Senate Legal and Constitutional Affairs Legislation Committee [Part 2], , 2:30:54 to 2:49:23
The final session covers protection visa review fees and potential conflicts of interest within the Office of the Special Investigator.
Topics: Protection visas, Integrity
Speakers: Senator The Hon Michaelia Cash, Senator David Shoebridge, Speaker 15, Raelene Sharp, Senator Jana Stewart, Senator Nita Green, Speaker 13
resume. Senator Cash, you've got the
call. >> And thank you, Mr. Hawkins. I will put a lot of notice for you just in relation statistics. Can I just go though to protection visa reviews just to clarify the position in relation to payment. Is it correct that a person refused a protection visa by home affairs can apply to the art for merits review without paying a single dollar upfront?
>> I understand that to be the case at
>> had a chief lawyer. Yes, that's correct Senator.
>> Uh thank you very much. And if the art sets aside the decision and sends it back to home affairs, is it correct that the applicant generally would not pay a fee for that
>> So they will be entitled to a refund.
>> Uh it's a refund. >> Oh, sorry. I shouldn't use that term. >> Yes. Hold on. Yep.
>> Sorry. That they Yeah, they don't have to pay the fee.
>> They don't pay. Correct. Yeah, that's fine. Um, if the art upholds the original refusal, the applicant is ordinarily charged, I understand, $2,293.
>> Uh, Senator Sean, I'm sorry. I'm not sure of the amount.
>> No, no, that's fine. I I'll get you to take that. Yeah. Can I ask how many unsuccessful protection visa applicants actually pay that fee?
We'd have to take that on notice, Senator, but I would uh venture that there aren't many because they go home uh don't pay the fee and the penalty of course is that they can't return to the country with an outstanding debt to the
common. >> Um so the 20242 financial statements recorded 17.494 million in expected credit losses associated with protection visa review fees. What does that actually mean? What is a the credit loss associated with them?
>> Might check with our CFO on that.
>> Dobby Timokovski. See you.
>> Thank you very much.
>> Okay. Uh, in regards to your question, that would be a um [clears throat] an impairment loss and that's sort of like a bad debt.
>> Uh, it's just a bad debt. So, what they were charged the fee but didn't pay the fee. >> How much of the protection visa review fees invoiced in 2025 26 has actually been collected and how much remains
>> Uh, I'd hope to take that on notice. in terms of the specifics but the percentage is around 20%.
>> Collected and just in terms of the art's time in a dollar figure what is the average cost of conducting a protection visa merits review.
>> I take that on notice.
>> You take it. Okay. Absolutely. And can I also then get you to then also and after deducting fees recovered, what is the net cost to the Australian taxpayer?
>> We'll take that on notice for you.
>> Uh thank you very much. Uh as at the 31st of July 2026, you had 133,745 outstanding matters. Is there an updated figure on that, Mr. Hawkins, as at 26
October? I could give you to the 30th of September.
>> Fantastic.
>> And it is 136,236.
>> Yeah. So it sadly and this they're just more and more replying and you're obviously just not able to hence why the art bill coming up is something that does obviously need um support um that might hopefully assist you in some What I might do, chair, is these are all statistical. I'm happy to go to Senator Shoebridge if you had questions here as well.
>> Thank you, Senator Cash. Senator She
>> uh thanks very much. Um and good to see you, Mr. Hawkins.
>> Congratulations to you, Senator, on your ascension to the leadership of your party.
>> Uh thank you very much. I appreciate it. Now the um despite having more finalizations than ever um and and I think you a quote from from you is um uh demand for our services grew faster than our capacity to finalize matters reaching the highest level to date. I think I think that might be a quote from the annual report or um the tribunals's cases on hand have increased from the last numbers I had was 112,591 um at the start of the reporting period for the last financial year to 133,749 as at the end of the financial
>> that's the end of financial year correct. to Senator Cash 136,236
>> um and what has what has driven that case load?
>> Uh lodgements. >> Our finalizations are 109% of our target.
>> Yep. What is your target?
>> Uh 74,000
and some. And what how many lodgements did you have last year?
>> Lodgements last year were 87,000.
those numbers aren't matching.
>> No, they're not. I think as we explained before, we do have a funding model by which we are um appropriated. Um the funding model has a cap on it of yeah >> our business as usual funding of 345 FTE of members. So uh when our lodgements for the previous 12 months which is not necessarily a calendar year or a financial year it is the 12 months of most recent data is provided. A calculation is then made of the number of finalizations we should be able to achieve given the spread of cases and case types >> against that cap of 345.
