Senate Legal and Constitutional Affairs Legislation Committee, , 3:37:57 to 4:05:34
Officials discuss the scope of the Royal Commission into recent attacks and the legal thresholds for managing protests on university campuses.
Topics: Royal commissions, Public safety, Education
Speakers: Stephanie Foster PSM, Hamish Hansford, David Pocock, Tyron Whitten, Hon Jonathon Duniam, Alex Engel, Ciara Spencer, Hon Murray Watt, Jana Stewart
>> Um, if I could pick up where I left off a little earlier, was the department um asked by any member of government on for advice on what sort of inquiry should be portfolio section in the context of the Royal Commission. Um and my answer was that um I had a number of discussions with my
ministers and officials uh collectively. Obviously in this forum we wouldn't go to the nature of that advice. >> Yes. And not seeking to do so. So the uh you talked about it in the context in your answer to me just then of a royal commission. So just to be clear though, the multiple interactions you had were about a range of different inquiries that might >> about what what inquiry might um be
established, how that would work, how we could effectively engage with it.
>> Mhm.
Okay. And specifically in that, were you asked about whether a national royal
said that um I would not characterize um those discussions as the seeking of and the provision of formal advice.
>> Sure. >> They were, you know, we were all operating at pace in response to
>> a horrific um uh event. M
>> um and so the the discussions were more
about what the possibilities might be, what the pros and cons of those were. >> Okay. Um that that makes sense to me. Was there any request from um anyone Yeah. any member of government
about whether the uh Richardson review
would be sufficient to identify all of the key issues associated with the events at Bondi.
Again, Senator, we had um discussions uh both sort of at a uh portfolio level and more broadly across government about um uh the parameters of the Richardson review and um its its uh efficacy to establish um what we needed uh to know and do in
response to the Bondai attack. >> Okay. And just on that interaction between the Richardson Review and the Royal Commission, are you able to summarize for me how the two bodies of work will actually
interact? >> I I I will Senator give it a a red-hot
go. that of course is the purview of attorney general's department um as the the
uh organization that manages and runs the royal commission and has managed and the integration of the Richardson review. The way I answered you in that
way is I'm conscious that attorney general's department has already appeared. Yes. >> Um and so to give you u my understanding um the Richardson review was obviously called first The Royal Commission was then established and the members of the
Richardson review including Mr. Richardson have been um uh appointed now
to the Royal Commission and form part of the Royal Commission. >> Okay. And so there will be that level of interaction and I can ask of the attorney generals what formal arrangements might exist. Was the department asked for any advice in relation to uh who could be a royal commissioner or royal or plural royal commissioners? >> No, Senator.
>> Is that because that's a matter for the attorney generals and it has no interaction with this agency whatsoever? Okay. >> Yeah. It's it's fair and square their territory to manage the establishment of
>> Okay. Thank you very much. Um I just wonder then um bearing in mind that some of these questions might go to the issue that is under investigation. I do I want to ask and if you can't answer please let me know but whether Naveiv Aram or Sajjid Aram um were at the rally that occurred on the Sydney Opera House steps on the 9th of October 2023. Senator, um I think any questions about
the acrims and their activities >> um could go to matters which could prejudice the criminal inquiry and because I'm not running that I won't
>> Certainly. And the other thing um that I should say is that um it's not the department of home affairs role to monitor one of your rallies and I will ask your colleague Mr. Bird just a little later on.
