LEGAL AND CONSTITUTIONAL AFFAIRS

Attorney-General's Department
Management and Accountability
Mr Roger Wilkins AO, Secretary and Ms Annette Willing, Assistant Secretary, Security Law Branch

Senator LUDLAM-I have a couple of questions, one of which may have to go through to the minister, but I will put them to the department. I am wondering whether you can tell us to what degree you are involved in the government's comprehensive approach to the review of the antiterror laws, including the establishment of an independent reviewer of the terror laws that are on the books?

Mr Wilkins-We are discussing what you are referring to by a ‘comprehensive' review.

Senator LUDLAM-I can be a little clearer. Last year the Senate passed and sent to the House of Representatives a proposal from the opposition and the crossbenches for an independent reviewer of the terror laws, as has been proposed a number of times over the last couple of years, but it was left out of the original legislation-a standing review committee to establish whether the terror laws are functioning as intended. It was said at the time that the government would not be passing that legislation because they were undertaking to do such a thing themselves and that we would see legislation in the first half of the year. I am wondering whether that is a process you are aware of and, if so, how you are inputting into it.

Ms Willing-The Attorney did announce on 23 December that the government would be establishing a national security legislation monitor. That is being progressed. The government said it would progress that as a matter of priority. The legislation is being developed by the Department of the Prime Minister and Cabinet and they are consulting us on that. The timing will be a matter for the government but they have said that it will be a matter of priority.

Senator LUDLAM-But it is being led by Department of the Prime Minister and Cabinet. Can you give us an idea of the degree to which you are being consulted?

Ms Willing-Quite heavily. It was something that the Attorney announced and the legislation is being developed in close consultation with the Attorney-General's Department.

Senator LUDLAM-What form has your advice to the Department of the Prime Minister and Cabinet taken?

Ms Willing-It has partly been being involved in the drafting instructions to the Office of Parliamentary Counsel.

Senator LUDLAM-Have you advised on specific areas of law that you would see as priorities or is it simply the establishment of a mechanism to review overall?

Ms Willing-Yes, simply the establishment of a mechanism.

Senator LUDLAM-Are there particular areas of the legislation that we collectively call ‘terror laws' that you are more or less concerned about or have directed the drafting toward?

Ms Willing-Yes. The government, I think, indicated that the focus should be on those terrorism laws that have been established above and beyond the criminal law. So they are primarily the laws that were part of that 2002 package-part 5.3 of the Criminal Code, primarily, and part IC of the Crimes Act and a range of other legislation as well.

Senator LUDLAM-That is quite helpful, just giving us those, but are you able to inform us a bit more broadly and perhaps take on notice if need be the particular areas that you are looking at?

Ms Willing-They are some of the areas, but I think in terms of the detail that would be a matter for government.

Senator LUDLAM-Okay. Is your involvement ongoing?

Ms Willing-Yes, it is.

Senator LUDLAM-When do you anticipate that your role would be concluded in that process?

Ms Willing-I suspect when the legislation is through parliament.

Senator LUDLAM-That is fair enough. Do you have an expectation of when the drafting instructions would be complete and we would see something in the parliament?

Ms Willing-The timing will be a matter for the government. It is being worked on at the moment, but I really cannot give any indication of that.

Mr Wilkins-It is probably not appropriate to give that sort of information, which is part of the work of cabinet. To elucidate, it is sitting in the Prime Minister's department so that it has some objectivity and distance from the Attorney's portfolio and administration, because that is where the laws will be administered-so it is to give it some distance and objectivity.

Senator LUDLAM-Sorry?

Mr Wilkins-To give it some distance from the Attorney-General's Department when it actually comes to operate, because we administer these laws.

Senator LUDLAM-Is it not normal, though, that the departments or the ministers with carriage of the laws would be the originators of reform proposals such as these? Why do you think there is the need for some distance in this respect?

Mr Wilkins-I think it is partly a question of perception; otherwise, you get a poacher-gamekeeper problem.

Senator LUDLAM-Okay. In response to a question on notice, you indicated that the department spent approximately $45 million overall on counterterrorism measures in 2007-08. My question goes to whether this includes the costs of the department's prosecutions of particular cases. For example, does this include the cost of prosecuting the Hicks, Habib and Haneef cases?

Ms Willing-The department itself is not involved in prosecutions. That figure of $45 million was compiled over various areas within the department that are involved in counterterrorism measures.

Senator LUDLAM-So you are not involved in prosecution but you are involved in monitoring those cases and bringing them before the courts, to a degree.

Ms Willing-Yes.

Senator LUDLAM-So would those funds include expenditure related to the three cases I listed?

Ms Willing-There would be a percentage of that figure that would be covered by those things, yes.

Senator LUDLAM-That is included. That is all I was trying to find out; thank you. As you are no doubt aware, the resources available to the prosecutions and the defence teams in these terror cases heard in Australia to date are quite asymmetrical. Significant effort is required to secure legal aid for a solicitor to accompany a barrister for the defence, whereas quite extensive teams of QCs are available for the prosecution. I would just like to know how much the department has spent in relation to the Jack Thomas case.

Ms Willing-Presumably you are asking about costs incurred by the DPP?

Senator LUDLAM-Or by your department specifically.

Ms Willing-Are you talking about legal assistance for someone? I do not quite understand the import of the question, Senator.

Senator LUDLAM-I will try and flesh it out. I am trying to establish to what degree the department is involved in expending resources in pursuing particular terrorism related cases, such as that of Jack Thomas.

Senator Ludwig-The confusion, I think, is over the word ‘pursue'. The usual case is that the AFP will investigate the matter and will then refer the prosecution to the Commonwealth Director of Public Prosecutions, who will make a decision to prosecute or not to prosecute. So I think the confusion comes from the role. I would like to provide assistance to you in this instance, but you can see the difficulty the question that you are asking is presenting to the Attorney-General's Department, which has policy responsibility for this area.

Mr Wilkins-The strict answer to your question is nothing, actually-zero. But I suspect what you are wanting to know is how much the Crown spent on investigations and prosecutions, which are questions that should be directed to the DPP and, presumably, the police.

Senator LUDLAM-All right, I will leave that there. Lastly, we have information that in one particular
case a jury had brought a dictionary into their deliberations to ascertain the definition of the word ‘fostering' when it comes to the doing of a terrorist act. Is that something that has been brought to your attention? How does the Attorney-General interpret the word ‘fostering'?

Mr Wilkins-The answer to the first part of your question is: we are not aware of that. I can try and give you a definition of fostering, but I do not know if that is the point of your question.

Senator LUDLAM-I guess it is in two parts. Firstly, you are not aware that a jury had actually taken recourse to a dictionary to ascertain whether an act had fostered a terrorist act or not.

Mr Wilkins-No, not aware of that.

Senator LUDLAM-I just wondered whether that might have fed into your drafting instructions or if it is something that you might like to take away.

Ms Willing-We can certainly look at that.

Mr Wilkins-We can look at that, yes.

Senator LUDLAM-Thanks. I have no other questions.