Finance and Public Administration Legislation Committee
Estimates hearings, 13 February 2012
Department of Prime Minister and Cabinet
- Senator Chris Evans, Minister for Tertiary Education, Skills, Science and Research; Leader of the Government in the Senate
- Dr Margot McCarthy, National Security Adviser
Senator RHIANNON: Minister, last December the COAG review of federal and state counterterrorism laws was one year overdue. When this issue came up at estimates in October, the Secretary of the Commonwealth Attorney-General's Department, Mr Roger Wilkins, admitted with his delightful use of language—honed over 10 years or more, probably, of state and federal estimates hearings—that the review had drifted. 'Drifted' was his word. Mr Wilkins went on to blame delays on the appointment of the independent national security legislation monitor and how the monitor's role in reviewing counterterrorism legislation would interact. We have heard today from the monitor, Mr Walker, and he told us that his office and the review do not interrelate at all, nor is it appropriate to do so. So in light of Mr Walker's response, was Mr Wilkins' answer incorrect? Who is correct? Mr Wilkins or Mr Walker?
Dr McCarthy: Senator, can you just repeat your account of what Mr Walker said about his role and the planned COAG review of counterterrorism legislation?
Senator RHIANNON: I am referring to what we just heard from Mr Walker. If I understood correctly, when I raised the issue of the COAG review with him, he said his office and the review do not interrelate at all, nor is it appropriate to do so. Whereas when I was questioning Mr Wilkins about the COAG review, probably the main reason that he gave for the delay in the COAG review was the appointment of the monitor and how the monitor's role in reviewing counterterrorism legislation would interact. So those two reasons seem to be at odds with each other.
Dr McCarthy: The COAG review is not yet in train but we expect that it will be shortly established. My recollection is that Mr Walker's advice was sought on that interaction and whether there was any reason why the review should be delayed in light of his forthcoming appointment. I also recall, from my hearing of what Mr Walker was saying, that he expected to be consulted and, indeed, looked forward to being consulted in the process of the COAG CT review. So we might be talking at slightly cross-purposes.
Senator RHIANNON: I am happy for you to take that on notice but I did think it was an important point in that, when I questioned Mr Walker about interrelating, I understood that he said it was not appropriate that they do so, whereas Mr Wilkins essentially gave that as a reason for the delay. I would just like that clarified. I am trying to understand the process of the reviews and the reason for the delays. I would ask you to clarify the issue. My specific question was: in light of Mr Walker's response was Mr Wilkins's answer incorrect? Who is correct? Mr Wilkins or Mr Walker? Can I leave that one with you?
Dr McCarthy: Certainly. I would, though, refer you to an answer to a question raised by Senator Ludlam in relation to the COAG review of counterterrorism legislation, specifically: how will the Office of the Independent National Security Legislation Monitor be engaged in relation to the review? This was tabled in September. The answer was that the review committee will take account of the appointment of the monitor and the role of the monitor in reviewing the Commonwealth national security and counterterrorism legislation. The government expects the review committee will engage with the monitor in a productive way such as through sharing relevant documents on Commonwealth legislation to avoid unnecessary duplication. And I think we should also check what Mr Walker said. I do not recall him saying that such cooperation would be inappropriate, but we can check the record.
Senator Chris Evans: I think that would be helpful. I think he was indicating that some knowledge of what they were doing was important. But he is also, appropriately, very fiercely independent and I think he was also just sending a message that he did not see himself as being engaged in their work so much.
Senator RHIANNON: I appreciate that. I was really going back to whether Mr Wilkins's comments were incorrect. I will leave that with you. I want to go to a couple of other issues to do with the COAG review to, again, ascertain where it is up to. Can you explain where it is up to? Has anybody been appointed to conduct the review and are there any impediments for it to get going now?
Dr McCarthy: The National Counterterrorism Committee, which is the committee of COAG which is taking this forward, has agreed on a list of people to be approached for the review and we are currently in the process of finalising the membership. I am not aware of any impediments and it is my hope that the review will commence in the near future.
Senator RHIANNON: You hope it will commence in the near future?
Dr McCarthy: Yes, I cannot give an exact time frame but in the near future while we settle details of the membership of the team of reviewers.
Senator RHIANNON: You cannot be any more exact than that? You can understand that, after such a lengthy delay, there are concerns that it continues to drag on. You cannot be any more exact with that information?
Dr McCarthy: No, but I hope it will commence in the near future.
Senator RHIANNON: I cannot ask for a definition of 'near future'.
Senator Chris Evans: It is longer than 'very shortly' and not as long as 'in the fullness of time'!
