Chapter 2

Attorney-General's portfolio

2.1        This chapter summarises some of the matters raised during the committee's consideration of the budget estimates for the Attorney-General's portfolio for the 2017–18 financial year.

2.2        The Attorney-General's portfolio appeared over two days, with the Attorney-General's Department (AGD, the department) attending on Wednesday, 24 May 2017 and other agencies of the portfolio attending on Thursday, 25 May 2017.

Statement by the Attorney-General on events in Manchester

2.3        At commencement of the day's hearing, Senator the Hon George Brandis QC, Attorney-General, made a brief opening statement about a bombing that had occurred in Manchester, United Kingdom, on the previous day. He stated that he and the Prime Minister, the Hon Malcolm Turnbull MP, had already spoken with their UK counterparts to offer the Australian people's condolences, as well as to express the determination that the two countries should continue to work together to keep our respective countries safe.[1]

2.4        The Attorney-General noted that there had been a number of recent attacks in Australia, and that there had also been a number of terrorist attacks that had been thwarted by Australian authorities:

Since September 2014, when the national threat level was raised to its current level, there have been four acts of terrorist violence committed in Australia: at Endeavour Hills, in Melbourne; at Martin Place; in Parramatta; and in Minto. Those acts of terrorist violence have caused the deaths of three innocent Australians. They have also led to the deaths of three terrorism perpetrators. In each case, the person who perpetrated the acts of terrorist violence was either a lone actor or a person acting with the encouragement of a small number of people around them; and, in each case, they were acting on the inspiration of Islamist terrorist messaging.

But, more importantly, since September 2014, our authorities have thwarted 12 imminent terrorist attacks on Australian soil, the most recent being just before Christmas, in Melbourne. Each of those thwarted terrorist attacks was potentially more lethal than the four incidents in which a perpetrator did succeed in committing a violent crime. In particular, the event that was thwarted in Melbourne in the days before Christmas had the hallmarks of a very significant mass-casualty terrorist attack and had been prepared with a high level of sophistication. In every one of those 12 cases, our agencies and our police were able to act and to protect the lives of Australians and, potentially, to save the lives of many Australians because they relied on security intelligence, both domestic and, in some cases, shared with us by our Five Eyes partners. Without that intelligence, those terrorist crimes would not have been stopped—nor, of course, would they have been stopped without the skill and bravery of the Australian Federal Police and the state police who interdicted and prevented them.[2]

2.5        The Attorney-General assured the committee that the government was focussed on maintaining the integrity of national security legislation and agencies, while respecting the essential principles of our political system and way of life: 

We have debates in this committee, as we should in a parliamentary democracy, about the way our laws ought to be written. But may I reassure members of this committee—and, through the committee, the Australian public—that we spare no effort to ensure that our laws are kept constantly under review, that we give the agencies and law enforcement the powers that they need to be in the best possible position to protect our people, whilst always respecting the rule of law and the liberal values, rights and freedoms which are integral to our political system and indeed to our way of life.[3]

2.6        Finally, the Attorney-General commented that the threat of terrorism would be an ongoing issue faced by Australia:

I want to thank the committee and I want to thank the Senate for agreeing to pass the eight tranches of national security law, which have been developed and introduced into the parliament since the middle of 2014. We will keep those laws constantly under review. The agencies and law enforcement will keep their techniques and operations constantly under review to ensure, at all times consistent with the rule of law, we do what we can and what we must to prevent an event like that which we saw in Manchester, an the event of unspeakable evil, occurring in Australia. But this is not something that is the work of a day or a week or a month or a year; this is a problem that will be with us for the foreseeable future and governments of all political persuasions must, and I am sure do, regard that task as pre-eminent.[4]

Statement by the Attorney-General on the coronial inquest into the Lindt café siege

2.7        On the afternoon of 24 May 2017, the Attorney-General made a statement on the findings of the report of the New South Wales coronial inquest into the Lindt café siege of September 2014, which was handed down that morning.[5]

2.8        The Attorney-General noted that Australia's counter-terrorism environment has changed significantly since the siege at the Lindt café, noting the significant number of planned attacks that had been averted by intelligence and policing agencies:

The national terrorism threat level remains at 'Probable', reflecting credible intelligence that individuals or groups have developed both an intent and capability to conduct a terrorist attack in Australia. The Lindt Cafe siege is one of four terror-related attacks Australia has experienced since September 2014. But it is important to emphasise that in that time, there have been 12 major counter-terrorism disruptions of attack planning in Australia. Due to the skill and expertise of our intelligence and policing agencies, 12 terrorist attacks on Australian soil have been averted since September 2014 and we should be profoundly grateful for the skill and expertise and courage of the men and women of ASIO, the Australian Federal Police, the state and territory police and others who were able to save an unknown number of Australian lives.[6]

2.9        The Attorney-General stated that the Commonwealth would carefully study the coroner's report and respond to its 45 recommendations appropriately. The Attorney noted that his statement should not be regarded as a Commonwealth response, which would be delivered after due consideration, but as an indication of what steps the Commonwealth had already taken.[7]

2.10      Senator Brandis did note that the Commonwealth had already taken steps to address a number of recommendations made by the NSW coroner's report for consideration by the Attorney-General and other Commonwealth agencies. In particular, he noted the following measures:

• as part of its responsibility for overseeing operational counter-terrorism arrangements between Australian law enforcement and intelligence agencies, the Australia-New Zealand Counter Terrorism Committee (ANZCTC) continually considers and facilitates the effectiveness of information sharing between those agencies. In particular, the ANZCTC has already facilitated the implementation of a classified national computer network to communicate sensitive counter-terrorism information securely and effectively (recommendation 39 of the coroner's report);[8]
• AGD reviewed its correspondence handling procedures in cases where correspondence might raise national security concerns, and implemented those changes in 2015. The consequence of those changes is that such correspondence is now routinely referred to the Australian Security Intelligence Organisation (ASIO) (recommendation 40 of the coroner's report);[9] and that
• the Commonwealth Counter-Terrorism Coordinator with relevant agencies, including ASIO, has already engaged with the Australian Psychological Society and other stakeholders in the mental health sector on this issue. An outcome of that engagement has been an agreement that further work be done to improve information sharing to identify at-risk or radicalised individuals.[10]

2.11      The Attorney-General stated that he would ask the committee whether any further improvements may be required on any of these matters, in light of the coroner's recommendations.[11]

2.12      Moreover, the Attorney-General noted a number of other ways that the department had recently made improvements to its capabilities and relevant legislation, including:

• implementing 11 of the recommendations of the Joint Review into the Lindt café siege undertaken collaboratively by the Commonwealth and the NSW governments;[12]
• actively reviewing Commonwealth counter-terrorism arrangements, including through the Review of Australia's Counter-Terrorism Machinery in 2015, the current L'Estrange inquiry reviewing our national intelligence community, and an ongoing review of Defence support for national counter-terrorism arrangements;[13]
• a program of eight tranches of national security legislation reform to ensure Commonwealth agencies have the necessary powers to respond to the threat of terrorism;[14]
• commitment to a national strategy for crowded places led by ANZCTC, involving all jurisdictions, local governments, owners and operators of open spaces;[15]
• working on measures to ensure harmonisation across jurisdictions, including operational doctrine, training courses, and equipment;[16] and
• ensuring relevant agencies are appropriately funded for the challenges they face in responding to and combatting terrorism.[17]

2.13      The Attorney-General noted that:

Australia faces national security challenges that continue to evolve. Even as ISIL suffers territorial losses in Syria and Iraq, we do not expect the threat to diminish in the foreseeable future. Our response to this has included our work to encourage increased cooperation on counter-terrorism throughout the South-East Asian region, in particular, through fora of the kind that I described this morning. We continue, of course, to engage closely, crucially, with our Five Eyes[18] partners and with other nations as well.[19]

2.14      In closing, Senator Brandis reaffirmed the Commonwealth's commitment to consider the coroner's report closely, to learn lessons from its findings, and to act upon those recommendations in collaboration with the states and territories.[20]

2.15      In response to questions from the committee, the Attorney-General gave further information on this matter regarding:

• improvements to how letters are handled by the AGD and other Commonwealth agencies, in light of Mr Man Haron Monis' letter of October 2014;[21] and
• how the AGD has engaged with other Commonwealth agencies regarding recommendations made by the committee's report into Mr Monis' letter.[22]

Attorney-General's Department

Corporate matters

2.16      The committee asked questions about a number of corporate and staffing issues.  The secretary of AGD, Mr Chris Moraitis PSM, outlined the recent  changes to the staffing profile of the AGD to the committee:

The department is about 1,050 to 1,100 core staff in the traditional department of the Attorney-General's. In the last year or so there has been the addition of the Australian Government Solicitor, which is about 560 to 600 staff, including staff all around the country in Australian Government Solicitor offices. We also have staff that we technically engage for the purpose of royal commissions. We have two royal commissions happening at the moment: the Northern Territory royal commission and the sexual abuse of children royal commission, which is coming to an end later this year...

