Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 3803 together:

(1) Clause 2, page 2 (table item 1), omit "Sections 1 to 3", substitute "Sections 1 to 4".

(2) Page 2 (after line 12), after clause 3, insert:

4 Review of amendments made by Schedule 4

(1) The Senate Legal and Constitutional Affairs Legislation Committee, or such other committee constituted under a resolution of the Senate, must:

(a) begin an inquiry into the operation of the amendments made by Schedule 4 to this Act, and any other related matters, before the end of the period of 2 years beginning on the day the Schedule commences; and

(b) report the Committee's recommendations to the Senate as soon as practicable after completing the inquiry.

(2) Without limiting subsection (1), the inquiry must consider:

(a) the operational effect of restricting the execution of arrest warrants issued under the Extradition Act 1988 and the Crimes Act 1914 to certain hours, noting that search warrants issued under the Crimes Act 1914 and search and seizure warrants issued under the Extradition Act 1988 are not subject to the same restrictions; and

(b) any unintended consequences of the amendments.

I indicated in my second reading speech that I had one or two questions in relation to schedule 3 of the bill, which inserts a new section, section 31A, into the DPP Act 1983 to provide an ability for the Attorney-General to authorise a senior person to exercise all powers and functions ordinarily exercised by the CDPP director when the director is unable to exercise those powers and functions 'due to an actual, perceived or potential conflict of interest'. In relation to the CDPP, has this legislation—and this particular part of the legislation in particular—been created to address a specific conflict of interest?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I didn't get a chance to make a very long contribution yesterday, so I want to put on record my thanks to the Legal and Constitutional Affairs Committee for their report and engagement on this piece of legislation. Thank you also to those opposite for the constructive way we've approached this bill. Your questions go to the changes around the DPP and the conflict of interest, and I'll respond to those in a minute. I want to put on record the response in relation to the amendment that Senator Cash has moved. Just so it's clear for the chamber, I'll deal with that first and then I'll deal with the question around the DPP.

Firstly, in relation to the amendment, the government supports a post-implementation review of the amendments made by schedule 4 of the bill to arrest powers in the Extradition Act. The government will move an amendment clarifying the scope of this inquiry by only requiring it to consider amendments by schedule 4 of the bill. Our amendment is consistent with the recommendation of the opposition senators in additional comments to the Senate Legal and Constitutional Affairs Committee's report on the bill. The postimplementation review will complement ongoing oversight of these powers which occurs through established judicial, operational, legislative and accountability frameworks. Schedule 4 of the bill amends the Extradition Act to introduce powers enabling police to enter premises for the purpose of executing an arrest warrant. The powers would broadly align the extradition provisions with the comparable arrest warrants of the Crimes Act 1914. That's just to put on the record that, while we support the review, the government will be seeking to amend the opposition's amendment to reduce the scope of that inquiry to schedule 4 of the bill.

Regarding the DPP—I've just sought advice. This bill has not been drafted in response to a particular conflict. It is a response, I think, to ensuring that there's a workable solution going forward. Currently, where an actual, potential or perceived conflict of interest arises, the director must take leave of absence from their duties entirely to allow an acting director to be appointed to perform or exercise the functions of powers, and that request of leave must be approved by the Attorney-General. The measure that's in this bill—as you know very well, Senator Cash—creates a process where the functions or powers affected by the conflict of interest can be undertaken by a sufficiently senior person, and the director appropriately carries out performing duties or duties that are not so affected. It establishes a precedent where they don't have to take leave from their entire role or position, but those powers or duties or a particular proceeding that is affected by that conflict could be carried out by another senior member.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

If I could just make some comments in relation to the government's amendment on sheet TK115, the coalition's amendment that I have moved would specifically require the inquiry to examine the operational effect of restricting the execution of arrest warrants issued under the Extradition Act and the Crimes Act to certain hours, while search warrants issued under those acts are not subject to the same restrictions. The amendment on TK115 has now moved by the government removed that specific reference from the terms of reference we had proposed in our amendment. The coalition's preference is to retain the detail, but we do not think that its removal, pursuant to the amendment moved by the government on TK115, will limit the committee's ability to examine those issues, and on that basis we won't be opposing the government's amendment.

In relation to the answer that was given to my previous question, and the bill itself that has passed on the second reading, why is there now a pressing need to resolve conflict-of-interest issues with the director of the CDPP?

