Chapter 1Budget estimates 2022-23
1.1The Senate Legal and Constitutional Affairs Legislation Committee (the committee) examined the proposed 2022–23 expenditure of the Home Affairs portfolio and the Attorney-General’s portfolio at public hearings held on 28October, and 7, 8, and 28 November 2022.
1.2This report does not attempt to analyse the evidence presented to the committee; however, it does outline the key issues considered by the committee during its examination of the 2022–23 expenditure.
Referral of documents
1.3On 25 October 2022, the Senate referred the following documents to committees for examination and report:
Particulars of proposed expenditure in respect of the year ending on 30June2023;
Particulars of certain proposed expenditure in respect of the year ending on 30 June 2023;
Particulars of proposed expenditure in relation to the parliamentary departments in respect of the year ending on 30 June 2023;
Particulars of proposed expenditure in respect of the year ending on 30June2023 [Supply Bill (No. 3) 2022–2023;
Particulars of certain proposed expenditure in respect of the year ending on 30 June 2023 [Supply Bill (No. 4) 2022–2023;
Particulars of proposed expenditure in relation to the parliamentary departments in respect of the year ending on 30 June 2023 [Supply (Parliamentary Departments) Bill (No. 2) 2022–2023].
1.4The Portfolio Budget Statements (PBS) for 2022–23 were tabled in the Senate on the same day.
Portfolio oversight
1.5The committee is responsible for examining the proposed expenditure of the departments and agencies within the Home Affairs and Attorney-General’s portfolios.
Questions on notice
1.6In accordance with Standing Order 26, the committee has drawn the attention of the departments and their agencies to the agreed deadline of Friday,16December 2022 for the receipt of answers to questions taken on notice.
1.7This report has been prepared without reference to any responses to questions on notice.
1.8Tabled documents from the hearings, along with responses to questions on notice and additional information provided to the committee, are tabled in the Senate and uploaded to the committee’s website.
Extension to the reporting date
1.9The Senate determined that the committee would report on its considerations of the 2022–23 proposed Budget expenditure on 29 November 2022.
1.10On Monday, 28 November 2022, the committee requested an extension of time to report to allow inclusion of the additional hearing required for the Budget Estimates 2022–23 round.
Hansard transcripts
1.11A transcription of the committee’s hearings is made via the Committee Hansard, which is published on the estimates webpage.
1.12References in this report are to the proof Committee Hansard. Page numbers may vary between the proofs and the final versions of the Committee Hansard.
Attorney-General’s portfolio
1.13At its hearings on 28 October and 7 and 8 November 2022, the committee examined the outcomes of the Attorney-General’s portfolio. Evidence was provided by Senator the Hon Murray Watt and Senator the Hon Anthony Chisholm on behalf of the Attorney-General. Senior officers of the Attorney-General’s portfolio also gave evidence, including the Secretary of the Attorney-General’s Department, Ms Katherine Jones PSM.
1.14The committee took evidence from the following department and agencies within the Attorney-General’s portfolio:
Inspector-General of Intelligence and Security (IGIS);
Attorney-General’s Department (AGD);
Administrative Appeals Tribunal (AAT);
Australian Law Reform Commission (ALRC);
Federal Circuit and Family Court of Australia;
Independent National Security Legislation Monitor;
Office of the Australian Information Commissioner (OAIC);
Australian Human Rights Commission (AHRC);
Australian Criminal Intelligence Commission (ACIC) and Australian Institute of Criminology;
Commonwealth Director of Public Prosecutions;
Australian Commission for Law Enforcement Integrity (ACLEI);
Australian Federal Police (AFP);
Australian Transaction Reports and Analysis Centre (AUSTRAC);
Office of the Special Investigator (OSI);
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability; and
Royal Commission into Defence and Veteran Suicide.
Key issues
1.15The committee discussed a wide range of topics relating the Attorney-General’s portfolio, including those outlined in the following sections:
Inspector-General of Intelligence and Security
1.16The Inspector-General of Intelligence and Security, the Hon Christopher Jessup KC, made an opening statement.
