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 2011-12 financial year.
Australian Human Rights Commission
2.2
The committee sought the Commission's view of the proposed arrangement
to send asylum seekers in Australia to Malaysia for processing. The President,
the Hon Catherine Branson QC, informed the committee that her concerns on the
proposed arrangements were already on the public record through the issue of a
press release. However, she articulated them at the request of the committee,
advising that as Malaysia is not a signatory to the Refugee Convention, the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or
the International Covenant on Civil and Political Rights, there is a risk in
sending people there if adequate protections are not negotiated. Ms Branson
also noted that Australia's international human rights obligations may also be
breached.[1]
2.3
Another matter that was raised with the Commission was the decision of
the United Nations Human Rights Council in Geneva to replace the condemnation
of religious defamation with a resolution underlining the rights of individuals
to freedom of belief. On notice, the committee sought the Commission's view on
the implications for Australia of that decision.[2]
2.4
The Commission indicated to the committee that it had not considered the
decision and, as such, was reluctant to provide a response on notice. However,
after considerable discussion around the requirements to provide a response,
the Chair advised the President to review the Hansard and the Commission
agreed to provide responses to all questions asked by Senators in this regard.[3]
2.5
Other issues raised during the examination of the Commission, included
the imprisonment of persons with cognitive or intellectual disabilities,
employment of people with disabilities in the public sector, the community
education program as part of the Human Rights Framework, the appointment and
resourcing of the Age Discrimination Commissioner, and the Sex Discrimination
Commissioner's chairing of the review of the treatment of women at the
Australian Defence Force Academy and in Australian Defence Force policies.
Australian Transaction Reports and
Analysis Centre (AUSTRAC)
2.6
Further information on the savings measures of $12.1 million over four
years from operational efficiencies, which were identified in Budget 2011-12,
was sought by members of the committee. It was explained that AUSTRAC is
currently considering a number of options to deliver services under the budget
allocation, including reviewing discretionary expenditure, such as travel, and
the restructure of internal business units.[4]
The committee was assured by AUSTRAC that its current workload would be
maintained despite the reduced budget.[5]
2.7
Industry concerns about AUSTRAC's cost recovery model were canvassed,
and further information was sought on its response to the impact on small
business. AUSTRAC summarised amendments to the model intended to address
certain concerns. These include the exemption of affiliates of remitter
networks to the levy; non-employing entities and microbusinesses will not be
subject to the base component of the levy, and most would not be subject to any
levy; and small gaming venues (entities with an entitlement to 15 or fewer
gaming machines) would be exempt from the levy.[6]
Australian Security Intelligence
Organisation (ASIO)
2.8
The committee asked a range of questions concerning the construction of
ASIO's new building, including an update on its progress. The project is
running within the current budget and is expected to be completed in the middle
of next year. When asked about the $69 million increase from the 2010-11
capital outlays, ASIO advised that this accounted for $19.2 million for the
replacement of existing assets and $41.5 million for equity injection for the
new building.[7]
ASIO also advised the committee that, at the time of the hearings, it had not
been successful in finding a tenant to occupy 4,000 square metres of space in the
building, following withdrawal of the Office of National Assessments as a
prospective tenant.
2.9
Another area of interest to the committee was security on site as a
result of an incident of unauthorised entry. It was advised that this incident led
to a review of security arrangements. The Director-General of ASIO, Mr David
Irvine AO, advised the committee that '[m]y advice is that comprehensive
security procedures have been developed with the managing contractor for the
design and construction phases that are commensurate with the level of risk for
this project'.[8]
2.10
Following the discussion on security checks for IMAs during the earlier
examination of the Department of Immigration and Citizenship, Mr Irvine
provided a helpful summary of the new streamlining processes which were
introduced around late February:
The criteria under which that referral process takes place
have been determined by ASIO. It is an ASIO managed process right across the
board. It is an intelligence led process, it is a risk managed process and it
involves close cooperation with DIAC.
...
...the nature of the security checking is on a case-by-case
basis. It is not determined solely by nationality, by ethnic origins or by
religious or other reasons. The checking that we carry out varies according to
the purpose for which we have been asked to make the check...We make two types
of assessment in respect of IMAs...The first one is to determine suitability
for community based detention and the second one is to determine the
suitability for an individual to reside permanently in Australia. The level of
checking that we undertake is commensurate ultimately with the level of risk we
assess the individual to have.