>> Okay. Um if I can go to I'll I'll put some questions on notice and then >> we'll see how we go with those. The counterterror coordination center. Okay,
if I can ask some questions there. Um, what was the role of the center in responding to the Bondi attack? >> We'll get Mr. Hansford to run you through um through the activities of the center. Uh, Senator, so the um counterterrorism coordination center um effectively in its title is coordinating information in
relation to the incident particularly points and understanding what's going on and providing advice to me as the Commonwealth Canada terrorism coordinator and and through me to the the Minister for Home Affairs. um on on
Management Agency's National Situation Room effectively looks at all of the um issues that are occurring. There was a phone call then into our counterterrorism coordination center duty officer and that that then um
established a range of different um
bodies of work and and my role in during a crisis is effectively governed in the Australian government um crisis
management framework and there's a
across the Commonwealth um as well as um providing public information and talking points which were circulated throughout the evening of the 14th of December through a hot issues brief and then ultimately talking points early in the morning of the 15th of December. Um and then um after that um for example I I coordinated activity with states and territories um and and heard from New South Wales police um on the 15th of December to inform state and territory
law enforcement and policy organizations across Australia. and that all of that um work was supported by the counterterrorism coordination center. >> Okay. And so you mentioned there a range of actions following on that advice to the center. So if I can just understand in a material sense so staff of the center you talked about the duty officer but staff at the center or officers there are activated at that point. How many people typically are on hand at that point in time and how are they activated? Well, there's there's a duty officer who is contactable 24/7 and then can call in any number of staff that is needed for um response to an incident. We were cons conscious that um on the
evening of the 14th of December um that the prime minister's already said publicly that there was a national security committee of cabinet meeting called. So our first body of work is to understand what was happening provide a hot issues brief and to provide briefing cabinet meeting that the prime minister has publicly outlined um that he held that meeting and and then subsequently
held a press conference that evening. So, lots of different types of work, but understanding what's going on, reaching out to our New South Wales police counterparts, um um public engagement
team, making sure that we had advice um about the activation of the Australian government crisis management framework, understanding what we could say publicly, whole range of different activities from the Commonwealth
South Wales Police um were the first responders and that that arrangement is outlined in our national counterterrorism plan as the first
responders. We're really looking at the Commonwealth action to coordinate effort
then um operational activity obviously what's happening from a comwalth perspective. >> Yes. And so just on personnel at that point in time, as I say, we talked about the duty officer. How many other people
at any given time and what's the staffing of the unit more broadly? >> So, so the staffing footprint um Miss Spencer will will speak to the specifics who's got those, but just to to give you the arrangement, a duty officer will be on call and get a call in this case from the national situation room. They will then activate the senior leadership and obviously activated me, the secretary um and the the relevant first assistant secretary of the counterterrorism coordination center and we form a team to try and work out what's happened and how we respond on the evening and then in relation to the staffing numbers. >> So Kira Spencer, deputy secretary of law enforcement and domestic security um for this year the average staffing level for
that division is around 67. And so, Senator, the reason that we're not sort of saying 10 people get called in is because it's very much spec circumstance specific. >> Um, >> we can call any number in. We can also draw on the rest of our organization if they have particular expertise or or whatever. And so, it really it really does depend on what we need to do. >> Yes. Okay. And so, you want to go around? Okay. Thank you. I'll be back. >> He's very compliant. Uh, Senator Whitten,
>> I've got a couple of different lines of questioning, but I'll my first one's about gun buybacks. Um, I'd like to ask about the compensation to gun manufacturers and stores under the new firearms laws. >> Um, Senator Pope has just asked a number of
questions about the compensation for by
>> Yeah. So perhaps if I could tell Senator um Britain just in broad terms, we're working on the parameters of the buyback scheme at the moment. Um but there is not yet uh a government position on on how that will work. We're still working with states and territories and so we're
answers about what levels of of work. Do you mind if I ask a couple of questions then just on notice? You >> sure don't have to respond just so that um the the things I'm concerned about are part of your consideration when >> That would be really helpful, Senator. Thank you. >> Okay. Um so in relation to the new forarm law and proposed gunback schemes, can you talk about u well can you take into consideration uh gun stores and manufacturers and components u manufacturers of firearms, ammunition, um loss of business um for those I've
had a a meeting this morning with um people that are going to be affected and their their general um thoughts on the matter were if the scheme was similar to
that would have to be the the minimum that they would be hoping for. Um
send many many businesses to the wall. Um it's all going to have also going to
have an impact on gun stores that are used to transport um guns safely around the country. So when you're selling them from one one jurisdiction to another, I believe they rely on gun stores that have the specific um storage capabilities and security. Mhm. >> Now, if we start losing those out of the system, um they're not sure where the guns would be stored at that point or how they would get transported. So, [cough] I [clears throat] think there's a whole range of things and I I would encourage you to talk to people in the industry.
