Policy approach in Canberra: Ready, Fire, Aim

The Commonwealth Ombudsman wasn't consulted prior to the announcement of the decision to abolish the Office of Australian Information Commissioner and to reassign the FOI complaints function to that office. No additional resources were allocated in the Budget but some informal talks have started with AGD. Good luck. Extract from Estimates below.

The intelligence agencies, the Inspector-General of Intelligence and Security, and the National Security Legislation Monitor Brett Walker SC weren't consulted either about the abolition of Mr Walker's position and he got to know about it on 13 May, Budget day.

Rest easy in your beds though, we have plenty of oversight of those protecting national security according to Dr McCarthy, the Associate Secretary of National Security and International Policy, Department of Prime Minister and Cabinet:

 Senator JACINTA COLLINS: Why is the government abolishing the position?

Dr McCarthy : The government concluded that there is a range of oversight mechanisms available for national security legislation in addition to the National Security Legislation Monitor. Over the course of his three-year term, the monitor has conducted a very thorough review of national security legislation. At the same time the Council of Australian Governments commissioned a review of counter-terrorism legislation. That was a review that was agreed to when the Commonwealth and the states and territories agreed to new counter-terrorism legislation in 2005. At the moment, the government is considering some 98 recommendations in total from the monitor's second and third reports and the COAG review of national security legislation. There are also oversight mechanisms such as the Inspector-General of Intelligence and Security, the Parliamentary Joint Committee on Intelligence and Security, and of course other committees of the parliament.

Senator JACINTA COLLINS: Why then would the UK independent reviewer of terrorism legislation, David Anderson QC, have cited our legislation as a model for other democracies to follow?

Dr McCarthy : Well, that is the view of the UK monitor.

 Extracts from both Estimates hearings on 26 May below. 

 Ombudsman

Senator JACINTA COLLINS: I am happy to ask some questions. Thank you for allowing me that opportunity on this occasion, Chair. Mr Neave, the abolishing of both the Office of the Australian Information Commissioner and the Freedom of Information Commissioner involved the transferral of some of their functions to the ombudsman without additional resources. Is that correct?

Mr Neave : Discussions are underway at the moment on that issue. The role has not come to us yet of course because legislation will be required. So, in due course, the role will come but it has not arrived as yet.

Senator JACINTA COLLINS: In terms of the Independent National Security Legislation Monitor we heard about changes occurring before legislation has been passed. I am asking whether any additional resources have been allocated thus far.

Mr Neave : Not that we are aware of, but discussions are continuing between us and the Attorney-General's Department in relation to the change, but they have not commenced formally. We will need to see how that transpires in due course.

Senator JACINTA COLLINS: When the legislation passes.

Mr Neave : Yes, that is right.

Senator JACINTA COLLINS: Are the functions of the information commissioner and the FOI commissioner continuing or have they been terminated?

Mr Neave : At the moment they are underway because in order to make that change legislation is required, but I am not really able to comment on that issue; that is a matter for the Attorney-General.

Senator JACINTA COLLINS: As I said, we just heard that the Independent National Legislation Security Monitor, which is also established by and operates under legislation, and indeed requires a monitor to be appointed, is not functioning, but, to your understanding, the FOI commissioner and the information commissioner remain functioning.

Mr Neave : Yes, as far as I am aware.

Senator JACINTA COLLINS: It would be a concern to you if it is envisaged that you will pick up at least some of their functions and if there was going to be a lull in those functions operating, wouldn't it?

Mr Neave : I think that the role which is envisaged for us is a matter which the ombudsman's office is familiar with, given that before the Office of the Australian Information Commissioner was established that role was performed by the ombudsman's office. I am looking, as far as possible, at the bureaucratic level to make sure that there is, first of all, a continuing service available to the community, because that is the ombudsman's role, and I will be doing everything I can to ensure that that occurs.

Senator JACINTA COLLINS: You are saying that, were that role not to continue through the currently legislated arrangements—because it is envisaged that they will ultimately move to you—and were it to involve an absence of that provision in the interim, that would be very concerning to you.

Mr Neave : I would not use quite that language. What I am intending to do, as I said before, is to ensure that, by agreement between my office and the current commissioner's office, we will put in place arrangements to ensure that the level of service to the community continues.

Senator JACINTA COLLINS: Even if that meant you picking up additional functions before the legislation had been passed?

Mr Neave : No, I do not think we would be able to pick up additional functions until the legislation is passed. What I am saying is that of course there are a number of issues that have to be worked through. I am very committed to making sure we work through them effectively and efficiently in order to continue to provide a service, and for that reason, as I said at the outset, we have had some very preliminary discussions with the current commissioner, and those discussions will continue.