This referral process has been developed in consultation with
DIAC. What it has done, particularly recently, is enable us to streamline
security checking for what I will call non-complex cases and that is
commensurate with the level of risk that they present. What it does is allow us
to focus our most intensive security investigation effort into the groups or
individuals of most security concern. The result is, I believe, particularly in
recent times, that our security checking has become more thorough and more
effective. In fact, this is evidenced in the number of adverse security assessments,
which have increased as a result of our ability to focus on these complex
cases.
The final point to make is that, prior to this year, it was
government policy that all irregular maritime arrivals be subject to the full
ASIO investigative process. In other words, every one was treated as a complex
investigation. This was proving particularly difficult for everybody, partly
because of the complexity of the investigations themselves and because of the
numbers involved. Therefore, at the end of last year, the government agreed on
two significant decisions. The first was that ASIO would refer to us for
complex security checking, while it would security-check only those people who
had already been accorded refugee status. In the jargon it is known as '1A
met'; in other words, their refugee claims could be accepted. Prior to that, we
had been conducting full investigations on every IMA, even on those people who
were unlikely to be or ultimately not accepted. So we were wasting a lot of
effort on that. That decision has relieved the pressure to some extent. The
second decision was to streamline the process, use greater risk management and
align the process much more closely with the process that we apply to every
other visa applicant.[9]
2.11
The Director-General also provided the committee with a review of the
role of the new multi-agency Counter Terrorism Control Centre (CTCC):
Mr Irvine: The purpose of the control centre is to
ensure that the government's counterterrorism effort both at home and overseas
is properly coordinated between the various agencies who conduct Australia's
counterterrorism effort—between the collectors of intelligence and between the
consumers. It is responsible not simply for assisting in the coordination of
the federal government effort but also for ensuring that the cooperation and
coordination in the flow of intelligence backwards and forwards between federal
and state authorities is optimal. One of the big problems in intelligence,
particularly in relation to counterterrorism, is ensuring that the right piece
of information gets to the right person at the right time; that is part of its
job.
The other key element of the work of the CTCC is to establish
the priorities for our counterterrorism effort, both at a strategic level and
at what I will call a granular level in terms of individual investigations and
so on. It is designed to ensure that the collectors of intelligence are
collecting according to the right priorities, that we are coordinating the
collection and that the collectors can look at those priorities and plan their
resource dispositions accordingly. It also performs a role in evaluating the
quite granular intelligence that comes in to ensure that the collectors are in
fact meeting real, genuine requirements.
Senator LUDLAM: Thanks very much. I think that is
probably the most expansive statement that we have heard on that to date, so I
appreciate that.[10]
2.12
ASIO was also questioned on whether it had investigated the Wikileaks
organisation; and its involvement in the IGIS inquiry into the actions of
relevant Australian agencies in relation to the arrest and detention overseas
of Mr Mamdouh Habib from 2001 to 2005.
Australian Federal Police (AFP)
2.13
The AFP was questioned extensively on a range of issues. Of particular
interest to the committee was the AFP's involvement in recent incidents of
public disorder at the Christmas Island Detention Centre and the Villawood
Detention Centre.
2.14
The committee sought information on a range of issues associated with the
March 2011 riots at the Christmas Island Detention Centre, including when the
AFP first became aware of the high-level risk of the public disorder, the
interactivity between the AFP and the detention centre's contracted provider,
Serco, the circumstances in which the AFP takes control of the detention centre
over Serco, the number of AFP officers involved in returning the detention centre
to order, and the prosecutions arising out of the riots.
2.15
Questioning along similar lines continued with respect to the riots at
the Villawood Detention Centre in April 2011. Senators were advised that at
present no formal memorandum of understanding exists between the AFP and the
NSW Police in response to incidents at Villawood. However, work is currently
underway to formulate one. The committee heard details of the AFP's involvement
in the response to the incident in April and also sought details on the
subsequent investigation and prosecutions arising from the riot.