against guns and the whole lot, but it's Uh, another unintended consequence might be our sovereign capability in terms of businesses that are supporting the defense um in their uh with their capabilities
and that might only be part of their business. So if they lose the one part of their business that is the domestic market and to do research and development for uh defense um that will have an impact on our sovereign capabilities. So it's another another line that um needs to be taken into consideration. I' I'd strongly
advise or request that you speak to people in the industry that will be affected by this. >> Thank you, Senator. And I can >> they'll articulate it far better than I can. >> Yep. >> And thank you, Senator. And we are
engaging with the industry. >> I'll I'll leave that one. I'll move on to uh the next one. Um, in the October estimates, I spoke about the cost of deportations, deporting someone that had to be removed involuntary. Um, the reply I noticed was that the costs varied substantially depending on how they were deported and their requirements. Um, I'd like to ask instead for the total budget that was spent on the engagement and removal of the 3,457 that were removed from detention in 2425. Um, and it doesn't matter if they were selfport uh if they self-departed or were involuntary removed. What was the
total cost of engaging with and removing these people? Um, Senator, the um migration issues are covered in outcome two, not outcome one. Sure. >> But in order um to assist, perhaps we could take that on notice for you and provide that to you in writing um unless you would like to come back when the
relevant officials are here.
>> I'll come back in outcome too. Yeah, my apologies for that. And last one, hopefully this is the
right outcome. Um,
it's to do with the Ansco codes and the uh answers I got back to how many uh the different trades that I asked for. Is that this outcome or is it outcome two? >> Also, outcome two. >> I'll be back. Thank you very much, chair. >> So, you outcome two, Senator Whitten, Senator She. >> Thanks very much, Chair. Um just earlier I was asking questions about um
how the department will go about assessing and what standards they're going to be assessing people against and organizations against before they outlaw and criminalize organizations and criminalize the membership of organizations. Um,
one obvious question was, will there be
different standards for people's conduct in different states and territories Commonwealth as a result of that provision in the act and I think
it's 114 A3. person. >> Yeah. >> So, Senator Miss Hartigan will um take you through how the act functions. There is there are sort of two um
parameters. One is the minister's role and what uh constitutes a hate crime.
And then there is uh specific provisions around the states and territories. >> Thanks Senator. So we accept that there are differences between the state offenses that are listed in sub 114A.3 sub3. However, if you go back to sub two, it says that the hate crime is also conduct that involves publicly inciting hatred of another person because of the race or national or ethnic origin of the target or target group and that it satisfies the requirements of the state or territory offense. So, there is a high threshold that needs to be met which is the publicly inciting hatred of another person. Plus, there is also the reasonable person test in subb 3B. Well, I'm not arguing about there's those threshold tests, but then my question was, are there different tests and different thresholds for conduct that will be assessed depending on where you live in the country? For example, there's subsection 3 references no Northern Territory provisions. So, is there a a different standard in the Northern Territory than there is in Victoria? It seems evidently that's the case, but um I would like to hear clearly from you. >> Y >> it would depend on the facts of the the case, Senator. So, this isn't the only limb of definition of hate crime. So, for activities that occur in a territory, perhaps a Commonwealth
offense could apply. It would just depend on the circumstances of each case. It's true that we don't have full coverage in the state and territory offenses in sub three, but there are a range of other offenses that might cover the conduct that's in question. >> Are there other Commonwealth criminal provisions that apply different standards for
which state and territory you live in? Has this has this been tried before? I think >> to apply different standards across the country depending upon which state or territory you live in. >> I think that's clearly beyond the scope of this department. That's an clearly an attorney general's department question. >> So, so Miss Hartigan is trying to assist in this even though the element of the legislation you're asking her about is developed and administered by attorney general's department. Um but uh that's >> administered by the attorney. What role does the attorney general's department have in administering this? >> They are responsible for the legislation senator >> but its application the application of this will be assessed by the home affairs department and the home affairs minister won't >> yes >> which is what I'm asking you questions >> in the context of the prohibited uh listings but the legislation obviously covers a lot more than that. This section is about prohibited listings. >> Yes. >> And this is what I'm asking your questions about and home a it's home affairs job to interpret and apply this through the minister. Correct. >> Correct. >> Yes. So I'm asking you are there different standards in different parts of the country depending on which state or territory you live in. >> now the initial answer he got was well that's a matter for the attorney general. Given the minister is going to have to be judging people's conduct. I would have thought this department would
know the answer. So, Senator, we understood your question to be broader in the criminal code. Are there other instances where this occurs? Which is attorney general's department.
