1.1
The Senate Legal and Constitutional Affairs Legislation Committee (the committee) examined the proposed 2020–21 expenditure of the Home Affairs portfolio and the Attorney-General's portfolio at public hearings held on 19 and 22 October 2020 and at a spill-over hearing on 4 December 2020.
1.2
This 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 proposed 2020–21 expenditure.
Referral of documents
1.3
On 6 October 2020, the Senate referred the following documents to committees for examination and report:
particulars of proposed expenditure in respect of the year ending on 30 June 2021;
particulars of certain proposed expenditure in respect of the year ending on 30 June 2021; and
particulars of proposed expenditure in relation to the parliamentary departments in respect of the year ending on 30 June 2021.
1.4
The Portfolio Budget Statements (PBS) for 2020–21 were tabled in the Senate on the same day.
Portfolio oversight
1.5
The committee is responsible for examining the proposed expenditure of the departments and agencies within the Home Affairs and Attorney-General's portfolios.
1.6
By operation of the Administrative Arrangements Order of 29 May 2019, responsibility for workplace relations, including work health and safety, rehabilitation and compensation functions, moved from the former Department of Jobs and Small Business to the Attorney-General's Department. The Department of Finance issued an instrument on 21 June 2019 which assigned responsibility for the preparation of the 2018-19 annual report and annual performance statements for those functions to the Department of Employment, Skills, Small and Family Business. A motion of the Senate dated 4 July 2019 allocated oversight responsibility for industrial relations to the Senate Standing Committee on Education and Employment. As such, the examination of estimates relating to those functions is considered by that committee.
Questions on notice
1.7
In accordance with Standing Order 26, the committee has drawn the attention of the departments and their agencies to the agreed deadline of Friday, 16 December 2020 for the receipt of answers to questions taken on notice.
1.8
This report has been prepared without reference to any responses to questions on notice.
1.9
Tabled documents from the hearing, 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.
Hansard transcripts
1.10
A transcription of the committee's hearings is made via the Committee Hansard, which is published on the estimates webpage.
1.11
References in this report are to the proof Committee Hansard. Page numbers may vary between the proofs and the final versions of the Committee Hansard.
Home Affairs Portfolio
1.12
At its hearings on 19 and 20 October and 4 December 2020, the committee examined the outcomes of the Home Affairs portfolio. Evidence was provided by Senators the Hon Michaelia Cash and Zed Seselja on behalf of the Minister for Home Affairs, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, and the Minister for Water Resources, Drought, Rural Finance, Natural Disaster and Emergency Management. Senior officers of the Home Affairs portfolio also gave evidence, led by the Secretary of the Department of Home Affairs, Mr Michael Pezzullo AO.
1.13
The committee took evidence from the following departments and agencies.
Australian Criminal Intelligence Commission (ACIC) and the Australian Institute of Criminology (AIC);
Australian Federal Police (AFP);
Australian Security Intelligence Organisation (ASIO);
Australian Transaction Reports and Analysis Centre (AUSTRAC); and
Department of Home Affairs (including Australian Border Force (ABF)).
1.14
The Australian Institute for Disaster Resilience (AIDR), a non-government entity wholly funded by the Department of Home Affairs through Emergency Management Australia, also appeared.
Key issues
1.15
The committee discussed a wide range of topics relating to the Home Affairs portfolio, including:
Department of Home Affairs (including Australian Border Force)
1.16
Mr Pezzullo and Mr Michael Outram PSM, Commissioner of the ABF made opening statements.
