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External scrutiny

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Judicial decisions

Calvista Australia Pty Ltd v Administrative Appeals Tribunal [2013]
216 FCR 32

The Federal Court upheld an appeal to review the decision of the Administrative Appeals Tribunal (AAT) which affirmed the decision of the former Director of the Classification Board to decline a request to issue a permit to import objectionable goods, specifically, films which may deal with matters of sex or violence. The applicant, a wholesale distributor of adult films, requested permission to import films on a commercial scale for an unspecified quantity of goods and for an indefinite period of time. The court ordered that the matter be remitted to the AAT. The applicant subsequently withdrew its application from the AAT.

Commonwealth of Australia v Australian Capital Territory [2013] HCA 55

The Full Court of the High Court of Australia handed down its decision in this case on 12 December 2013. The case concerned the constitutional validity of the ACT Marriage Equality (Same Sex) Act 2013.

The Commonwealth initiated proceedings in the original jurisdiction of the High Court and challenged the constitutional validity of the Marriage Equality (Same Sex) Act. In a unanimous judgment the Full Court of the High Court found in the Commonwealth's favour. The court held that the Australian Parliament has power under the Australian Constitution to legislate with respect to same-sex marriage and that, under the Constitution and federal law as it now stands, whether same-sex marriage should be provided for by law is a matter for the Australian Parliament.

The court found that the Marriage Act 1961 (Commonwealth) deals exhaustively with the status of marriage in Australia and therefore the Marriage Equality (Same Sex) Act was incapable of operating concurrently with it.

Commonwealth Minister for Justice v Adamas [2013] HCA 59

In December 2013, the High Court of Australia handed down its decision in this case. Mr Adamas ('Kiki Ariawan') was the subject of a determination by the Minister for Justice that he be surrendered to Indonesia to serve a life sentence following his conviction in absentia for corruption. Mr Adamas sought judicial review of this determination, and was successful before the Federal Court and Full Federal Court of Australia. The minister was granted special leave to appeal to the High Court. The key issue before the High Court was the interpretation of a discretionary ground to refuse surrender in Australia's bilateral extradition treaty with Indonesia; namely whether Mr Adamas' surrender to Indonesia would be unjust, oppressive or incompatible with humanitarian considerations. The High Court unanimously upheld the minister's appeal. The court upheld the minister's submission that, in the context of international extradition, it was open and appropriate for the minister to consider the legal standards in both Australia and Indonesia, along with relevant international standards, when making an assessment as to whether Mr Adamas' surrender would be unjust, oppressive or incompatible with humanitarian considerations.

Congoo (on behalf of the Bar-Barrum People #No 4) v State of Queensland [2014] FCAFC 9

This matter concerned the extinguishing effect of Military Orders made by the Commonwealth during the Second World War. The State of Queensland contended that the Military Orders extinguished native title. The Commonwealth Attorney-General intervened and submitted that there was no extinguishment and that the Military Orders were only intended to regulate rights for the period of the war. On 21 February 2014, a majority of the Full Court found in favour of the Commonwealth. On 21 March 2014, the State of Queensland filed an application for special leave to appeal to the High Court. At the time of writing, the court had not yet indicated when the special leave application will be heard.

Kane v Kane [2013] Fam-CAFC 205

The Full Court of the Family Court of Australia delivered its judgment in Kane v Kane on 18 December 2013. This case concerned the issue of 'special contributions' in property matters under the Family Law Act 1975.

The parties were seeking the alteration of property interests following the breakdown of their marriage of 30 years. The husband argued that he should be given an adjustment of the superannuation assets based on his investment ability. This is because in 2008, after extensive research and despite his wife's objection, the husband invested a large proportion of his superannuation funds in a company which made a significant return. At trial, the property pool was divided 63.55 per cent to 36.45 per cent in the husband's favour in light of the husband's skill in making this investment.

On appeal, the Full Court concluded the decision of the trial judge was wrongly influenced by the assessment of the husband's contribution to the superannuation fund as a result of his investment and therefore was not just and equitable. The Full Court was critical of the concept of 'special contributions', as neither the Family Law Act nor relevant case law mandate this consideration in property matters.