Senator RHIANNON: Thank you very much, Minister. I am glad you are here. We will put it into our definitions book. I would like to move on to issues about the Sri Lankan high commissioner. I am asking these questions because we are still waiting to hear back from Prime Minister and Cabinet about the questions we asked last time about the Sri Lankan High Commissioner to Australia. It has been reported in the media that the International Commission of Jurists Australia provided evidence to the Australian Federal Police last October with respect to the Sri Lankan high commissioner's command responsibility when he was an admiral in the Sri Lanka Navy and possible war crimes committed during the latter stages of the conflict between the Sri Lankan armed forces and the Liberation Tigers of Tamil Eelam. Has the Department of the Prime Minister and Cabinet had any discussions with the Australian Federal Police about this evidence?
Dr McCarthy: We did answer a question on notice that you put to the department at the supplementary budget estimates, and that was concerning advice that we provided to the Prime Minister on 28 March about the proposed appointment of the current high commissioner for Sri Lanka, which was provided before the high commissioner took up his post. Is that the question you are referring to?
Senator RHIANNON: Yes. My recollection is that I asked some further questions, which are the ones that we are still awaiting advice on.
Dr McCarthy: You did ask further questions, and my recollection is that those questions related to issues including visa processes that were more appropriately answered by the Department of Immigration and Citizenship.
Senator RHIANNON: So, even though he has come here as a diplomat, you are saying that you would go to just the regular questions about visas rather than through PM&C.
Dr McCarthy: On the question about what advice was provided on the high commissioner, that answer has been provided. I have in front of me some other answers to questions on notice that you asked. One question was:
What steps has the Australian government taken or is the government taking to investigate whether Sri Lankan officials seeking to attend CHOGM may be implicated in war crimes?
The answer to that was that that appropriately fell within the responsibility of the Attorney-General's Department. You also asked about who had applied for a visa to attend. We referred that to the Department of Immigration and Citizenship. The third question related to who was coming as part of the Sri Lankan delegation and whether those people travelling with the Sri Lankan President had 'sought certificates from the Australian government confirming immunity from any possible legal proceedings'. We took that on notice and subsequently advised that it fell within the responsibility of the Attorney-General's Department.
Senator RHIANNON: Thank you for that. I had understood that there were questions about the Sri Lankan high commissioner that we had not received answers for, but I will go back and double-check that. I also wanted to ascertain whether Prime Minister and Cabinet will take into consideration, in any discussions about the Sri Lankan high commissioner's accreditation, reports today that say the European Parliament has called on the United Nations to establish an inquiry into the alleged war crimes in Sri Lanka. I am trying to ascertain whether the issue with regard to the Sri Lankan high commissioner is now closed with regard to Prime Minister and Cabinet or whether, considering that there are ongoing developments internationally about a possible war crimes tribunal, you continue to monitor this issue in the context of the diplomatic representation Sri Lanka has in this country.
Dr McCarthy: As I think we explained at the last estimates hearing, and I think Mr Richardson was also asked some questions about this in the foreign affairs and trade estimates hearing, matters having to do with the seeking of agrÃ©ment for incoming representatives is a matter for the Department of Foreign Affairs and Trade and I would imagine any international legal issues are for the Attorney-General's Department.
Senator RHIANNON: Just stepping aside from the issue about the high commissioner, I would like to ask specifically: are there any discussions taking place in PM&C regarding the widening international call for a war crimes tribunal?
Dr McCarthy: Not specifically on that issue, although we obviously monitor international developments on a range of fronts.
Senator RHIANNON: When you say 'not specifically', could you explain what that means? Does it mean that you handle it sometimes or not in such a detailed way? 'Not specifically' means that something is happening.
Dr McCarthy: Sorry, Senator?
Senator RHIANNON: When I asked you that question, you said 'not specifically'. That suggests that something is happening. You have not ruled it out?
Dr McCarthy: As I said, we monitor a whole range of international developments, but we are not in the process of preparing advice on that particular issue.
Senator RHIANNON: You mean by that that the developments around a possible investigation into war crimes are being monitored but the information—I am just trying to understand how it works within your department—is not being passed on to the Prime Minister and Cabinet? What does monitoring mean? Does it mean that the bureaucrats just collect it or does it go on to the ministers?
Dr McCarthy: In any department there can be a whole range of reasons for preparing and providing advice to the Prime Minister—if the Prime Minister seeks advice, if we think that an issue has reached a stage where it is important that the Prime Minister be aware of the advice or, indeed, needs to make a decision. I am also advised that Mr Rudd issued a media release today on the issue of war crimes in Sri Lanka as Australia's response to the report of the Sri Lankan government's own inquiry. Questions on that could obviously be directed to the Department of Foreign Affairs and Trade.
Senator RHIANNON: Has any advice been prepared for the Prime Minister on this issue?
Dr McCarthy: No.