1.17
Key issues discussed included:
the NSW Independent Commission Against Corruption (ICAC) investigation into former NSW Member of Parliament, Mr Daryl Maguire, and related allegations of cash-for-visas;
the decision of the Federal Court in Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 1354;
the Future Maritime Surveillance Capability Project, including the Cobham Aviation Services;
upgrades to the visa processing system, including the cancellation of the global digital platform program and the proposed implementation of a Digital Passenger Declaration and the simple visa product;
the arrangement with the United States of America for resettlement of refugees currently on Manus Island and Nauru, and the offer from the New Zealand Government;
the return of Australians currently overseas, exemptions granted to temporary permit visa holders to enter Australia and the reopening of the Howard Springs quarantine facility;
significant investor visas;
the use of private security contractors during Victoria’s hotel quarantine;
the New Zealand travel bubble;
the government procurement contract with Paladin Group for services in the Manus Island Regional Processing Centre;
final departure bridging visa holders and Status Resolution Support Services payments;
briefings to ministers about the forthcoming disaster season;
spending from the Emergency Response Fund and the National Disaster Risk Reduction Framework;
multiculturalism in Australia, and comments by Senator the Hon Eric Abetz during the Senate Foreign Affairs, Defence and Trade References Committee’s hearing on 14 October 2020;
processing times and forthcoming changes to requirements for partner visa applications;
the impact of COVID-19 regulations on visa issuance and travel exemption processes;
travel exemption granted to Mr Tony Abbott AC and the scope of 'government business' under the Australian Border Forces' guidelines for the granting of travel exemptions;
the intelligence functions of the Department of Home Affairs, ACIC and AUSTRAC, and oversight of these functions;
modern slavery in respect of the Uighur in China;
the establishment of the Office of the Special Investigator to examine alleged war crimes by the Australian Special Operations Task Group in Afghanistan; and
Australian Institute for Disaster Resilience
1.18
Mr Stuart Ellis AM, Chief Executive Officer of the Australasian Fire and emergency Service Authorities Council and Ms Amanda Leck, Executive Director of the Australian Institute for Disaster Resilience (AIDR) made opening statements.
1.19
Key issues discussed included:
funding, staffing and the contract with the Department of Home Affairs;
AIDR's strategy and remit;
changes to AIDR's operations since October 2019;
the Emergency Response Fund; and
disaster preparedness for conflict.
Australian Federal Police
1.20
Commissioner Reece Kershaw APM made opening statements.
1.21
Key issues discussed included:
the AFP's investigation into the Leppington Triangle land acquisition by the Department of Infrastructure;
prosecution of arson-related offences;
the Department of Home Affairs and Australian Border Force investigation into corruption allegations against the former MP Mr Daryl Maguire and related possible cash-for-visas investigations arising out of an NSW Independent Commission Against Corruption investigation;
implementation of recommendations from the Review into the AFP’s Response to and Management of Sensitive Investigations by Mr John Lawler AM APM;
investigation into possible foreign interference relating to a NSW parliamentarian and the Foreign Interference Transparency Scheme;
notification of the AFP as to the use of private contractors in Victoria's hotel quarantine;
countering violent extremism;
report of the NSW Legislative Council Privileges Committee, Execution of search warrants by the Australian Federal Police, Report 80, October 2020, regarding the presence of media at the execution of a search warrant at the property of a NSW parliamentarian;
the Counter Foreign Interference Strategy and related inter-agency taskforces;
the arrest of a convicted terrorist for breach of control orders and the effectiveness of de-radicalisation;
different types of extremism, and the challenge posed by those to law enforcement; and
the AFP's contract with Black Swan.
Australian Security Intelligence Organisation
1.22
Mr Mike Burgess, Director-General made an opening statement.
1.23
Key issues discussed included:
espionage and foreign interference involving parliamentarians;
ASIO representation on the Counter Foreign Interference Taskforce and other related taskforces;
attempts by a foreign intelligence service to infiltrate Australian intelligence agencies;
partisanship and public confidence in ASIO;
media reporting on Channel 9 on 14 October 2020 regarding a China Daily video that quoted a speech given by Senator the Hon Kim Carr;
report of the NSW Legislative Council Privileges Committee, Execution of search warrants by the Australian Federal Police, Report 80, October 2020, regarding the presence of media at the execution of a search warrant at the property of a NSW parliamentarian; and
the proposed power to detain people from 14 years of age under the Australian Security Intelligence Organisation Amendment Bill 2020.
Australian Criminal Intelligence Commission and the Australian Institute of Criminology
1.24
Mr Michael Phelan APM, Chief Executive Officer provided an opening statement.
1.25
Key issues discussed included:
criminal intelligence assessments for security purposes, and the proposed role of the ACIC in relation to aviation security identification cards (ASIC) and maritime safety identification cards;
findings of the ACIC's report, Serious Financial Crime in Australia 2017 in relation to professional facilitators including lawyers, accountants and real estate agents;
advice to National Cabinet about firearms policy during COVID-19;
the Australian Firearms Information Network; and
the five-yearly review of the provisions of the Australian Crime Commission Act 2002 (Cth).
Australian Transaction Reports and Analysis Centre
1.26
Ms Nicole Rose PSM, Chief Executive Office, provided an opening statement.