It can get up to 2,000 if you add in what I call the traditional enterprise AGD, the Australian Government Solicitor, added on since July 2015, and the various staff who are brought on for the purpose of supporting royal commissions, which have a finite period...[23]

2.17      This level of staffing, Mr Moraitis suggested, indicated a reduction in staffing levels over the last two years, coming from both machinery-of-government changes and efficiency dividends:

The answer is that the department has not expanded. It has actually contracted. Just as I alluded to the fact that there was an arts ministry, after a MOG in 2015 those numbers declined quite significantly, by a couple of hundred. There have been ups and downs but, at the moment, historically over a 10-year period we are at staffing levels that are probably 2007 levels. We have been declining, historically. The numbers go up and down in small ways. For example, as I said we get staff for these various royal commissions, but for core staff—for example, we are doing some recruitment in the cyberspace, following the cybersecurity review. So we are ramping up numbers—not in significant ways. There is an on and an off ramp, as you can imagine, but the overall trend has been not to increase. On the contrary it has actually stabilised and somewhat decreased. That is reflecting efficiency dividends and other matters that have been part of our budget reality for several years now.[24]

2.18      The committee also sought information on a range of other corporate matters, including:

• the use of labour hire companies by the department for temporary staffing, including the provision of training and security clearances for these staff;[25]
• the rollout of the Australian Government Guidelines on the Recognition of Sex and Gender regarding Commonwealth departments;[26]
• the Australian Government Solicitor's merging into the AGD, and its representation of the Attorney-General and his chief of staff in Administrative Appeals Tribunal (AAT) and Federal Court proceedings;[27]
• the costs of the royal commissions into the Northern Territory and child sexual abuse;[28] and
• ongoing Freedom of Information (FOI) matters, including the Australian Government Solicitor's involvement in Federal Court case concerning the FOI application for the Attorney-General's diary.[29]

Funding for legal services and the Family Court in the 2017–18 Budget

2.19      The committee was interested in the additional funding of $55.7 million for legal services in the 2017–18 Budget. The Attorney-General stated that this consisted of $39 million additional funding for community legal centres (CLCs) and a $16.7 million boost for Aboriginal and Torres Strait Islander legal services.[30] He commented that:

...in relation to the community legal centres—or CLCs, to use the acronym that people use—the $39 million was directed explicitly to family law and family violence services...

[Additionally] the $16.7 million part of the parcel was additional funding for Aboriginal and Torres Strait Islander legal services. If I may say so, this is a small part of the Commonwealth's expenditure, because the Commonwealth's contribution to community legal services, legal aid commissions and Aboriginal and Torres Strait Islander legal services over the five-year period expiring in the middle of 2020 will be $1.7 billion.[31]

2.20      On the funding model for this increase, the department commented that:

... as a starting point, we allocated to ensure that no state or territory would have a reduction in their funding, as against this financial year, and the remainder of the funding was allocated in accordance with the funding allocation model that is used for allocating funding under the national partnership agreement generally.[32]

2.21      A number of other issues around legal services were also raised by the committee:

• the pilot program of specialist domestic violence units, which will be evaluated next year to inform the government of future policy options;[33]
• funding in the 2017–18 Budget for additional family consultants in the Family Court system;[34] and
• the intention of the government to undertake a review of the Family Law Act 1975 and the family law system more generally, conducted by the Australian Law Reform Commission.[35]

National security

2.22      The Attorney-General informed the committee of the engagement he had undertaken with national security officials during his recent visit to the United States.[36]  Senator Brandis also noted that he would travel to Ottawa in June for the annual meeting of the Five Eyes community.[37]

2.23      The Attorney-General also outlined a number of other ways he has actively engaged regional partners on security issues, including achieving an in-principle agreement with Indonesia to lead a regional multilateral counter-terrorism framework operating at ministerial level. The first meeting of this forum will be in August this year, with the focus being on returning foreign fighters.[38]