1.17Key issues discussed included:
human resources within the Office of the Inspector-General of Intelligence and Security;
the inspection, assessment and reporting framework adopted by IGIS in conducting its oversight activities;
role of the IGIS in assessing the public interest immunity claims made by the Attorney-General in relation to the David McBride and Witness K cases;
procedural fairness in relation to security assessments made by the Australian Security Intelligence Organisation for temporary exclusion orders; and
the oversight capability review.
Attorney-General’s Department
1.18The Secretary of the Attorney-General’s Department, Ms Katherine Jones PSM, made an opening statement.
1.19Key issues discussed included:
the implementation of the machinery-of-government changes made to the AGD and the costs associated with them;
the Administrative Arrangements Order dated 14 October 2022 that added cybercrime to the responsibilities of the Attorney-General’s Department;
legal advice allegedly provided by the former Attorney-General, the Honourable Christian Porter MP, to the former Prime Minister, the Honourable Scott Morrison MP, in relation to Mr Morrison being sworn into multiple portfolios;
cost protections in sexual harassment litigation and the proposal for an equal access asymmetrical costs model;
the use of non-disclosure agreements in settlements in relation to harassment, bullying and misconduct;
costs orders and the powers available to the Attorney-General under the Legal Services Directions 2017;
performance reporting measures used by the AGD;
advice provided by the AGD in the development of options for a referendum on the First Nations Voice to Parliament;
funding for community legal centres through the National Legal Assistance Partnership and the indexation of that funding;
the purpose of notices issued under section 78B of the Judiciary Act 1903 and matters relating to the issuance of a notice under that section in relation to Camenzuli v Morrison (2022) NSWCA 51;
the Daniel Deniehy Oration delivered by the Honourable Matt Thistlethwaite MP on 28 October 2022 and matters relating to a possible referendum on Australia becoming a republic;
the abolition of the Native Title Respondents Scheme;
sovereignty and the First Nations Voice to Parliament;
the ban on direct cross-examination in cases involving family violence;
the Attorney-General’s private interests declaration and the ministerial code of conduct;
changes to class actions and litigation funding contained in the draft Corporations Amendment (Litigation Funding) Regulations 2022;
appointments to the Administrative Appeals Tribunal (AAT) in the 2021-22 financial year;
fees associated with filing a review of an AAT decision in the Federal Court;
assumptions made in calculating the funding required for the National Anti-Corruption Commission;
consultations on proposed religious discrimination legislation;
liaison between the AGD, state and territory governments, and the United Nations Subcommittee on the Prevention of Torture ahead of the subcommittee’s visit to jail and detention facilities;
matters relating to modern slavery including progress on establishing the position of anti-slavery commissioner and the existing resources allocated to addressing modern slavery;
the process for proscribing terrorist organisations after machinery-of-government changes to the Attorney-General’s and Home Affairs portfolios;
the electronic surveillance reform process and the Comprehensive Review of the Legal Framework of the National Intelligence Community (the Richardson Review);
the 2016 statutory review of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006;
the public interest immunity claim lodged by the Department of Defence in the Mr David McBride case;
the exercise of the powers available to the Attorney-General under section 71(1) of the Judiciary Act 1903 in relation to the trial of Mr Bernard Collaery;
advice provided by AGD in relation to the repatriation of Australian citizens from Syria;
statistics related to Commonwealth parole determinations;
legal advice provided by AGD regarding the charges that Mr Julian Assange is subject to in the United States;
matters relating to cybersecurity within the AGD, including cybersecurity measures the department has in place, engagement with the Hardening Government IT Initiative, and the departmental cybersecurity budget;
governance processes and procedures AGD has in place in relation to the Commonwealth’s model litigant obligations;
support that AGD provides to its employees living with disability;
challenges to section 36B of the Australian Citizenship Act 2007 following the ruling of the High Court in Alexander v Minister for Home Affairs [HCA] 2022 19; and
discontinuance of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor v Montgomery High Court case.