Senator JACINTA COLLINS: Okay. Was the Ombudsman consulted about the new functions that would be conferred under the proposed legislation?

Mr Neave : No.

Senator JACINTA COLLINS: In your view, what additional resources would be required to meet those functions?

Mr Neave : I think first of all I would need to see the legislation and what exactly is envisaged. That is a time that I would start looking at issues of resources. At the moment, it is just a little too early to estimate resources, because, as we all know, resources are finite and we all need to operate within the resource limits which we have and which might be available to us. So it is a bit too early to speculate on resources just yet.

Senator JACINTA COLLINS: Then I presume it is also too early to speculate on how adopting additional functions might bear on existing functions.

Mr Neave : Yes, it is a little bit early to do that. I would agree with that.

Senator JACINTA COLLINS: Given, as I am understanding it, you are also dealing with the additional 2.5 per cent efficiency dividend, if you were not to be allocated additional resources with the transfer of any of these responsibilities, what impact would that have on the agency?

Mr Neave : The whole resource issue, to set the context, is always going to present agencies and departments with challenges. My own experience with some of the resource issues which were encountered when I first became a public servant in 1987—a time which is actually very similar to the times that we are going through right now with efficiency dividends of about three per cent per year—meant that one had to focus the way in which services were delivered with great precision. One needs to take the opportunity of looking at processes and procedures throughout the office. We have, of course, within the Ombudsman's office had a lot of discussion amongst the staff and our people about how we will be coping with the pressures which are on our office along with the rest of the public sector. I am very confident that we will be able to provide a reasonable level of service as we always have as long as the estimates of what we are called upon to perform with the resources remain broadly the same as they have been indicated to us so far. It certainly presents us, along with a lot of agencies, with a lot of challenges, but I would be confident that we will be able to cope with them.

Senator JACINTA COLLINS: What year was it that the Information Commissioner was established?

Mr Neave : It was before my time—I think 2010.

Senator JACINTA COLLINS: And the FOI Commissioner?

Mr Neave : At the same time.

Senator JACINTA COLLINS: Okay. What concerns me in your case is that you are not only looking at an efficiency dividend scenario; you are also looking at adopting additional functions. For example, when the information commissioner was established, was there an adjustment in terms of the resourcing of the Commonwealth Ombudsman? You indicated you previously had dealt with some of those functions.

Mr Neave : My office dealt with them, yes. I was not there at that stage. I will need to have a look and take that as a question on notice to see what resources we lost that stage, if any. We may not have lost resources.

Senator JACINTA COLLINS: That would indeed be an ideal environment in some ways for the work that you would carry out. To lose functions but not lose revenue would be a dream, I would think, in your position.

Mr Neave : Yes. It is always quite a nice thought!

Senator JACINTA COLLINS: I will be interested to hear on notice whether that is actually what transpired since you took us through the history of efficiency dividends but perhaps not the history of changes in roles and function.

Mr Neave : I accept that, yes.

Senator JACINTA COLLINS: I remain concerned that you are confronting both the efficiency dividend and a gain in functions but accept, as you say, that exactly what those additional functions may be—from my point of view I would like to see them as broad as possible so that we do not lose some of the functions that were previously carried out. I am concerned about whether you will attract resourcing sufficient to carry out those functions.

Mr Neave : Thank you.

Senator JACINTA COLLINS: That concludes my question.

.............................................

Independent National Security Legislation Monitor

Senator JACINTA COLLINS: Why is the government abolishing the position?

Dr McCarthy : The government concluded that there is a range of oversight mechanisms available for national security legislation in addition to the National Security Legislation Monitor. Over the course of his three-year term, the monitor has conducted a very thorough review of national security legislation. At the same time the Council of Australian Governments commissioned a review of counter-terrorism legislation. That was a review that was agreed to when the Commonwealth and the states and territories agreed to new counter-terrorism legislation in 2005. At the moment, the government is considering some 98 recommendations in total from the monitor's second and third reports and the COAG review of national security legislation. There are also oversight mechanisms such as the Inspector-General of Intelligence and Security, the Parliamentary Joint Committee on Intelligence and Security, and of course other committees of the parliament.

Senator JACINTA COLLINS: Why then would the UK independent reviewer of terrorism legislation, David Anderson QC, have cited our legislation as a model for other democracies to follow?

Dr McCarthy : Well, that is the view of the UK monitor.