>> All right. Can I just focus on two case flows that that you have or case loads I suppose might be the first is in relation to NDIS. It appears that lodgements with the tribunal contesting an NDIS decision have grown by about 130% from 23 24
>> over the past two years. Yeah.
>> Yep. And about 70% of applications for lodge for review ended up having the decision changed in some way. Is that right?
>> Yes.
>> Um what's going wrong that is seeing so many NDIS matters coming before you? What's the explanation for so many successful applications?
>> Um 90% or more of the NDIS case load are resolved by registars doing alternate dispute resolution. >> So there is a very high proportion of consent decisions that are reached with the NDIA.
Um, and have you spoken with the NDIA about um um their ability to do that before it comes to you with all the costs and um delay in bringing a separate agency in?
>> It's obviously a matter for them, Senator. Um but I would expect that in any matter of a latigious nature where a settlement is reached, consideration is given to the greater cost of of
>> Yeah. But but you you're having no ongoing discussion with the NDIS?
>> Not at all. >> I'm having a lot of ongoing discussions with them about their future case load. Yes,
>> indeed. Indeed. Um and have you got any expectations about what those changes will mean to your future case load?
>> No, we just don't have the detail.
>> All right. Minister, would you could you take on notice whether or not there's been any communications between the attorney and the minister responsible for the NDIS about this? I think it's appropriate to call it a surge, the 130% increase in lodgements um in relation to the NDIS over the last two years and whether or not any efforts have been made at the NDIS end to stop feeding these matters into the art.
>> Yeah. Well, I'll take that on notice for you, Senator.
>> And if so, what the outcomes are. Mr. Hawkins, the other case load is the student visa case load. Um, um, legislation's been um passed in relation to that. I think passed or is in the process of being passed.
which part, Senator? We've got the decisions on the papers legislation passed which came into effect on the 1st of June.
>> Yes. Tell me what's happened in relation to that. What's happened in terms of reg um directions given to registars andor
>> All right, let me just get some so we're scaling up our capacity for members to be able to do these matters on the papers, which requires, as you probably aware, a service of a notice, a 367F notice on applicants to um, basically put their best case forward. Now, we have approximately 7,000 of those invitations have been sent to applicants since the 1st of June. And I must stress that it's taken us that month of June to gear up. So from the 1st of July, we've really hit our straps with a great number of those notices being issued. Um a life of a notice could have 11 weeks. Um by the time you go from a notice allowing 28 days for a response, then looking at the response uh indeed is there a response in which case it'll go straight to a registar for dismissal. If there is a response, there might be a further direction or order issued and then a response to that and then that'll go to a member. So that could take 11 weeks. So we're right in that sweet spot at the moment of allocating those types of matters to registars and members.
>> So some 7,000 367F notices did you say
>> have been issued? Yes.
>> Can you provide to this committee the standard 367F notice that is that is
>> of what it looks like. I can do that. Sure. Sure.
>> Um and can you provide I just given the time and I know there's a series of other agencies. Can you provide um um as much granular detail as you can about the the number of notices that have been issued, the number of matters that have been um determined on the papers, the number of matters that have been dismissed, and the number of um matters where there's been a contest and it's been determined not to deal with on the papers.
>> Sure. I can tell you that 866 matters have been finalized on the papers to date. Members have disposed of 533 of those matters. registars 333
>> and how many of those were dismissed?
>> Uh I'm expecting that 333 were by the registars would have been dismissed
>> and of the other
>> but I will give you specific details uh in relation to the members. No, I'd have to give you uh >> more granulated detail.
>> Can you provide to the committee whatever directions and or guidelines and or training has been given to registars for the purpose of that work? I assume there has been some
>> training much training.
>> And is there are there guidelines?
>> Um, no. I'd have to take that on notice.
>> All right. Thank you, Mr. Orbits.
>> Thank you, Senator Shoebridge. That concludes the questions that we have for you this evening. I did suggest it was going to be a bit of estimate speed dating. Uh, I also would like to update that we are in a position to release OSI as well. Apologies for hanging around so late in the evening that we are only releasing you now. Uh but uh thank you very much to the art. I now invite our next witnesses to the table, the Office of the Commonwealth Director of Public Prosecutions for the very last couple of minutes we've got in the evening. Uh at which point uh once they're at the table, I will go to Senator Cash for Senator Cash.