Administrative Appeals Tribunal
1.20The Registrar of the AAT, Mr Michael Hawkins AM, tabled an opening statement.
1.21Key issues discussed included:
the appointment process for members to the AAT and the potential role of the AAT in the operation of a national anti-corruption commission, particularly in relation to the issuance of warrants in anti-corruption investigations;
bullying, harassment, or discrimination complaints against members of the AAT since 1 July 2016;
performance measures adopted by the AAT in the 2021-22 annual report;
the number of review decisions made by the AAT in 2021-22;
the digital case management system used by the AAT;
the AAT budget for 2022-23;
decision-making in asylum claims; and
claims made by Mr Michael Manetta about his position in the Social Services and Child Support Division.
Australian Law Reform Commission
1.22Key issues discussed included:
matters relating to the ALRC inquiry into Religious Educational Institutions and Anti-Discrimination Laws, including the ALRC input into the development of the terms of reference and the selection of the Hon Justice Stephen Rothman AM as a part-time commissioner for the inquiry; and
capacity of the ALRC to complete a review of the proposed costs provisions included in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 report.
Federal Circuit and Family Court of Australia
1.23Key issues discussed included:
recruitment of additional Lighthouse Project officers and Indigenous liaison officers;
the case clearance rate since the merger of the Federal Circuit Court of Australia and the Family Court of Australia;
the relocation of the Launceston Registry of the Federal Circuit Court;
the modified case management processes used to accommodate Aboriginal and Torres Strait Islander litigants;
court child experts and regulation 7 family consultants; and
the capture of data from the ‘Notice of child abuse, family violence or risk form’.
Independent National Security Legislation Monitor
1.24Key issues discussed included:
progress on a review of the espionage and foreign interference legislation;
matters related to the review into Division 105A of the Criminal Code including dates for public hearings and the publication of supplementary submissions;
the Alan Johns (Witness J) matter; and
the review into the operation and effectiveness of the National Security Information (Criminal and Civil Proceedings) Act 2004.
Office of the Australian Information Commissioner
1.25Key issues discussed included:
reviews that the Office of the Australian Information Commissioner could conduct into TikTok and DiDi;
communication that the OAIC has had with TikTok and the United Kingdom’s Information Commissioner’s Office review of TikTok;
matters relating to the Optus and Medibank data breaches including the timeline of events, the measures that the OAIC is taking to investigate those breaches, and funding for those measures;
the number of notifiable data breaches that have occurred and the number of Australians affected by them since the launch of the Notifiable Data Breaches Scheme in February 2018;
the deletion of private data gathered by the COVIDSafe app;
outstanding freedom of information claims;
the financial costs associated with the Federal Court case launched by MrRexPatrick against the OAIC; and
the potential for data breaches within the real estate industry and the review of the Privacy Act 1988.
Australian Human Rights Commission
1.26Key issues discussed included:
matters related to the Wiyi Yani U Thangani (Women’s Voices) project including the project’s objectives and outcomes, the thematic areas that will be addressed at a summit to be held in Canberra in May 2023 and the financial costs associated with the project;
the National Anti-Racism Strategy;
resources required for the AHRC to implement the additional functions contained in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill;
implementation of new governance frameworks and systems to monitor expenditure within the AHRC;
remuneration of commissioners;
the project to hear and confidentially document the experiences of people subjected to historical workplace sexual harassment;
the fifth national survey for workplace harassment and the sexual harassment survey that forms part of the consent education provided to secondary school students;
the work that the AHRC is doing to support the rights of Indigenous children living in remote communities;
cross-cultural training in workplaces;
matters relating to disability discrimination including reforms to the Disability Discrimination Act 1992 and the number of AHRC staff engaged in handling disability discrimination complaints;
the generation of revenue for the AHRC through the provision of consultancy contracts;
work currently being undertaken or planned by the AHRC in relation to the lesbian, gay, bisexual, transgender, queer, intersex, plus community; and
the possibility of a review into the operation of youth detention centres following the conclusion of the Royal Commission into the Protection and Detention of Children in the Northern Territory.