Dave Sharma (NSW, Liberal Party, Shadow Assistant Minister for Citizenship and Multicultural Affairs) | Link to this | Hansard source

Senator Green, you may also wish to move the amendment TK115.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

As foreshadowed, I move the government amendment on sheet TK115:

(1) Amendment (2), repeal subsection 4(2), substitute:

(2) Without limiting subsection (1), the inquiry must consider any unintended consequences of the amendments made by Schedule 4.

This is an amendment to the opposition's amendment. I also table the supplementary memorandum relating to the government amendment moved to this bill.

Senator Cash, you've used the language 'pressing need'; I don't think that's the language that the government would use to reflect the change. We think that this change streamlines the process of managing an actual perceived or potential conflict of interest that might be identified by the Director of Public Prosecutions. It certainly ensures that the Attorney-General can authorise a sufficiently senior person to perform the powers and functions ordinarily, and it ensures that that process that I spoke to you about is not currently required. At the moment, it is administratively burdensome and inefficient for the director of the CDPP, the Attorney-General and the Attorney-General's Department to be involved in that process. This measure creates a process whereby the functions or powers affected by the conflict of interest can be undertaken by a sufficiently senior person while the director appropriately carries out performing functions or duties that are so affected. That ensures that the CDPP can continue to operate as required by the parliament and its establishing legislation, and that where the Attorney-General makes an authorisation for those powers the conflict of interest is adequately managed. I think you would agree that, if there were a conflict of interest for the Director of Public Prosecutions, that should be managed in an appropriate way and that it would not be appropriate for the director to use their power of delegation to delegate the performance of the relevant function or exercise of the relevant power in circumstances where they've identified a conflict of interest. I wouldn't mirror the language that you've used of 'pressing need'. There are other provisions in this legislation that do have a more urgency for the government, but this is something that establishes a very good practice that we should be implementing as a parliament.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Is it not the case that the director of the CDPP worked as counsel assisting the special investigator to investigate war crimes, and that she is now in charge of prosecuting war crimes?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I don't have that information with me. I can certainly take it on notice and try to get back to you. That is not the reason that this provision has been included in this bill, but we will certainly endeavour to get as much information for you as possible.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

():  Does anybody who is advising you have the information as to whether or not it is the case that the director of the CDPP worked as counsel assisting the Special Investigator to investigate war crimes and that, in her position, she's now in charge of prosecuting the war crimes? I would have thought that that was some basic information—given the nature of the bill, including the nature of schedule 3, and the fact that this is about a conflict of interest which we are going to pursue—and that that information might be ready. Could I ask you just to check.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I did check, Senator Cash. I know that you were speaking while I was making some directions to the staff that are here. They don't necessarily have that information with them. They'll seek to find out. I'm sure that we can do that quickly. As I said, though, this is not about a particular conflict of interest. I understand the direction of your questions and your concern about that conflict or that particular proceeding, I won't go into that proceeding here in any detail, given that it is on foot and it's very important that any court proceedings of any kind are not dealt with in this chamber and that we are careful in the way that we speak about particular proceedings. But, on the matter of a conflict of interest, I will seek to find out for you any more information. Of course, the CDPP is subject to Senate estimates questions and other measures that you could employ to find out that information directly, but we'll seek to get it for you.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Well, the last time I checked, Senate estimates is not for a number of months, and we currently are being asked to vote on a bill, potentially today. So I would have thought that the questions were actually relevant.

The bill gives the impression when it's presented—and certainly in the way the government has spoken about it—of implementing technical amendments. But, since the bill was first introduced, Ben Roberts-Smith has been arrested, and the CDPP appears to have been involved in the investigation over the war crimes she is now charged with prosecuting. Was this legislation created in anticipation of this potential conflict?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

No.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Again I ask: is the potential conflict of interest in the case of the current CDPP the reason for the legislation?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