Senator JACINTA COLLINS: Do they not have similar other agencies to the ones that you are highlighting?

Senator Abetz: It might be the topic for a study tour.

Senator JACINTA COLLINS: I am not much interested in study tours.

Senator Abetz: I thought that is what you were angling for!

Senator JACINTA COLLINS: No, I do not have time for that. Sorry, there was a question there.

Senator Abetz: Well, we do not know.

Senator JACINTA COLLINS: You do not know about the UK agencies?

Dr McCarthy : Yes.

Senator JACINTA COLLINS: Okay. As you indicated, legislation has been proposed. But is the government not obliged by legislation to appoint a monitor?

Dr McCarthy : The monitor's role is obviously vacant at the moment and I think there are good practical reasons for that. With a bill having been introduced to repeal the legislation that underpins the role of the monitor, to appoint a new monitor while a bill is before the parliament to repeal the relevant legislation would cause some practical difficulties.

Senator Abetz: You might not get quality applicants.

Senator JACINTA COLLINS: There is a strong argument that the current arrangements propose, or prescribe, an ongoing role for the monitor despite what has been proposed in the legislation that is yet to be considered by the parliament, and that the current legislation prescribes that a monitor be appointed. So why not an acting monitor, even, in that context?

Dr McCarthy : The government has decided to leave the role vacant.

Senator FAULKNER: Were the views of intelligence and security agencies sought on whether the position should be abolished?

Dr McCarthy : Not that I am aware of.

Senator FAULKNER: They weren't sought?

Dr McCarthy : Not that I am aware of.

Senator FAULKNER: Was the view of the IGIS sought in relation to this matter? You mentioned the IGIS, Dr McCarthy, and that is fine. But I am not aware of a legislation monitoring role effectively to be a fundamental responsibility of the IGIS. In other words, we know what the role of the National Security Legislation Monitor is, but the IGIS has a very different role, doesn't it?

Dr McCarthy : The IGIS has oversight of the agencies in the Australian intelligence community—one of which, of course, is the Australian Security Intelligence Organisation, which has a range of extraordinary powers under counter-terrorism legislation.

Senator FAULKNER: But, specifically, it does not have a legislation monitoring role. The IGIS's responsibilities are defined in legislation, aren't they?

Dr McCarthy : They are.

Senator FAULKNER: Does that include monitoring legislation?

Dr McCarthy : I do not have the legislation in front of me.

Senator FAULKNER: When you said intelligence and security agencies, which, I appreciate, the views of which were not sought, do you know if the views of IGIS were sought?

Dr McCarthy : Not to my knowledge.

Senator JACINTA COLLINS: What will occur in terms of this appointment if the legislation does not pass the parliament?

Dr McCarthy : That would be a matter for the government.

Senator Abetz: That is hypothetical.

Senator JACINTA COLLINS: Yes, it is hypothetical. But what is not hypothetical is in failing to fill this position the government is essentially acting in contempt of the parliamentary process, because it is required under the current legislation to fill the appointment—at least in an acting capacity.

Senator Abetz: And when we have a look at the history of this appointment: Three years and—four reports?

Dr McCarthy : His four reports.

Senator Abetz: Yes, four reports. And under the previous government there were two?

Dr McCarthy : That is right.

Senator Abetz: Yes, two under the previous government—none of which were responded to by the previous government. They had this publicly funded role of providing reports to which the government of the day did not respond and, some might say, treated the position with a degree of contempt by not dealing with the recommendations of those reports. The government is committed to responding to all four of them. I have just been reminded that the Attorney indicated a response to the two reports from under the previous government that he will be responding to, and the fourth report has not been tabled yet.

Senator FAULKNER: For the reports that have been tabled, can you please say when they were tabled in the parliamentary sessions?

Dr McCarthy : I do not have in front of me the date on which the first report was tabled. I note, though, that the first report was by way of setting out a work program for the rest of the term. The second report was tabled in parliament on 14 May 2013. The third report was tabled in parliament on 12 December 2013.

Senator FAULKNER: On notice I would appreciate the date of the tabling of the first report. I could easily ask through the parliamentary department, obviously. Are you able to indicate when those reports were finalised? You have given me when they were tabled. When were they finalised?

Dr McCarthy : Senator, are you referring to when the reports were submitted?

Senator FAULKNER: Submitted by Mr Walker SC—the national security legislation one.

Dr McCarthy : The second annual report was provided to the then Prime Minister on 20 December 2012. The third annual report was provided to the Prime Minister on 8 November 2013. The fourth and final report for the monitor, given that his term expired on 20 April, was submitted on 28 March 2014.