1.27
Key issues discussed included:
safeguards against and prevalence of money laundering in junket operations, including in the context of the NSW Independent Liquor and Gaming Authority's Inquiry under section 142 of the Casino Control Act 1992 (NSW) regarding Crown Resort's casino licence for a proposed venue at Barangaroo;
the referral of Westpac's breaches of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) to law enforcement, and internal evaluation of AUSTRAC's processes following revelations about the extent of non-compliance by Westpac;
Operation Atlantis, undertaken by the ATO-led Serious Financial Crime Taskforce into money laundering and tax evasion schemes through Euro Bank;
usage and reporting obligations of professional facilitators in money laundering activities;
the alleged transfer of Vatican funds to Australia in relation to the investigation and prosecution of Cardinal George Pell on child sex abuse charges;
proposed amendments to chapter 46 of the Anti-Money Laundering and Counter-Terrorism Financing Rules;
enforcement tools with respect to gambling operators and the case of Mr Gavin Fineff; and
Attorney-General's Portfolio
1.28
At its hearings on 21 and 22 October and 4 December 2020, the committee examined the outcomes of the Attorney-General's portfolio. Evidence was provided by Senators the Hon Zed Seselja, Jonathon Duniam and Michaelia Cash representing the Attorney-General and senior officers of the Attorney-General's portfolio led by the Secretary of the Attorney-General's Department, Mr Chris Moraitis PSM.
1.29
The committee took evidence from the following department and agencies within the Attorney-General's portfolio:
Administrative Appeals Tribunal (AAT);
Australian Commission for Law Enforcement Integrity (ACLEI);
Australian Financial Security Authority (AFSA);
Australian Human Rights Commission (AHRC);
Attorney-General's Department (AGD);
High Court of Australia (HCA);
Inspector-General of Intelligence and Security (IGIS);
National Archives of Australia (NAA);
Office of the Australian Information Commissioner (OAIC);
Office of the Director of Public Prosecutions (ODPP);
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission); and
Royal Commission into Aged Care Quality and Safety.
Key issues
1.30
The committee discussed a wide range of topics relating to the Attorney General's portfolio, including those outlined below.
Attorney-General's Department
1.31
Key issues discussed included:
the establishment of a Commonwealth Integrity Commission, the timeline for the exposure draft, consultation processes, additional funding for ACLEI, alternative models and features of the proposed commission;
the Commonwealth's costs for intervening in actions by Mr Clive Palmer in the High Court concerning border closures;
funding for Aboriginal and Torres Strait Islander Legal Services (ATSILS);
funding for women's legal services, legal assistance to family violence victims and additional funding under the National Legal Assistance Partnership during COVID-19;
amendments to the Royal Commissions Act 1902 (Cth) to address privacy concerns;
the family law information-sharing initiative under the fourth Action Plan of the National Plan to Reduce Violence against Women and their children;
funding for the Federal Circuit Court of Australia;
recommendations of and responses to the Australia Law Reform Commission's report on the family law system;
proposed merger of the Federal Circuit Court of Australia and the Family Court of Australia;
application of the Freedom of Information Act 1902 (Cth) (FOI Act) to documents deemed cabinet-in-confidence;
allegations of sexual harassment against former High Court judge the Hon Dyson Heydon AC;
privacy concerns with respect to the COVIDSafe app and funding for the Information Commissioner;
the Foreign Influence Transparency Scheme Public Register, including registration of former Prime Ministers, requirements for and purposes of registration, and application to National Cabinet;
prosecution of Witness K and Mr Bernard Collaery;
progression of the consultation process for the proposed religious discrimination bills;
extradition of Malka Leifer from Israel;
the legal status of the National Cabinet;
the National Redress Scheme, and Fairbridge Restored in administration; and
the decision of the Federal Court of Australia in Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 1354.
Attorney-General’s Department and the Royal Commission into Aged Care Quality and Safety
1.32
Key issues discussed included the Twitter usage of Ms Kate Hannon, Director of Communications, Royal Commission into Aged Care Quality and Safety.
National Archives of Australia
1.33
Mr David Fricker, Director-General, gave an opening statement.
1.34
Key issues discussed included:
the release of ‘The Palace Papers’;
recommendations and findings of the Tune Review and the subsequent impact on workload and staffing levels;
records administration requirements for documents related to the National Cabinet;
anticipated loss of large sections of magnetic tapes archives; and
provision of the official diaries of former Prime Ministers Rudd, Gillard, Abbott and Turnbull to the NAA.