No, Senator Cash, that's not the case. I think this legislation covers a wide, varied area of criminal law in particular. There are a lot of changes that are being proposed. I wouldn't suggest that it's necessarily only technical matters. There have been a number of reviews that have led to some schedules in the legislation, and we are responding to that. Of course, as I've said, we'll seek to get some more information about your particular question.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Could you please point me to the evidence in the reviews that you referred to that specifically recommended the change that we are currently discussing in relation to schedule 3 of the bill and the insertion of new section 31A into the DPP Act.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator Cash, respectfully, that's not what I said, and perhaps you didn't understand what I was suggesting to you. My reference to reviews was not to the schedule that we are discussing, and I would appreciate it if you don't verbal my answers. I'm being very upfront and direct with you about the changes that we're making, and that is not what I was suggesting. What I said to you that was that this was not in response to a particular conflict, but I've endeavoured to get some information for you. I can confirm the director's employment history has been disclosed. The Attorney-General authorised the prosecution of offences involving this particular case and war crimes. Ms Sharp has previously disclosed her employment as counsel assisting the Office of the Special Investigator.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Okay. So I can just confirm, then, the CDPP was involved in the investigation of the war crimes she is now in charge of prosecuting—is that correct?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator Cash, as you would be fully aware, the AFP investigate a matter of this kind and then the Director of Public Prosecutions takes the lead on prosecuting the crime. That is the normal course of action. That is what is being undertaken in this matter. As I said, the director's employment history has been disclosed.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Sorry, I'm literally just trying to confirm something. The evidence that you have given is, 'Yes, the employment history has been disclosed.' Is it, therefore, the evidence that the director of the CDPP was involved in the investigation over the war crimes and she is now in charge of prosecuting? Because—you are right—that is a conflict of interest. So is it your evidence that, yes, she was involved in the investigation over the war crimes and she is now in charge of prosecuting? It's a very simple question!

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I think the distinction that I am seeking to make that you can argue about—I've made it clear that the AFP investigates these matters and has investigated this particular matter. I have also said to you I am trying to be very courteous to the courts and to any defendants in any particular criminal proceedings by not talking about particular cases, but there is a process where, if I could talk in general terms, the AFP is the investigating agency and then the CDPP prosecutes. I think you are referring to a separate investigation.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

What protocols are currently in place to ensure that the director of the CDPP is quarantined from any matters she was involved in in prior roles?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator Cash, I know that you are seeking really deliberate and direct information on this matter, and I don't want to mislead the committee. I would only have general information about the process that the CDPP undertakes, which is an internal process, if there is a conflict. I think whether there is a matter of conflict might be a debating point in here, but it's not the view of the government that there is a current conflict of interest.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

That wasn't my question, with all due respect. I asked a very simple question. This is a bill that is changing a piece of legislation to put in place, as I'll read again, a new section, section 31A, into the DPP Act—you've already read it out yourself in terms of what this does—to allow the Attorney-General to authorise a senior person to exercise all powers and functions ordinarily exercised by the CDPP director when the director is unable to exercise those powers and functions due to an actual, perceived or potential conflict. That's if the bill passes. I would like to understand what protocols are currently in place to ensure that the director of the CDPP is quarantined from any matters she was involved in. I'm not referring to a particular matter but any matter she was involved in in prior roles.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator Cash, I have answered your question. I know that you're seeking a more definitive answer, but that's the information I have in front of me. There would be internal processes in place if there was a conflict of interest that had been identified. The process which is currently in place would be implemented. After this bill passes, hopefully with the support of the Senate, there will be a new process. But it all, I guess, hinges on whether there is a conflict of interest. As I've said to you, the government's view is that there is no current conflict of interest.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

So is it your evidence, therefore, that at this present point in time there are no protocols in place? I'm not asking if there is a conflict of interest. One would assume that, given there is always the potential for a conflict of interest given who these people are and what they have previously done, there would be protocols in place. Are you saying that there are currently no protocols in place?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Thank you for checking, Senator Cash, because that was not my evidence. What I said to you is that there would be internal processes in place, but I cannot confirm today what those processes might be. We can seek to undertake to get you more information about what those processes might be, if there is any. But what I have said to you is that there is a possibility that there are internal processes in place, but you are referring to a conflict of interest. If there's a conflict of interest, there's a current process under the legislation which is undertaken. Hopefully, if this legislation is passed, there will be a new process, but that relates to where there is a conflict of interest.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Can you confirm that the current CDPP will be subject to this new legislation despite the Ben Roberts-Smith prosecution commencing before this legislation was passed?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

This legislation doesn't establish a process of dealing with a conflict of interest where there is none already. There is a current process for dealing with that. This legislation changes what that process would be. The Director of Public Prosecutions is subject to the current provisions and would be subject to the future provisions.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

I think I understand your evidence. There's a current process in place. You're unable to give me evidence, but, hopefully, you've undertaken to take that on notice in terms of internal protocols. So, despite the Ben Roberts-Smith prosecution commencing before this legislation passes the parliament, the current CDPP is still going to be subject to the new process in the event that a conflict arises.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Correct.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