Senator FAULKNER: On 28 March this year?

Dr McCarthy : That is right.

Senator FAULKNER: Are you able to indicate why that report has not been tabled at this stage?

Dr McCarthy : It is due to be tabled within 15 sitting days, which I think means it is due to be tabled in the Senate on 10 July and in the House of Representatives on 19 June.

Senator FAULKNER: Yes, that is when the tabling period expires and evaporates. But, if it was submitted on 28 March, I am wondering whether there is any indication as to why it has not been tabled.

Dr McCarthy : It has not yet been tabled, Senator.

Senator FAULKNER: We are on the same wavelength here. I know it has not been tabled. I totally accept that, Dr McCarthy. You may not. I am just asking why.

Senator Abetz: We will take that on notice. Usually governments like to have the opportunity to read, digest and consider these reports before tabling. Whether that is the reason or not in this case, I do not know. That is why I am taking it on notice.

Senator FAULKNER: Have these reports been considered and digested then?

Senator Abetz: I am not the relevant minister and I do not know.

Senator FAULKNER: You made some statements previously about responses to the reports.

Senator Abetz: Yes, but you would have heard just as well as I did when the Attorney was answering a question in the Senate during question time, and that was my source of information. Given the keen attention you pay to answers in question time, I would have thought that would have registered with you as well, Senator Faulkner.

Senator FAULKNER: I did pay attention, and you are quite right—I do keenly pay attention to those answers—

Senator Abetz: You are the exempt one.

Senator FAULKNER: I totally accept what you say—I do pay keen attention to those answers that are worth paying attention to. On this particular occasion I am interested in understanding why the fourth report has been submitted on 28 March, given your comments, but has not been tabled at this stage. That has been taken on notice. Are you able to say, Dr McCarthy, whether agencies have been asked to provide in the broad responses to recommendations? Is that how the process works?

Dr McCarthy : The Attorney-General's Department, as the department responsible for administering national security legislation, is coordinating responses to the monitor's reports that have been tabled.

Senator FAULKNER: I think you can ask that tomorrow morning.

Senator Abetz: I appreciate that.

Senator FAULKNER: It is not done by the Department of Prime Minister and Cabinet?

Dr McCarthy : That is right.

Senator FAULKNER: But the national security legislation monitor did sit within the Department of Prime Minister and Cabinet? Is that correct?

Dr McCarthy : Yes.

Senator FAULKNER: The secretariat, which I think is fairly small, that services the national security legislation monitor, sits within the Department of Prime Minister and Cabinet?

Dr McCarthy : Yes.

Senator FAULKNER: How large is that secretariat?

Dr McCarthy : Originally, the monitor was supported by an executive level 1 officer working part time. Subsequently—in 2012—the monitor sought additional resources, which were provided, and a part-time officer at the APS6 level was employed.

Senator FAULKNER: What has now happened to those officers? Have they effectively—perhaps not using the correct terminology here, but let's use user-friendly terminology—had their duties reassigned?

Dr McCarthy : That is right.

Senator FAULKNER: So there is no further role at all within the Department of Prime Minister and Cabinet for anything relating to the national security legislation monitor? Everything we are dealing with here then, effectively, is historical, if you like. I think what you are saying is that there is no current role, but I just want to be clear on this.

Dr McCarthy : Not in relation to the administration of the office.

Senator FAULKNER: Not in relation to the administration of the office; but what role does the department then have, currently?

CHAIR: Will this conclude your questioning, Senator?

Senator FAULKNER: That depends on what the answer is.

Dr McCarthy : My colleague has just informed me that the executive level 1 officer is performing some duties in relation to the office of the monitor relating to records—record keeping and so on—in anticipation of the winding up of the office, should that be what occurs.

Senator FAULKNER: I am not quite clear on that. Is this effectively an archiving role—is that what we are talking about?

Dr McCarthy : That is right.

Senator FAULKNER: I accept there are some functions, but I imagine they would not be very time-consuming. Would it be fair to say that largely that officer has been reassigned?

Dr McCarthy : Largely, yes.

Senator FAULKNER: But, apart from that, that is the only role the Department of Prime Minister and Cabinet has?

Dr McCarthy : Yes, noting that obviously we will be involved as one of the agencies that would be consulted by the Attorney-General's Department in relation to government responses to the reports. But I think you are talking about the role of the monitor himself.