Australian Criminal Intelligence Commission and Australian Institute of Criminology
1.27Key issues discussed included:
changes to the rates of incarceration, recidivism, and crime, and the possible causes of those changes;
the investigation of a former member of the ACIC by the Australian Commission for Law Enforcement Integrity for alleged links to the ‘Ndrangheta organised crime syndicate;
constitutional challenges that have been brought against the ACIC;
the work the ACIC engages in to monitor and degrade outlaw motorcycle gangs; and
the size of the illicit drug market in Australia.
Commonwealth Director of Public Prosecutions
1.28Key issues discussed included:
the recruitment of a permanent director of public prosecutions; and
the discontinuation of the prosecution of Mr Bernard Collaery under section 71 of the Judiciary Act 1903.
Australian Commission for Law Enforcement Integrity
1.29Key issues discussed included:
the definition of serious or systemic corruption as it pertains to Operation Denmark and the threshold for an instance of serious or systemic corruption under the National Anti-Corruption Commission Bill 2022;
the performance of ACLEI in relation to its corruption prevention activities during the 2021-22 financial year; and
the process that ACLEI uses to access warrants relating to telecommunication information and the use of surveillance devices.
Australian Federal Police
1.30Commissioner Reece Kershaw APM made an opening statement.
1.31Key issues discussed included:
the role of the AFP in the repatriation of family members associated with Islamic State of Iraq and Syria (ISIS) fighters, particularly in relation to the application of control orders and the resources required to monitor individuals who are subject to control orders;
an investigation into the potential disclosure of operational material related to the repatriation of ISIS family members;
current investigations into migration fraud, human trafficking, slavery, and associated offences;
the Agreement between the Government of Australia and the Government of the United States of America on Access to Electronic Data for the Purpose of Countering Serious Crime (the Australia-US CLOUD Act agreement);
engagement between the AFP and the Myanmar Police Force since 1February2021;
vacancies within the Australian Capital Territory police force and the external review of ACT policing that is currently in progress;
mental health and wellbeing initiatives for serving and veteran officers;
the AFP presence around the Russian Embassy in Canberra;
matters relating to foreign interference including the alleged operation of a Chinese police outreach program in Australia and investigations into espionage and foreign interference;
the memorandum of understanding between the AFP and the Chinese National Commission of Supervision;
the investigation into the theft of an AFP firearm;
the number of AFP officers charged with offences in relation to Operation Nambung;
the alleged assault of a Falun Gong practitioner at the Floriade festival in Canberra;
the AFP investigation into the Optus and Medibank cyberattacks;
funding for the AFP in the 2022-23 financial year compared to the 2021-22 financial year;
civil claims made against the AFP;
staffing levels and the annual staff survey report;
the number of people that attended a rally outside Australian Parliament House on 12 February 2022; and
the AFP’s risk assessment of threats made towards parliamentarians, their staff, and their families.
Australian Transaction Reports and Analysis Centre
1.32The Chief Executive Officer of AUSTRAC, Ms Nicole Rose PSM, tabled an opening statement.
1.33Key issues discussed included:
the enforcement investigations and legal action that AUSTRAC is taking against Crown Casino and Star Entertainment Group in relation to alleged breaches of anti-money-laundering and counter-terrorism financing (AML/CTF) laws;
regulatory reform that could address AML/CTF risk and ensure greater compliance with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006;
progress on the implementation of the recommendations made by the Financial Action Task Force in its April 2015 mutual evaluation report of Australia’s measures to combat AML/CTF;
the failure of AUSTRAC to achieve the target associated with performance measure 3.3: Percentage of regulatory work initiated by self-disclosure as opposed to percentage of work proactively identified by AUSTRAC, annually;
the merits of holding individual officers and directors personally accountable for breaches of the AML/CTF regime;
financial value of crime proceeds laundered in Australia; and
the implementation of tranche 2 AML/CTF reforms.
