In progressing work in Output 1.4, the Attorney-General’s Department promoted Australian interests through providing advice on international law and implementation of international law in Australian domestic law. We provided advice on a broad range of international law issues and represented Australia in negotiations on treaties and other legal instruments. The advice we provided during the year contributed not only to achieving the desired outcomes for the Department but also those of other departments.
General international law and advisings
The Department has provided advice to advance Government initiatives that have an international law element. We have advised the Government on:
- Australia’s military deployments to Afghanistan, Iraq, the Solomon Islands and Timor-Leste, on issues such as rules of engagement, status of forces, immunities and other operational issues
- climate change, including advice on the United Nations Framework Convention on Climate Change
- offshore issues, including those concerning fisheries and petroleum
- foreign state immunities, including managing the Attorney-General’s intervention in a number of cases before the New South Wales Supreme Court
- maritime security, including people smuggling
- air services agreements
- outer space
- import risk analyses, and
- H1N1 swine influenza.
The Department also participated in a range of international negotiations relating to defining the crime of aggression by the International Criminal Court (ICC) Assembly of State Parties; protocols containing new aviation anti-terrorism offences, including offences relating to transporting nuclear material, within the International Civil Aviation Organization; and several regional fisheries and management organisation agreements.
International trade law
The Department continued to work closely with the Department of Foreign Affairs and Trade in negotiating free trade agreements, including with the Association of Southeast Asian Nations (ASEAN), the Gulf Cooperation Council, China, Japan, Malaysia and Korea, and an investment protocol with New Zealand. The Department’s input focused on copyright law, e-commerce and legal services, investment, dispute resolution and general framework issues.
We continued to work closely with other agencies in conducting World Trade Organization litigation. Two counsel from the Department participated in World Trade Organization Dispute Panel hearings in September 2008 and commencing in late June 2009 defending the case New Zealand brought against Australia over import of apples.
The Department also provided input into Australia’s submission in those World Trade Organization cases in which Australia is a third party, including:
- European Communities—Tariff Treatment of Certain Information Technology Products
- India—Additional Duties on Imports from the United States (Appeal), and
- United States/Canada—Continued Suspension of Obligations in the European Communities—Hormones Dispute (Appeal).
The Department leads the Australian delegation to the United Nations Commission on International Trade Law (UNCITRAL). An officer from the Department was a elected Vice-Chairperson of the Commission in June 2009. We also participated in Commission negotiations for instruments on the carriage of goods by sea and new arbitration rules.
The Department was responsible for a review of the International Arbitration Act 1974 (Cwth) announced by the Attorney-General in November 2008.
The Trade Measures Review Officer reviewed anti-dumping decisions concerning tubeless steel demountable rims imported from China, toilet paper imported from China and Indonesia, and processed dried currents imported from Greece.
The Department continued to participate in, and provide legal advice on the Proliferation Security Initiative, including by attending meetings of operational experts and participating in outreach activities—for example, a Proliferation Security Initiative Exercise in Auckland in mid-September 2008 and a Proliferation Security Initiative Operational Experts Group meeting in Paris in late-September 2008. In addition, the Department attended a meeting in May 2009 in Copenhagen of the Working Group on Legal Issues, a subgroup of the International Contact Group on Piracy off the Coast of Somalia.
The Department coordinated and participated in Australia’s appearance before the United Nations Human Rights Committee in March 2009 for consideration of Australia’s fifth periodic report under the International Covenant on Civil and Political Rights. The Committee issued its Concluding Observations on 3 April 2009 welcoming a number of matters, including the national human rights consultation, the Parliamentary apology to Indigenous peoples and establishment of the National Council to Reduce Violence against Women and their Children in 2008. It also made recommendations in a number of areas, including Indigenous issues, violence against women, juvenile detention, access to justice, and human rights education.
Australia’s fourth report under the Convention on the Rights of the Child and its first reports under the two Optional Protocols to that Convention were lodged with the United Nations on 25 June 2009.
During 2008–09, Australia received two new individual communications under the International Covenant on Civil and Political Rights, one under the Convention against Torture and one from United Nations Special Procedures. No views were received from the Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights. In one case, the Committee established under the Convention on the Elimination of All Forms of Racial Discrimination discontinued the complaint. In one case, the Committee Against Torture decided that no violation had been committed.