Senator FAULKNER: I am only talking about the administration at this point. There are a range of very substantial policy issues and other I think very important issues that arise from this decision but I do not want to waylay this committee, given that the role of PM&C is quite constrained in terms of effectively quite a small administrative and support role for the former National Security Legislation Monitor before his resignation. He did resign, didn't he?

Dr McCarthy : His term came to an end.

Senator FAULKNER: That is a much better way of describing it, before his term ended, and now we are effectively in this interregnum. You have explained that there has been no reappointment.

Dr McCarthy : That is right.

Senator FAULKNER: And there is a proposal from the government which Senator Abetz has made clear and I think accurately indicated to us that the government intends to introduce legislation to have the position abolished. That is true too, isn't it?

Senator Abetz: It has already been introduced.

Senator FAULKNER: Legislation has been introduced to abolish the position.

Dr McCarthy : That is right, 19 March.

Senator FAULKNER: There is very little role for PM&C left. So there are substantial issues but, as far as the substantive issues are concerned, it strikes me, Chair, that largely they are not matters that I want to address with PM&C.

Senator JACINTA COLLINS: My final question was with respect to Mr Brett Walker and whether the Prime Minister met with him before the proposal to abolish the position, and if the extension of his term was an option that was canvassed with Mr Walker.

Dr McCarthy : To my knowledge, the Prime Minister did not meet with Mr Walker. As to what may or may not have been canvassed in respect of the role, that goes to advice to government.

Senator FAULKNER: But it is reasonable for Senator Collins to ask how was it communicated to Mr Walker that the position had got the chop—or was it communicated to him?

Dr McCarthy : It was in person by Dr Watt, the secretary of the Department of the Prime Minister and Cabinet.

Senator FAULKNER: When did Dr Watt see Mr Walker, please?

Dr McCarthy : It was 13 March.

Senator FAULKNER: Did this involve only Mr Walker or the other possibly two people in the office?

Dr McCarthy : To my knowledge, it was only Mr Walker. I will check with my colleague. As far as we are aware, it was a discussion between Dr Watt and Mr Walker.

Senator FAULKNER: And Dr Watt effectively informed Mr Walker that legislation was going to be introduced to abolish the position.

Dr McCarthy : That is right.

Senator FAULKNER: What was the date again of Mr Walker's term ending?

Dr McCarthy : 20 April.

CHAIR: Senator Faulkner, can I ask you to conclude your line of questioning because we are scheduled to break and Senator McKenzie has a couple of minutes. Have you concluded your questions for the moment?

Senator FAULKNER: I am happy to cede. I am very generous in these sorts of things. If Senator McKenzie has some important questions to ask, that is fine.

Senator McKENZIE: Going back to some earlier evidence about government's implementation of the recommendations made by the security monitor, the annual report from November last year on the actual recommendations made on 20 December 2012 says that nothing had come to the attention of the monitor about any governmental or official response to it. It runs through a variety of recommendations in the annual report and says that no action was taken by the former government on many of the recommendations made by this particular body. I just wanted to clarify that. It was the sense I got from some earlier evidence from you, Minister.

Senator Abetz: Yes, that is right.

Senator McKENZIE: What were the entitlements of Mr Bret Walker as the national security monitor?

Dr McCarthy : The monitor's remuneration and allowances were $243,390 per year.

Senator McKENZIE: Could you break that down into salary and allowances. Can you separate that out, please.

Dr McCarthy : Yes. The salary component was $207,720. The allowance component was $35,670.

Senator McKENZIE: Was that an annual salary or per diem?

Dr McCarthy : An annual salary.

Senator Abetz: It was not a full-time job. It was 60 days a year, I understand.

Senator McKENZIE: $207,000 for 60 days.

Senator Abetz: That equates to those tugboat operators in Port Hedland, Senator Smith.

Dr McCarthy : I am just informed that it was like a per diem. The monitor would effectively claim against time that he had worked. Different amounts were claimed in each year. There was an allocation and then an amount that was spent. In 2012-13, for example, the spend was $235,473. The table listing these figures does not seem to be right, so we will take it on notice.

Senator McKENZIE: Was Mr Walker Canberra or Sydney based?

Dr McCarthy : Mr Walker's full-time role as a barrister was in Sydney but he would spend time in Canberra when the—

Senator McKENZIE: On notice, could you also supply the travel costs. Is Mr Walker the same lawyer who is representing former Prime Minister Rudd before the royal commission on the Home Insulation Program?

Dr McCarthy : That is my understanding.

CHAIR: That concludes the questions of the Independent National Security Legislation Monitor. Thank you, Dr McCarthy, for your attendance this evening.