Australian Financial Security Authority
1.35
Key issues discussed included:
insolvency reform, and the application of Chapter 11 insolvency laws to small incorporated entities; and
the Bankruptcy Amendment (Enterprise Incentives) Bill 2017 (lapsed).
High Court of Australia
1.36
Key issues discussed included the High Court’s response to findings of Dr Vivienne Thom AM regarding allegations against the Hon Dyson Heydon AC.
Australian Human Rights Commission
1.37
Emeritus Professor Rosalind Croucher AM, President, gave an opening statement.
1.38
Key issues discussed included:
observations of, and measures to combat, racism;
rights of the child regarding international travel restrictions;
the Wiyi Yani U Thangani (Women’s Voices) Project;
ageism and complaints to the Aged Care Quality and Safety Commission in relation to standards in residential aged care;
human rights concerns regarding the Victorian government’s response to COVID-19;
comments by Senator the Hon Eric Abetz in a public hearing of the Senate Foreign Affairs, Defence and Trade Committee on 14 October 2020;
white supremacism, far-right wing and left wing extremism;
the AHRC’s Guidelines for the inclusion of transgender and gender diverse people in sport, 2019;
incorporation of rights under the United Nations Declaration on the Rights of Indigenous Peoples into domestic law and Aboriginal deaths in custody; and
the AHRC’s Respect@Work: Sexual Harassment National Inquiry Report, 2020.
Office of the Australian Information Commissioner
1.39
Key issues discussed included:
workload, funding and resolution timeframes for Freedom of Information matters;
proceedings against Facebook in the Federal Court of Australia in relation to the Cambridge Analytica matter;
data breaches notified under the Notifiable Data Breaches scheme;
requests for documents related to the National Cabinet;
investigation into the Department of Home Affairs with regards to statutory processing time frames under the FOI Act; and
application of Freedom of Information requirements to WhatsApp and text messages.
Inspector-General of Intelligence and Security
1.40
Key issues discussed included:
jurisdiction of the IGIS following the expansion of the National Intelligence Community;
oversight functions of the IGIS;
the Comprehensive review of the legal framework governing the National Intelligence Community by Mr Dennis Richardson AC;
inquiry into the Alan Johns matter;
provision of mental health and welfare support to members of the intelligence community;
oversight of activities undertaken by foreign intelligence services in joint operations with Australian intelligence agencies; and
the COVIDSafe app report by the IGIS for the Information Commissioner.
Administrative Appeals Tribunal
1.41
Ms Sian Leathem, Registrar, provided an opening statement.
1.42
Key issues discussed included:
answers to questions on notice from Additional Estimates 2019-20;
eligibility and processes for the termination of the appointment of a tribunal member;
the appointment and tenure of Mr Tony Barry, member of the AAT;
appointments to the AAT of individuals who have previously held political roles; and
part-time members, tenure and independence.
Australian Commission for Law Enforcement Integrity
1.43
Ms Jaala Hinchcliffe, Integrity Commissioner, provided an opening statement.
1.44
Key issues discussed included:
transition planning and funding for the Commonwealth Integrity Commission;
the ongoing investigation by ACLEI into the Australian Border Force, Operation Tardis;
ACLEI investigation into the Department of Home Affairs’ dealings with Crown Resorts, Operation Angove; and
ACLEI's caseload and the recent reduction in the number of ongoing investigations; and
the expansion of ACLEI's jurisdiction to include the Australian Taxation Office, the Australian Competition and Consumer Commission, the Australian Security and Investments Commission and the Australian Prudential Regulation Authority.
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
1.45
Key issues discussed included:
remuneration rates for witnesses appearing before royal commissions;
the number and duration of private sessions held in the course of the royal commission; and
the engagement of Mr Simon Wardale to give evidence before the royal commission.
Office of the Director of Public Prosecutions
1.46
Key issues discussed included the prosecution of Mr Richard Boyle regarding a Public Interest Disclosure.
Procedural issues
Attendance at estimates by the Australian Institute for Disaster Resilience
1.47
The committee agreed to invite AIDR to appear at its Budget estimates hearing on the basis that it is in receipt of public funds. AIDR 'develops, maintains and shares knowledge and learning to support a disaster resilient Australia'.