Office of the Special Investigator
1.34The Director-General of the OSI, Mr Chris Moraitis, tabled an opening statement.
1.35Key issues discussed included:
the investigation of 36 alleged incidents of war crimes committed by Australian Defence Force personnel in Afghanistan identified in the Inspector-General of the Australian Defence Force Afghanistan Inquiry (the Brereton Report);
role of the special counsel team within the Australian Government Solicitor’s (AGS) office in providing material to the OSI to assist with its investigations and the resourcing available to AGS in that role;
the number of investigations of other alleged incidents not included in the Brereton Report and the resourcing requirements of the OSI to conduct those investigations; and
public outreach activities that the OSI has engaged in to raise awareness about its investigations.
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
1.36Key issues discussed included:
matters related to the lodgement of submissions to the royal commission including contingencies for late submissions and the demographics of submitters; and
projected work requirements in 2023.
Royal Commission into Defence and Veteran Suicide
1.37Key issues discussed included the interpretation of the Parliamentary Privileges Act 1987 on the operation of the royal commission and recommendation 7 of the interim report, which recommended that Royal Commissions should be made exempt from section 16(3)(c) of that act.
Home Affairs portfolio
1.38At its hearings on 28 October and 28 November 2022, the committee examined the outcomes of the Home Affairs portfolio. Evidence was presented by Senator the Hon Murray Watt, Minister for Emergency Management and Senator the Hon Carol Brown, representing the Minister for Home Affairs, the Minister for Cyber Security and the Minister for Immigration, Citizenship and Multicultural Affairs. Senator the Hon Murray Watt also presented evidence on behalf of the Minister for Home Affairs, the Minister for Cyber Security and the Minister for Immigration, Citizenship and Multicultural Affairs. Senior officers from the Home Affairs portfolio also gave evidence, including the Secretary of the Department of Home Affairs, Mr Michael Pezzullo AO.
1.39The committee took evidence from the following departments and agencies:
National Emergency Management Agency (NEMA);
Department of Home Affairs (including Australian Border Force (ABF)); and
Australian Security Intelligence Organisation (ASIO).
National Emergency Management Agency
1.40The Coordinator General of NEMA, MrBrendanMoonAMASM, made an opening statement.
1.41Key issues discussed included:
arrangements for the transition from the National Recovery and Resilience Agency and Emergency Management Australia to NEMA;
funding for residents in the Northern Rivers region of New South Wales in response to floods;
predicted impacts of the forecast high-risk weather season and the measures NEMA has taken to prepare government agencies and non-government organisations for those impacts;
the contribution of climate change to the high-risk weather season and the capacity of the emergency management sector to respond to multiple disasters simultaneously;
consultation between NEMA, the Disability Employment Service, the National Disability Insurance Scheme and other disability support services in relation to offering emergency and crisis support to disabled people experiencing natural disaster;
the Disability Inclusive Disaster Risk Reduction project;
engagement with the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability;
number of staff employed by NEMA and their location;
tax exemptions for disaster recovery grants;
budget allocation for Disaster Relief Australia;
matters relating to the Disaster Ready Fund including the development of guidelines to support its rollout and engagement with stakeholders;
financial counselling services provided under the regional small business support pilot program;
the activation of the National Coordination Mechanism in response to the Medibank cyber attack and floods in eastern Australia;
process for concluding the operation of the National Coordination Mechanism response to crises and for prioritising responses to competing crises; and
engagement that NEMA has had with the New South Wales Department of Planning and Environment in relation to the expansion of housing subdivisions in the Hawkesbury-Nepean Valley.
Department of Home Affairs
1.42Mr Pezzullo AO and Ms Cheryl Pearce AM CSC, Acting Commissioner of the ABF, made an opening statement.