2.24      The committee were interested in number of other matters relevant to national security, including:

• the independent review of the Australian intelligence community being undertaken by Mr Michael L'Estrange, including the ways in which the AGD has informed and assisted in the review;[39]
• information and intelligence-sharing between Australian security agencies;[40] and
• funding for countering violent extremism, including work with state and territory governments, and international partners.[41]

Other matters

2.25      The committee had questions relating to several other aspects of the AGD, including:

• the timeframes for the royal commissions into the Northern Territory and sexual abuse of children, as well as the ways in which records would be transferred to the relevant Commonwealth departments and ultimately to the National Archives;[42]
• the intervention of the Attorney-General in previous or ongoing native title cases;[43]
• aspects of international extradition treaties that Australia is party to;[44]
• the department's oversight of policy addressing slavery or slavery-like conditions in Australia, including human trafficking;[45]
• the alignment of Australian law with international criminal law;[46]
• the new national firearms agreement agreed in February 2017 and the progress of jurisdictions in developing legislation; [47] and
• progress of the $40 million Safer Communities Fund program announced in the 2016-17 Budget.[48]

Australian Federal Police

2.26      The committee sought information from the Australian Federal Police (AFP) on a number of issues, including:

• changes to the AFP's funding made in the Budget, including some reductions for overseas activities in Papua New Guinea and the Solomon Islands, and changes to capital works funding;[49]
• staffing levels, including attrition rates;[50]
• prosecution of cases of multiple voting in the 2016 Federal Election;[51]
• funding for programs that are to be evaluated and then considered for extension by the government, including the anti-gangs task force, the keeping illegal guns off our streets program and Registered Organisations Commission;[52]
• referrals to and convictions arising from the trade union corruption taskforce;[53]
• accessing a journalist's call records by an AFP officer, and steps taken by the AFP to identify breaches and audit investigations with due diligence;[54]
• international travel undertaken by sex offenders to South-East Asia and cybersex human trafficking;[55]
• remuneration of AFP staff, including SES officers, and the status of enterprise agreement bargaining;[56]
• law enforcement liaison officers in the Minister's office;[57]
• AFP programs looking at organised crime, and potential connections between organised crime gangs and terrorist recruitment;[58]
• mental illness and bullying in the AFP, including what support services are available for officers;[59] and
• AFP investigation of Pauline Hanson's One Nation party.[60]

Australian Human Rights Commission

2.27      The committee asked the Australian Human Rights Commission (AHRC) about a number of matters, including:

• the 2017-18 Budget measures regarding the drug testing of Newstart recipients, particularly whether drug addiction could be regarded as a disability and, if so, whether there was potential for the new legislation to breach the Disability Discrimination Act 1992.[61]
• the Queensland University of Technology case regarding section 18C of the Racial Discrimination Act 1975;
• changes to procedure of the AHRC resulting from legislative amendments;[62]
• changes to the AHRC's budget and resourcing;[63]
• the disclosure of travel undertaken by AHRC officials, including for particular events;[64] and
• potential candidates for the replacement of the President upon her retirement.[65]

Administrative Appeals Tribunal

2.28      Ms Sian Leathem, Registrar, AAT, made a statement to the committee about recent media coverage concerning the AAT:

In an article dated 9 May 2017, the Herald Sun reported that the tribunal overturned the minister's visa decisions 4,389 times. I wish to make it clear that these matters relate to general migration visa decisions. They represent approximately 39 per cent of all general migration applications finalised in the period from 1 July 2016 to 30 April 2017. The partner, student, visitor and work visa categories make up the highest number of set-aside decisions. Importantly, those figures do not relate to protection matters.

The subject of recent media interest is two types of decisions—firstly, those relating to the cancellation of protection visas and, secondly, those made on character grounds. The cases referred to in the article in the Herald Sun dated 16 May 2017 appear to relate to decisions made by a delegate of the minister to cancel protection visas on the basis of incorrect information said to have been provided to the department. Visas may be cancelled under section 109 of the Migration Act where incorrect information is provided at the time of application. Cancellation is not automatic, and the decision-maker, including the tribunal, must consider whether there was noncompliance by the visa holder and, if so, whether the visa should be cancelled, having regard to the factors set out in the migration regulations and departmental policy.[66]

2.29      Ms Leathem stated that AAT decisions relating to applicants from Iran have not been published since 2011, following a request made by the Department of Foreign Affairs and Trade, but observed this relates to less than 1 per cent of AAT decisions.