I have a couple of questions of clarification. I think Senator Cash asked you questions about actual conflicts of interest. Of course, the requirement is 'perceived or potential' conflicts of interest. I am double-checking whether your responses would for that broader class would be the same or different.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Yes, thank you for explaining that to me. I understand that conflict of interest relates to 'perceived and potential', and my answers would not have changed if that definition were in my mind. I'm referring to all of the range of conflict of interest.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

Well, they're different because they actually raise different subject matters—actual rather than potential and potential rather than perceived. Many people might recognise that there's a perceived conflict of interest even if they don't recognise there as an actual one. Let me see if I can think of any random individual who might adopt that approach. Major General Brereton would be a case in point.

My second question is just a matter of clarification. It's my party's assumption that these amendments to schedule 3 only operate prospectively, not retrospectively. Therefore, if there had been any defect to date, it wouldn't be cured by this. But can we just be clear?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I think the provisions will apply prospectively. There is a—

Senator Cash, thank you for the eye roll, but what I was saying what I was saying in my previous answer was that there are current provisions in place to deal with conflict of interest. They apply now and they would apply to a current perceived or potential conflict of interest. These provisions will apply prospectively. On the reading of the provisions that I have, this changes the administrative approach to how a conflict of interest would be dealt with, not if or when a conflict of interest can be managed. I know that there would be a lot of interest in how that might apply to the particular proceeding that Senator Cash is concerned with. The advice that I've been given is that, if a conflict arises in relation to a future proceeding—because I don't want to talk about particular proceedings—even if that proceeding was on foot before these provisions commenced, the new provisions would apply.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

I understand that. So this is an amended administrative arrangement. This arrangement only applies prospectively, but of course it could apply to conduct or activity that had happened before, and it could be applied to proceedings that had been commenced before—which is, I understand, the position. But these arrangements, even though they almost inevitably will apply to conduct that happened before, will only operate prospectively, and they're not designed to cure any previous defect or address any previous defect. Is that correct, Minister?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

That's correct. I gave that evidence earlier. I'm not sure if you were in the chamber, but these provisions—

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

I was.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I apologise. The provisions are not intended to cure a particular defect. They've been proposed as a new way of efficiently dealing with a situation where a conflict of interest would require a leave of absence to be considered by the Attorney-General.

Slade Brockman (WA, Deputy-President) | Link to this | Hansard source

And, Senator Shoebridge, if you could refrain from standing up well before the minister is finished, that would be appreciated.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

We've got to get our steps up somehow!

Slade Brockman (WA, Deputy-President) | Link to this | Hansard source

I'm not sure that qualifies, Senator Shoebridge!

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

I know this discussion has been somewhat oblique to the amendment that's currently before the Senate, but I indicate that the Greens will be supporting the government's amendment to the opposition's proposed amendment, and the Greens will be supporting the amended amendment—assuming we get to that point—in relation to the Senate committee review of extradition. I just want to be clear.

I note one of the concerns in the opposition's amendment was that there is a restriction on the time within which arrest warrants or search warrants can be issued. We're talking about extradition proceedings. Extradition proceedings almost always—in fact, I think, pretty much on every occasion—involve the person who is the subject of an extradition proceeding having a lot of prior notice of it because proceedings have commenced in another country and those proceedings have then been communicated to Australia. On almost every occasion that I'm aware of, when extradition proceedings happen, the person who is the subject of them in this country has a substantial amount of prior notice of it.

So this isn't a case of needing arrest warrants where you come sneaking in at night or they're happening outside of business hours. I note the concerns of the opposition. But I think the reality is that having these warrants executed during fairly standard hours should in no way limit their capacity to be effective, but we don't mind them being reviewed. And the idea of reviewing them for any unintended consequences is something we actually support.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Could I confirm, just for the Hansard record, that the government is categorically denying that this legislation is there to address a potential conflict of interest for the current CDPP and her previous roles?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Thank you, Senator Cash, and thank you for checking and allowing me to put it on the Hansard. No, that's not the case. This legislation is not motivated by a particular proceeding.

Slade Brockman (WA, Deputy-President) | Link to this | Hansard source

Senator Cash, you've only got 13 seconds.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

How many times has this issue arisen in the past five years?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I'll have to take that on notice for you, Senator, but I will get back to you.

Progress reported.

Slade Brockman (WA, Deputy-President) | Link to this | Hansard source

It being 12.15, we shall now proceed to senators' statements.