Li v Zhou [2014] NSWCA 176

Li v Zhou, an appeal brought by a Falun Gong practitioner who alleged torture by Chinese Government officials, was dismissed by the Supreme Court of NSW, Court of Appeal, on 5 June 2014. The Attorney-General was the second respondent—and the active respondent on appeal. The appeal related to the effect of Article 14 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the applicant contended provided for universal civil jurisdiction, and thus an agreement to submit to the jurisdiction of the Australian courts for the purposes of the Foreign States Immunities Act 1985 (FSI Act). In reply, the Commonwealth argued that a state does not implicitly waive its immunity by signing a treaty, unless there is convincing evidence that the treaty is intended to waive that immunity. The appeal was dismissed on the basis that the Chinese officials enjoyed state immunity under the Foreign States Immunities Act.

Magaming v R [2013] HCA 40

On 11 October 2013, the High Court of Australia handed down its ruling in Magaming v R, finding in favour of the Commonwealth and dismissing Mr Magaming's appeal. The appellant claimed section 233C of the Migration Act 1958 is invalid because it involves a usurpation of judicial power by the Commonwealth, and/or is inconsistent with Chapter III of the Constitution. The offence at section 233C is an aggravated offence of organising or facilitating the bringing or coming of five or more non-citizens to Australia without visas and attracts a mandatory minimum penalty.

In its judgment summary, the High Court confirmed that the mandatory minimum penalties attached to section 233C are constitutionally valid. The High Court found that although prosecuting authorities had a choice as to which offence to charge, that choice was not an exercise of judicial power, even where one available offence prescribed a mandatory minimum sentence. The High Court also held that the imposition of a mandatory minimum sentence was not inconsistent with the institutional integrity of the courts and did not involve the imposition of an arbitrary sentence.

Philip Morris Asia Limited v Commonwealth of Australia

The department has conduct of the investor-state dispute brought by Philip Morris Asia, challenging the plain packaging of tobacco products under the Tobacco Plain Packaging Act 2011 and related legislation. On 20–21 February 2014, a hearing on whether to bifurcate the proceedings (that is, separate the proceedings into two phases: a preliminary jurisdictional phase, and a subsequent merits phase) was held in Toronto, Canada. Australia argued in favour of bifurcation, to allow its three preliminary objections to be heard prior to any argument on the merits. On 14 April 2014, the Tribunal handed down its decision, finding in favour of the bifurcation of two of Australia's three preliminary objections. This means that the Tribunal will separately hear those preliminary objections, before any hearing of the merits of the case.

Timor-Leste v Australia (Certain Documents Case)

On 17 December 2013, Timor-Leste filed an application instituting proceedings against Australia in the International Court of Justice, regarding the removal of documents and other materials from private premises in Australia on 3 December 2013. At the same time, Timor-Leste filed a request for provisional measures in respect of those materials. Following a hearing in The Hague in January 2014, the court handed down its order on provisional measures on 3 March 2014. The court ordered that:

  • Australia shall ensure that the content of the seized material is not in any way, or at any time used by any person or persons to the disadvantage of Timor-Leste until the present case has been concluded.
  • Australia shall keep under seal the documents and electronic data and any copies thereof until further decision of the court.
  • Australia shall not interfere in any way with communications between Timor-Leste and its legal advisers in connection with the pending arbitration under the Timor Sea Treaty between Timor-Leste and Australia, with any future bilateral negotiations concerning maritime boundary delimitation, or with any other related procedure between the two states, including the present case before the court.

The provisional measures order is binding on both Australia and Timor-Leste, as a matter of international law, until the court issues its final judgment in the case. Oral proceedings are scheduled to take place in late 2014.

Wallace v Stelzer and Anor [2013] FamCAFC 199

The Full Court of the Family Court of Australia handed down its decision in Wallace v Stelzer on 11 December 2013. This case concerned the effectiveness of the provisions in the Family Law Act 1975 regarding binding financial agreements, particularly the validity of retrospective amendments made to these provisions in 2009.

The Commonwealth was the second respondent in this case and submissions were made by the Commonwealth on the operation and constitutional validity of the retrospective amendments. The decision of the Full Court was made in favour of the Commonwealth. The decision means that the binding financial agreement provisions of the Family Law Act are valid. The binding financial agreement which the applicant had entered into with his former wife, and was attempting to have ruled invalid, was held to be a valid 'financial agreement'.

An application was filed in the High Court by the applicant on 24 December 2013 seeking special leave to appeal the decision of the Full Court. The High Court refused the special leave request on 20 June 2014, upholding the decision of the Full Court.