International law matters will continue to occupy the Department. Possible legislative work will include amendments to the International Arbitration Act 1974, and the Foreign States Immunities Act 1985, as well as development of legislation to ban the death penalty, to introduce a Commonwealth torture offence, and to implement Australia’s obligations under the Convention on Cluster Munitions.
As well, it is intended that the outer limit of the Australian continental shelf be proclaimed in line with the Commission on the Limits of the Continental Shelf recommendations. Work will continue on possible acceptance of Optional Protocols to the Disability Convention; the International Covenant on Economic, Social and Cultural Rights; and the Convention Against Torture.
It is also likely that the Department will provide further and ongoing advice and assistance on Australia’s deployments overseas, continue negotiating free trade agreements and international litigation, and maintain defence of the World Trade Organization case brought by New Zealand against Australia.
Table 7: Performance indicators, Output 1.4—International law
Provision of international legal services and policy advice in agreed timeframes
A high proportion of services and advice provided in agreed timeframes
Most of our legal services and advice was provided in the timeframes originally agreed with the client. Where, due to changing priorities, it was not possible to meet the original agreed timeframe, a new timeframe was agreed and met. An example of feedback relevant to this performance indicator included: ‘The speed and comprehensiveness of your advice was much appreciated and provided a valuable contribution to Australia’s response to the issues raised in the recent review of Australia’s inventory by the United Nations Framework Convention on Climate Change.’
Acceptance and implementation of legal and policy advice by ministers and agencies
A high level of acceptance and implementation as measured by periodic assessment and feedback
Feedback throughout the year indicates that ministers and agencies appreciated the advice provided. An example of such feedback included: ‘As you know, the legal advice shaped, in a critical way, the Australian Government’s final position.’
Successful pursuit of Australia’s interests through international negotiation and representation
Input receives support from other countries; successful outcomes are achieved through negotiation and representation
All feedback received during the year attests to the meeting of this target, for example: ‘I wanted to drop you a brief note about our recent close engagement with your team in preparation for, and participation at, two of our biggest fisheries-related commitments. The people in your team were major contributors to the recent success we had in these two forums. They more than pull their weight and provided trusted advice’.
[From New Zealand]—‘I thought I should pass on to you my appreciation for the very fine work undertaken at last week’s negotiations. It was an impressive effort and we were very grateful for it.’
Australian Forces in Iraq
Bill Campbell QC, Office of International Law.
A sound legal basis to underpin the presence of Australian forces
The Department plays a primary role in providing advice to Government on international law, including on the legal authority for Australian Defence Forces to operate overseas.
The legal authority for Australian presence in Iraq under United Nations Security Council auspices, was due to expire on 31 December 2008. Knowing an alternative legal basis for Australian forces in Iraq was needed, a team, led by the Department of Defence, was formed and travelled to Iraq in late 2008 to negotiate with the Iraqi Government.
The negotiating team included lawyers from the Department of Defence, the Department of Foreign Affairs and Trade, and the Attorney-General’s Department. Bill Campbell QC, First Assistant Secretary, Office of International Law, was a principal lawyer in the negotiations.
Despite the challenging environment, successful negotiations concluded on 30 December 2008 in Iraq, providing a sound legal basis upon which to underpin the presence of Australian forces in Iraq.
‘It wasn’t an easy task due to general security concerns in Iraq and difficulties gaining enough time to negotiate the issues with the Iraqi Government,’ Bill explained.
‘We had to use the limited legal resources available in Iraq and all travel was by secure transport, such as Blackhawk helicopters, light armoured vehicles or reinforced commercial vehicles. And we had to gain the Iraqi Government’s attention to ensure the legal basis could be established before the end of 2008. This was a challenge as a number of other countries were intent on achieving the same outcome for themselves.’
‘It was one of those trips where you’d probably rather be at home, given the time of year. However, in hindsight, it was a valuable experience, both personally and professionally. It confirms that this Department can operate overseas in difficult circumstances and still produce the goods,’ Bill added.