>> Um, are there briefing sheets? Are there um or are there other um materials that the department has developed to help guide this process when matters are brought to the attention of the the department? Senator, uh the process, we've set out the process here. The minister not just takes into account the occurrence of a hate crime, but also he needs that they're satisfied that the activities and continued engagement in the
activities would increase the risk of politically motivated violence or the promotion of communal violence. So the minister's threshold is different. it
predicates on there being an offense and that would be as general counsel has said dependent on the facts of each individual case um and the advice we get around that. Yeah. Well, that is interesting, but it doesn't address my question, which is whether or not there are fact sheets or guidance materials that the department has developed to try and make sense of incredibly complex
um legislative provisions that the minister may well be called on to
any guidance, any internal guidance, any
materials developed um to to seek to assist the department and decision makers? >> Senator, as you're aware, the legislation is very new. So, we're working through that process now
>> So, that means there aren't but you're working on some. >> Is that to read that answer? I think um
appropriately support officers to do their jobs and support the minister. Um and how that um is uh how that >> comes out um is an issue we're working through at the moment. Um, there have been allegations that people calling for a free Palestine on university campuses
members on the campus. um and repeated calls to ban protest and ban free Palestine movement on university campuses because amongst
other things it's alleged that it causes
is that the kind of psychological harm that would meet the threshold for a listing? Senator, the threshold for the listing is that the activities or continued engagement in the activities would or is likely to increase the risk of politically motivated violence. The harm >> which includes psychological harm. >> Miss Spencer, finish your answer. >> Sorry, two separate pieces. So that is the director general is satisfied that it would increase the risk of politically motivated violence. Um the second part is that the AFP minister must be satisfied that specifying the organization as a hate group is reasonably necessary to protect the community from a range of harms >> Now part of the threshold is these state laws. Multiple of the state laws have internal defenses in them. um which allow an individual who's been charged in that to articulate reasons why their defense should be made out. Um some of that goes to their knowledge, some of that goes to other matters. Given there's no obligation for procedural fairness, in fact, it's expressly excluded. How would the minister assess the relevance of a defense if you never asked the defendant? How will that work in practice? >> Uh Senator, um it would depend again on the facts of the case, but you would we would need to be showing to the minister whether or not the conduct would constitute an offense against a provision of a law of a state or territory, which would naturally also consider defenses that attach to that offense in the state or territory. But how can given 90% of the time defenses require the proactive production of evidence mental state from the defendant if you never ask the defendant how can the defenses work in practice? Um sorry Senator I've just been alerted to another provision actually in 114.3 sub4. So for the purposes of one of subsection one and again subp paragraphs 2 a I double I and 3 I if a defense
applies in relation to conduct that
conduct is not conduct that would constitute an offense.
>> Correct. >> So there is that express on the statute.
>> Correct. But in order to determine if a defense applies the criminal law asks the defendant to provide material to provide evidence state of mind. Your law expressly excludes any reference ever never know that this is happening. You you highlight the problem, not a solution. Miss Hartigan, rotate the call after this response. to what the thresholds are for establishing a hate crime. Um, which is whether or not the conduct was about publicly inciting hatred of another person because of their race or national group. And that would all in all of the circumstances cause a reasonable person who is a target or a member of the target group to be intimidated to fear harassment or violence or to fear for
their safety and that that's the threshold that we'd be looking at in this >> and it's also conduct and it's also conduct and it's also conduct the call. Thank you very much Senator Dian. >> Thank you chair. Uh just briefly back to the uh counterterror coordination center