1.43Key issues discussed included:
changes to the Department of Home Affairs organisational structure;
performance results of the Department of Home Affairs;
machinery-of-government changes to the Home Affairs portfolio;
the process for awarding non-competitive tenders and contracts;
legal advice sought or generated by the Department of Home Affairs following the Love v Commonwealth and Thoms v Commonwealth cases;
release of 18 people from immigration detention as a result of the High Court judgement in the Love v Commonwealth and Thoms v Commonwealth cases;
total resourcing for the Department of Home Affairs as outlined in Portfolio Budget Statements 2022-23 and reconciliation with the March budget;
timing of briefings to the Minister for Home Affairs and the Department of Home Affairs in relation to the cyber attack against Optus;
role of the Security of Critical Infrastructure Act 2018 (SOCI Act) in protecting Australian critical infrastructure and the reporting of cyber incidents under the Telecommunications Act 1997;
budgeted expenses for Program 1.3: Cybersecurity outlined in the Department of Home Affairs PBS;
the purpose and development of the Hardening Government IT Initiative, including the cyber hubs pilot program;
Australian critical infrastructure security laws in comparison to similar laws in other jurisdictions;
powers available to the Minister for Home Affairs to issue regulations for minimum cybersecurity standards for the telecommunications industry under the Telecommunications Act 1997 and the telecommunications sector security reforms;
the implementation of new obligations under the SOCI Act and the process for identifying systems of national significance;
the repatriation of women and children from Syria;
the chronology of the Department of Home Affairs’ and the Minister for Cyber Security’s response to the cyber attack against Medibank;
collection and retention of Australian Passenger Name Record data by the government of India;
the legal thresholds for prescribing organisations engaged in ideologically motivated extremism;
the process for prescribing organisations engaged in ideologically motivated extremism and the role of the Department of Home Affairs in that process following machinery-of-government changes;
advice around the use of surveillance equipment manufactured by Chinese-headquartered companies in Australian government buildings;
national security concerns in relation to TikTok;
transition of the legacy cohort of individuals on Temporary Protection Visas or Safe Haven Enterprise Visas to a permanent protection visa;
the number of people in offshore processing centres in Nauru and Papua New Guinea;
the outcomes of visa applications lodged by Afghan nationals and the number of visas granted to Afghan nationals between 1 July 2021 and 31October2021;
the tender process that the Department of Home Affairs engaged in with Management and Training Corporation Australia for the provision of garrison services on Nauru;
letters that were sent to transitory persons who do not currently have a third-country migration pathway;
arrangements for the provision of funding grants under the Safer Communities program following machinery of government changes;
cessation of citizenship of individuals who joined the Islamic State in Iraq and Syria or were involved in foreign incursions and the case of Alexander v Minister for Home Affairs [HCA] 2022 19;
options available to Iranian and Russian nationals who are currently in Australia on temporary visas to extend the duration of those visas;
review of the actions that the Australian Border Force took after the detention of Indian tourists in Perth in September 2022;
importation of illicit tobacco and vaping products into Australia; and
funding for the immigration detention network.
Australian Security Intelligence Organisation
1.44The Director-General of Security, Mr Mike Burgess, made an opening statement.
1.45Key issues discussed included:
purposes of the additional resources provided to ASIO in the May 2021 budget and the outcomes of that resourcing;
advice provided by ASIO to government departments and agencies in relation to the use of equipment manufactured by Hikvision and Dahua;
the review of espionage and foreign interference legislation;
ASIO’s role in responding to cyber-enabled foreign interference;
the decision-making process involved in the evaluation of the national terrorism threat level;
ASIO’s role in the repatriation of family member of ISIS fighters;
the 2021 threat assessment in relation to ideologically motivated violent extremism;
ASIO’s role in investigating bioterrorism threats; and
countering espionage and foreign interference.
Acknowledgement
1.46The committee thanks the ministers and officers who provided evidence and support for the committee’s hearings.
Senator Nita Green
Chair