Whaling in the Antarctic (Australia v Japan: New Zealand intervening)

The International Court of Justice's recent decision in the case Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) in favour of Australia represents a landmark decision in international environmental law. Not only was it the first time that obligations arising from a multilateral environmental agreement were judicially enforced, but it also saw the court grapple with novel issues dealing with the enforcement of multilateral obligations, the interaction of complex matters of law and science, and the manner in which expert evidence was presented.

Challenges by federal offenders

In accordance with the Administrative Decisions (Judicial Review) Act 1977, five federal offenders challenged decisions made by the Attorney-General or his delegate in the reporting period. All decisions were upheld in favour of the Commonwealth in the Federal Court of Australia.

Review of AusCheck decisions

Four applicants applied for a review of decisions made by AusCheck under section 29(1) of the Administrative Appeals Tribunal Act 1975 during the reporting period. All appeals were dismissed by the Administrative Appeals Tribunal.

Reports by parliamentary committees

Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity

Inquiry into the jurisdiction of the Australian Commission for Law Enforcement Integrity

On 6 March 2014, the committee commenced an inquiry into the jurisdiction of the Australian Commission for Law Enforcement Integrity (ACLEI). The inquiry will look into the adequacy of ACLEI's current jurisdiction, the desirability and feasibility of extending ACLEI's jurisdiction to include other agencies (including the department), whether an activity-based approach to ACLEI's jurisdiction would be preferable to the current approach, and the most appropriate method of implementing any changes to ACLEI's jurisdiction (including any budgetary implications). The department made two submissions to this inquiry. At the time of writing, no reporting date has been set.

Parliamentary Joint Committee on Human Rights

The committee tabled six reports on Bills and disallowable legislative instruments. It reported on the Extradition (Vietnam) Regulation 2013, the Native Title (Assistance from Attorney-General) Amendment Guidelines 2013, the Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014, the Regulatory Powers (Standard Provisions) Bill 2014, the Classification (Publication, Film and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014, the Amending Acts 1901 to 1969 Repeal Bill 2014, the Marriage (Celebrant Registration Charge) Bill 2014, the Marriage Amendment (Celebrant Administration and Fees) Bill 2014, the Personal Properties Securities Amendment (Deregulatory Measures) Bill 2014, the Statute Law Revisions Bill (No 1) 2014 and the
G20 (Safety and Security) Complementary Bill 2014.

In relation to the Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014
in the committee's Bill Digest No 57, the committee report raised several matters including the characterisation of unexplained wealth matters as civil proceedings, and provisions preventing restrained assets from being used to meet legal expenses. The Minister for Justice provided the committee with additional information on these issues on 29 April 2014.

The committee has not found any Bill or legislative instrument to be in breach of Australia's human rights obligations.

Parliamentary Joint Committee on Intelligence and Security

Various—reviews of listing of terrorist organisations

The department provided submissions to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) on its reviews of the listing and relisting of terrorist organisations. The committee tabled its report on the listing of Jabhat al-Nusra and the relisting of the Islamic State of Iraq and the Levant, Al-Qa'ida, the Abu Sayyaf Group, Al-Qa'ida in the Islamic Maghreb, Jamiat ul-Ansar, Jemaah Islamyiah and Al-Qa'ida in the Arabian Peninsula in February 2014.

Parliamentary Joint Committee on Law Enforcement

Inquiry into financial-related crime

On 5 March 2014, the Parliamentary Joint Committee on Law Enforcement initiated an inquiry into financial-related crime to examine the effectiveness of current Commonwealth law enforcement legislation and administrative arrangements that target serious and organised financial-related crime including money laundering and identity fraud. The department made a submission to the inquiry, discussing the policy aspects of combating financial crime. Submissions closed on 9 May 2014. At the time of writing, hearings had not been scheduled for the inquiry.

Inquiry into spectrum for public safety mobile broadband

The committee tabled a report identifying the public benefit derived from using radio frequency spectrum in both business-as-usual and mission-critical operations. It made a number of recommendations in support of allocation of spectrum for public safety agencies and the development of a dedicated network for a nationally interoperable public safety mobile broadband capability. At the time of writing, an Australian Government response to the report was being developed.

Senate Legal and Constitutional Affairs Legislation Committee

Inquiry into the Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014

The Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014 was referred to the committee on 6 March 2014 for inquiry and report. The committee examined provisions of the Bill, including amendments to streamline procedures for making unexplained wealth orders and prevent restrained assets from being used to meet legal expenses. The department appeared before the committee on 15 May 2014 to respond to issues raised by public submissions to the committee. The committee report recommended that the Bill be passed.

