cross : I believe it is largely historical, so not within my time in Commonwealth-state relations. Once you have an agreed arrangement that generally sticks.

Senator PAYNE: When new councils, standing bodies and fora are added to the process—bodies that are added and subtracted along the way and following the Hawke report changes that were made, for example—are the decisions in relation to the funding for those made based on what has been done before or is there a new analysis done on how it should be funded?

Ms Cross : I think following a review like the Hawke review largely the pre-existing arrangements transferred into the new councils. When it is a new council such as the select council, I think it is done case-by-case depending on the particular issue that the council is focusing on, possibly drawing on precedents in similar areas.

Senator PAYNE: One question on a specific detail that you provided in that report: how was the percentage breakdown arrived at for the Legislative and Governance Forum on the Murray-Darling Basin and how did the ACT cop 0.3 per cent?

Ms Cross : I would have to check that for you, I was not party to those discussions. It possibly has something to do with either their respective populations or the amount of water that flows through their jurisdiction.

Senator PAYNE: The part of the river system that flows through their jurisdiction.

Ms Cross : There would be some basis for it.

Senator PAYNE: I was hoping there would be. If you could you take that on notice, Ms Cross?

Ms Cross : Yes.

Ms Leon : Before the break, could I take the opportunity to provide some information that I had indicated I would attempt to get while the committee was still sitting? I was asked whether the department had incurred any expenditure in relation to the flight to Canberra by Ms Peris and her family. I said I did not believe so, but that I would check. I have had that checked and I can confirm there was no expenditure by the department in relation to the travel of Ms Peris and her family.