>> Uh thank you, director. Uh if I could just turn to the issue of conflict of interest, which I see you've also just provided us with uh a statement, a supplementary opening statement. Is that correct?
>> U Thank you, Senator. I have provided uh an outline the full opening statement, but if I could just um please read four short paragraphs of that statement.
>> I'm sorry. Apologies. Yes, I should have gone to you for the quick opening statement. Apologies.
>> Thank you, chair. Um ju just four short paragraphs. Uh and I would commend the rest of their statement to the committee. >> Appreciate it. Uh recognizing that some matters that we prosecute are of significant public interest, the CDP maintains web pages about a number of cases and we are conscious that prosecutions are rightly the subject of public discussion. However, public commentary around ongoing proceedings must must be approached carefully. It is not only direct interference that undermines trust in our system and we all but we all have to guard against conduct that might create a perception that the independence of my office has been impacted or compromised or conduct that may impact ongoing proceedings. To that end, we have now also provided some general guidance on our website about publications and statements that may pose a risk to the administration of justice in the form of ongoing proceedings. Thank you, Chair.
>> Thank you very much and apologies I've missed that at the beginning. Senator Cash, you've got the call.
the government told the Senate on the 13th of August that, and I quote, the director has considered her position and sees no conflict in relation to the Ben Robert Smith prosecution. Is that an accurate statement of your position, Miss Sharp?
>> Thank you, Senator. Yes, that is.
>> Thank you. >> Um, yes. Uh, does that conclusion cover an actual conflict, a potential conflict, and a perceived conflict of interest? >> Yes, Senator. Thank you. Uh, when did you first formally consider whether you had an actual potential or perceived conflict of interest in relation to the prosecution of Mr. Robert Smith?
>> Uh, Senator, I was appointed in December of 2023. In March of 2024, before I made any decisions in any war crimes matters, uh my former role as council assisting the office of special investigator was a subject of formal consideration within the CDP and the conflict and the discussion of well consideration of the conflict was um undertaken at that time.
>> Okay. So that was before you received a brief from the AFP or the OSI. um you wrote to the department seeking consent on the 30th of March. The department's brief reached the attorney's general's office on the 1st of April and that's all been provided via um answers to questions on notice. And the consent then was given on the 1st of April. I understand my understanding is that the consent to prosecute Oliver Schulz took 6 days. The Syrian returnees 25 days. This was not yourself, but the Clarion Witness Kases actually took 2 years and 8 months. Again, in relation to the Ben Roberts Smith prosecution, why was this one turned around so quickly? Did you ask for urgency in this
>> Uh, Senator, there was some urgency in the matter. Yes.
>> Okay. What was the nature of the urgency?
>> That was an operational matter.
>> Okay. Was the arrest already scheduled?
>> I I don't know, Senator. That was an operational matter for the AFP and the OSI.
Can I just ask what date did you commence with the office of the special investigator?
>> I'm not sure of the original date,
Senator. Um, you can take it on notice. That's fine. And on what date did you finish?
>> Uh, I concluded all of my briefs. It was not the only brief I had when I was at the bar before I was appointed. I was appointed as the director on the 4th of December 2023. So, it would have been uh probably in the October or the November of 2023.
>> Okay. Um, but you did you were special c you were counsel assisting the office of the special investigator in relation to the inquiry into alleged war crimes in
Afghanistan. Uh, that that's correct. My role was as an independent council, one of two independent council briefed to provide advice to the special investigator on discreet um individual questions of law and ad hoc matters.
>> Just indicating we are at the hard marker. If you've got a final question, quick one before we finish up. That be
>> uh Did you provide advice on the legal framework for war crimes charges under division 268 of the criminal code >> when you were special counsel?
>> Any advice I provided to the special investigator is a subject of privilege held by the special investigator.
rest are going on notice.
>> Thank you, sir.
>> Excellent. Thank you so much. And apologies that you've hung around all day to get a couple of minutes at the end of the day, but thank you very much for your patience. really appreciate it. Uh and also the questions on notice that you will uh respond to. Uh so thank you very much. That concludes the proceedings for today. I thank all the witnesses throughout today. Uh all the work that uh secretary and Hansard do to make the smooth running of the day. Uh I declare today today a