2.16
Another area of questioning concerned the new Channel Nine reality
television program AFP, based on the work of real AFP officers. Concerns
were raised about the involvement of officers in the program who are undercover
officers. The Commissioner advised that participation was voluntary and that
the officers had a choice to reveal their faces and identities and, if they
chose not to, would have their faces pixelated through the series.[11]
2.17
The Commissioner revealed that staff of the production company were
cleared to the appropriate level.[12]
Mr Andrew Wood, Chief Operating Officer, explained further:
There are a number of layers to the management of the
information for which the security clearance is important to establish a base
level of trustworthiness. But there are of course protocols that continue to
reiterate briefing them in terms of levels of classification of the information
they have access to, and there are also clauses within the contract that enable
us to ensure that they continue to meet their obligations in relation to the
commitments they have made.[13]
2.18
The Commissioner informed the committee of the objectives and benefits
of participating in the program, and addressed the issue of risks associated
with the program:
Understanding what the AFP does and being involved in the
fight against organised crime is what we are all about and we want to publicise
some of that, particularly in relation to the amount and quality of
intelligence provided to law enforcement and how people can assist in
that regard. It will inform and educate the public about how they may be
affected by crime and put preventative measures in place so that people
can see how crimes are committed, because not all of them have the opportunity
to go and sit in a court room.
There has been a research survey done in 2009 to establish a
benchmark of public attitudes and awareness of the AFP, and after the show has
been aired we will do that again and make sure we take account of what that
tells us. The AFP did not receive any financial benefit from this program from
the production company and the television series. However, we were able to
negotiate free community messaging with Channel 9 to the value of $500,000 in
advertising value. So there will be advertising, there will be community
messaging around important issues like missing persons and online child
protection put forward by Channel 9 at no expense to the Commonwealth but
because of the participation of the AFP in this program. And when the contract
was negotiated and spoken about four years ago, almost, those issues were seen
to outweigh the risks, and for any risks that were identified there were
appropriate mitigation strategies put in place with the production company, of
which they have lived up to those strategies.[14]
2.19
The Commissioner was asked about the re-shooting of scenes to include
the new Prime Minister, the Hon Julia Gillard MP, to replace previously shot
scenes with the Hon Kevin Rudd MP. The AFP confirmed that this was done at the
request of the production company after that request was put to Ms Gillard, and
that the cost to the AFP of this exercise was 'very moderate'.[15]
2.20
The AFP was also questioned about its involvement in the examination of
the Wikileaks organisation following the publication of classified material in
2010. It confirmed that it had received a referral from the Attorney-General's
Department on 30 November 2010 in relation to potential criminality,
and on 17 December 2010 advised the department that the evaluation
was complete and that it had not identified any criminal offences.[16]
2.21
The AFP pointed out that this initial referral was not an 'investigation'
but an evaluation of material to assess if there were sufficient grounds to
commence an investigation:
We were evaluating the material before us to see whether
there was sufficient material to commence an investigation. It is a subtle
distinction, but it is actually about looking at the material which is on hand.
One of the primary areas of focus there is to establish whether or not there
would be criminal offences and whether we would have jurisdiction. If those two
issues were established then we would progress to a formal investigations. The
threshold was not met for either of those two things.[17]
2.22
The committee sought further details of this evaluation and the AFP
advised that it did not believe anyone was interviewed in regard to the matter
as 'the thresholds were not met for a criminal offence being identified for
which we had jurisdiction, so therefore there was no requirement to go forward
to interview any persons outside of examining those documents.'[18]
2.23
The AFP further advised that it provided two people to be involved in a
whole-of-government taskforce which commenced on 29 November 2010 to assess the
implications of the release of the cables. Their involvement was for a short
period and then continued on an as-needs basis as further cables were released,
and there is no ongoing involvement at the present time. [19]
2.24
Other areas of interest to the committee during examination of the AFP
included: AFP deployment in Afghanistan; the increase in the number of AFP
sworn officers; AFP involvement in the independent review of the intelligence
community; policing and security at airports; complaints about the behaviour of
AFP officers on the Solomon Islands; and the Alan Kessing case.
Attorney-General's Department
2.25
The Attorney-General's Department was questioned on a range of matters,
including the provision of legal advice in relation to plain packaging for tobacco
products, a legal aid agreement with Norfolk Island, legal aid for people
smugglers, inter-country adoption, reduction in funding for family relationship
centres, funding for safer suburbs initiatives, delays in the provision of
funding to assist flood-affected areas in the Gascoyne region of Western Australia,
and security implications of people changing their names.
Senator Trish Crossin
Chair
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