Senate Legal and Constitutional Affairs References Committee

Inquiry into the revision of the Telecommunications (Interception and Access) Act 1979

The Telecommunications (Interception and Access) Act 1979 (TIA Act) provides strict protection for the privacy of communications. It also establishes a limited regime for agencies to lawfully access communications as part of serious criminal and national security investigations. The pace of technological change has given rise to a range of legislative, policy and technical challenges that are degrading the ability of governments to exercise powers under the TIA Act in order to combat serious criminal activity and national security threats. Following recommendations by the PJCIS that the TIA Act be comprehensively revised in recognition of these challenges, the Senate referred the issue to the Senate Legal and Constitutional Affairs References Committee for an inquiry in December 2013. The department has made a detailed submission to and given evidence before this inquiry. The committee is due to report by 27 August 2014. The department is considering the recommendations made by the PJCIS in relation to the TIA Act.

Senate Standing Committee on Community Affairs

The Senate Community Affairs Committee Inquiry into involuntary or coerced sterilisation in Australia presented a report on the involuntary or coerced sterilisation of people with disability and a report on the involuntary or coerced sterilisation of people who are intersex. The government is currently considering the recommendations made by the committee.

External audit

During 2013–14 the Australian National Audit Office (ANAO) undertook seven audits involving the activities of the department:

  • Agency Management of Arrangements to Meet Australia's Treaty Obligations—this was a cross-agency performance audit of our department, the Australian Maritime Safety Authority, the Australian Safeguards and Non-Proliferation Office, and the Department of Foreign Affairs and Trade. The audit objective was to assess the effectiveness of Australia's arrangements to meet its treaty obligations under three selected treaties, including an examination of the work of the department in implementing the United Nations Convention on the Rights of the Child. The audit noted the challenges of implementing the Convention, and that the department had put in place broadly effective coordination arrangements to report on the Convention's implementation. The ANAO made a number of minor recommendations that were accepted.
  • The Australian Government Reconstruction Inspectorate's Conduct of Value for Money Reviews of Flood Reconstruction Projects in Queensland—this audit examined the effectiveness of the Australian Government Reconstruction Inspectorate in providing assurance that value for money is being achieved in respect to Queensland reconstruction projects. The department was not audited by the ANAO but was consulted in relation to its administration of Natural Disaster Relief and Recovery Arrangements.
  • Confidentiality in Government Contracts: Senate Order for Departmental and Agency Contracts (Calendar Year 2012 Compliance)—this was a cross-agency performance audit of our department, AUSTRAC, ComSuper, and the Department of Health. The audit objective was to assess the appropriateness of the use and reporting of confidentiality provisions in Australian Government contracts for the 2012 calendar year reporting period. There were no recommendations specific to the department.
  • Cyber Attacks: Securing Agencies' ICT systems—the audit objective was to assess selected agencies' compliance against the four mandatory ICT security strategies and related controls in the Australian Government Information Security Manual. The department was not audited by the ANAO but was consulted as the policy owner of the Australian Government's Protective Security Policy Framework.
  • Establishment and Use of Multi-Use Lists—this was a cross-agency performance audit of our department, the Bureau of Meteorology, the Department of Industry, the Australian Crime Commission, the Department of Defence and the Department of Human Services. The audit objective was to assess the extent to which agencies have arrangements to establish and use multi-use lists to support value for money, efficiency and effectiveness in procurement. The ANAO made two recommendations that were accepted.
  • The Management of Physical Security—the audit objective was to assess the effectiveness of physical security arrangements in selected Australian Government agencies. The department was not audited by the ANAO but was consulted as the policy owner of the Australian Government's Protective Security Policy Framework.
  • Managing Conflicts of Interest in FMA Agencies—this was a cross-agency performance audit of our department and 24 other agencies. The audit objective was to determine whether Australian Government agencies were implementing appropriate policies and processes to identify and manage conflicts of interest. The ANAO made a number of recommendations that were accepted.

Agency capability review

Ahead of the Game: Blueprint for the Reform of Australian Government Administration recommended that all departments undertake a Capability Review. In 2013–14, the department underwent a formal, independent, review by a senior review team supported by the Australian Public Service Commission. The final review report had not been released at the time of writing.

Other external scrutiny

We have not been the subject of any decisions or reports by the Australian Information Commissioner or Commonwealth Ombudsman that have had, or may have, a significant impact on our operations.

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