1.48
Some discussion was had as to the permissible scope of questions that could be asked of AIDR, given that it is a non-government entity:
Mr Pezzullo: I'm not particularly concerned or reflecting on the substance of the question; I would just like your guidance about the governance arrangements here. In many years of long attendance here, portfolio agencies that are accountable to a minister, or constitute under an act of parliament, are called before the estimates committee or legislation committee when it meets in an estimates session. Noting that Ms Leck runs a business division within the AFAC, as has been described, that is wholly funded by the emergency management part of my department, surely the rendering of the services for which she is commissioned to provide is perhaps within remit, although, typically, it's never been the case in my experience that service providers, contractors or think tanks are called to an estimates proceedings.
CHAIR: It is unusual.
Mr Pezzullo: Accountability for the expenditure of the funds rests with me. I can't see how what the institute does otherwise beyond what it is strictly contracted to do is a matter that falls within the estimates considerations of this committee. It would be a similar situation yesterday where we heard about service providers who provide countering violent extremism services and for you to say, 'We have heard from the official; now we want the contractor.' I don't in any way mean to diminish the excellent work that the institute does. We really have a great productive relationship with them. But they are a service provider to me effectively. I'm not sure what their remit is beyond what I fund them to do. I'm just challenged as to what standing they have to be appearing here on those sorts of questions. They are not a portfolio agency.
CHAIR: They are not a portfolio agency. The basis upon which they are called is that there is scope for scrutiny of anyone who's in receipt of Commonwealth funds. But it strikes me that that's the feel to which the questions—
Mr Pezzullo: Sorry, Madam Chair; did you say 'in receipt'?
CHAIR: Yes.
Mr Pezzullo: So you could call Boeing if they are building a plane or ASPI if they are funded to do research, or Lowy if they are funded to do research? I'm just seeking a ruling from you, because that has got a profoundly impactful consequence for public administration.
CHAIR: I don't want to give a ruling for all-time on that subject.
Mr Pezzullo: Thank you, Madam Chair.
CHAIR: But I do think that, given the unusual nature of the appearance, we do want to be quite confined in the nature of the questions that we ask. I'm sure Senator Patrick has that in mind as he asks his questions this morning.
1.49
This issue was raised on subsequent occasions during AIDR's appearance. On each, the Chair ruled that questions should be confined to the services for which AIDR receives Commonwealth funding. The committee will research and critically examine the scope of its ability to call bodies that are in receipt of Commonwealth funding in their capacity as contractors to a department so that a clear position can be put at the commencement of the next Senate Estimates hearing of the committee. There is some weight in the argument made by Mr Pezzullo and it deserves exploration and a firm ruling.
Attendance of Mr David Nockels
1.50
At the hearings on 19 and 20 October 2020, Senator the Hon Kristina Keneally sought to ask questions of Mr David Nockels, an officer within the Department of Home Affairs, in relation to his involvement in communications between Mr Ian Stewart, former director of Paladin Group, and the department in 2017. Mr Nockels no longer occupied the position he held at the relevant time, but remained employed by the department as First Assistant Secretary, Identity and Biometrics Division.
1.51
Senator Keneally first raised her intention to ask questions of Mr Nockels during Budget estimates 2020-21 hearings on Monday, 19 October 2020. Mr Nockels was not present at the time and did not appear. Senator Keneally raised the matter again on Tuesday, 20 October 2020 and tabled advice from the Clerk of the Senate with respect to whether an officer could be asked to appear to answer estimates questions relating to responsibilities held in a previous position with the department. Senator Keneally again requested that Mr Knockels attend the witness table. In response, Mr Pezzullo stated:
I am not sure where he physically is. In the second limb of your request, which I just heard you canvas, I am disinclined short of a direction of this committee, which presumably has the force of the Senate behind it, simply as a matter of principle because, otherwise, how many jobs do you go back?
1.52
Senator Keneally requested the committee hold a private meeting to consider the matter. Following the private meeting, the committee requested that Mr Nockels attend the hearing to allow Senator Keneally to question him. Mr Nockels attended as required.
1.53
Senator Keneally requested that Mr Nockels attend the spill-over hearing on 4 December 2020. The committee was advised that he had transferred to another department and was no longer in the employ of the Department of Home Affairs.
Acknowledgements
1.54
The committee thanks the ministers and officers who provided evidence, and support for, the committee's hearings.
Senator Amanda Stoker
Chair