2.30      She also stated that another article in the Herald Sun of 22 May 2017 concerned character-related decisions, and outlined the nature of these decisions, as well as the number of such decisions made by the AAT:

Between 1 July 2014 and 30 April 2017, the AAT finalised 156 applications for review of these types of decisions. The tribunal set aside the decision in 35 of those cases.[67]

2.31      Ms Leathem drew the committee's attention to the availability of judicial review for AAT findings, both for applicants and decision-makers:

The only part of the statement [provided to the committee but not read out in full] that I would like to draw the attention of the committee to is that, of course, an applicant or a decision-maker who believes a decision made by the tribunal is wrong in law can appeal that decision to either the Federal Court or the Federal Circuit Court, depending on what type of decision it is. In addition to the availability of judicial review, for decisions relating to visas, the Minister for Immigration and Border Protection has the power to personally substitute a more favourable decision or to set aside certain decisions of the tribunal.[68]

2.32       On questioning by the committee, the AAT provided information on a number of issues, including:

• the procedure for publication of AAT findings, including where decisions are not published or only published following the de-identification of information;[69]
• the amalgamation of several former independent tribunals into the AAT, including migration and refugee review tribunals, as well as the Social Security Appeals Tribunal;[70]
• the AAT's processes and protocols for the publication of findings, including claims made by media articles about the AAT and comments made by the Minister for Immigration and Border Protection, the Hon Peter Dutton MP;[71]
• the structure of the AAT, including how caseloads are administered, new appointments are managed, and the competency framework for members making decisions;[72] and
• updated statistics on findings relating to appeals of Disability Support Pension decisions.[73]

Australian Security and Intelligence Organisation

2.33      The Director-General of ASIO, Mr Duncan Lewis AO DCS CSC, gave an opening statement, advising the committee on:

• assistance offered to the UK intelligence community following the terrorist bombing in Manchester;
• the national terrorism threat advisory level in Australia, which has remained at 'probable' since September 2014 and would not change in response to the events in the UK;
• the role of ASIO in the NSW coronial inquest into the Lindt café siege and organisational improvements in counter-terrorism following the siege; and
• ASIO's core focus areas: countering terrorism and the promotion of communal violence; countering espionage, foreign interference and malicious insiders; countering serious threats to Australia's border integrity; providing protective security advice; and collecting foreign intelligence in Australia on the request of the Ministers for Defence and for Foreign Affairs.[74]

2.34      Mr Lewis also provided a specific update on the counter-terrorism activities of ASIO, giving information on:

• four terror attacks and 12 disrupted terror operations since 2014, including one disruption related to a right-wing extremist;
• Australians fighting in, or seeking to fight in, Syria and Iraq;
• the threat of Islamist extremist ideology; and
• the ongoing task for the Australian intelligence community in countering violent extremism and terrorism.[75]

2.35      The committee asked ASIO about a number of topics, including:

• the role of ASIO in security assessments in immigration matters;[76]
• the legal consequences for Australian citizen foreign fighters, and their families, who wish to return to Australia;[77]
• journalist information warrants and the obligations of ASIO under the Telecommunications (Interception and Access) Act 1979;[78]
• connections between Islamist extremist ideology and refugees, for which Mr Lewis suggested there was no evidence;[79] and
• the relationship between US and Australian intelligence services following the election of President Trump.[80]

Questions on Notice

2.36      During the week of budget estimates 2017–18, a number of responses to questions on notice were received from the Attorney-General's portfolio, including:

• 85 responses for additional estimates 2016–17;
• eight responses for supplementary budget estimates 2016–17; and
• nine responses for additional estimates 2015–16.

2.37      During the hearing of 24 May 2017, committee members voiced concern that late receipt of responses meant senators did not have sufficient time to scrutinise answers before the portfolio appeared for questioning and that matters may be concluded before senators had time to read related responses.[81] The Chair clarified that he would 'allow some leniency in going back where those answers do relate to matters that we have already passed on from this committee' and would not prevent a senator from asking such a question.[82]

2.38      It is the view of the committee that, where possible, answers to questions on notice should be tabled in advance of estimates hearings to provide sufficient time for scrutiny.

2.39      A full index of questions taken on notice during the hearings will be made available on the committee's website and responses will be published as they are received.

Senator the Hon Ian Macdonald
Chair

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