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External scrutiny

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Judicial decisions

Perrett v Attorney-General of the Commonwealth of Australia [2015] FCA 834

On 13 August 2015, the Federal Court of Australia delivered judgment in the matter of Perrett v Attorney-General, dismissing the application with costs. This case concerned the interpretation of the meaning of ‘the same in substance’ under section 48 of the then Legislative Instruments Act 2003 in remaking disallowed legislative instruments. In determining that the Family Law (Fees) Amendment (2015 Measures  No. 1) Regulation 2015 was not ‘the same in substance’ as the previously disallowed Federal Courts Legislation Amendment (Fees) Regulation 2015 the Court concluded that, for a legislative instrument to be invalid it must be, in substance or legal effect, identical to the previously disallowed measure. In coming to this conclusion, the Court found that ‘the same in substance’ is not merely ‘substantially similar’ but rather requires ‘virtual identity (or sameness) between the objects of comparison’.

Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962

The Hon Mark Dreyfus  QC MP sought access under the Freedom of Information Act 1982 to the incoming government brief (IGB) prepared  for the 2013 election. The department refused access to the IGB in its entirety on the grounds that it was a document to be used to inform government’s deliberations on policy. On review, the Information Commissioner decided to release parts of the IGB. Mr Dreyfus appealed the Information Commissioner’s decision to the Administrative Appeals Tribunal (AAT). Justice Bennett of the Tribunal decided that parts of the IGB were purely factual and should be disclosed. However, she found that IGBs are critical to a department building a relationship with its minister, as well as to a minister getting across their portfolio responsibilities. As such, she found that material in an IGB prepared with the intention of briefing the minister on issues they will need to consider and make decisions on as the responsible minister should be able to be held confidential and not released under the freedom of information scheme.

The decision provides guidance on the proper characterisation and potential disclosure of an IGB, as an IGB will not automatically be exempt in its entirety on deliberative grounds. For material that is properly classed as deliberative, the Tribunal found that there are powerful public interest considerations in favour of exemption arising from the special nature and role of an IGB.

Alqudsi v Commonwealth of Australia

Mr Alqudsi was charged under the former Crimes (Foreign Incursions and Recruitment) Act 1978 (CFIRA) pursuant to section 7(1)(e) with performing services to individuals with the intention of supporting or promoting the commission of an offence under section 6 of the former CFIRA, being the entry by an individual into a foreign State, namely Syria, with intent to engage in hostile activities. Mr Alqudsi argued that the offence under section 7(1)(e) was not supported by a constitutional head of power, in particular the external affairs power (section 51(xxix)). On 27 August 2015, the NSW Supreme Court dismissed the challenge to the constitutional validity of section 7(1)(e). On 16 November 2015, the NSW Court of Appeal dismissed appeals by Mr Alqudsi. Mr Alqudsi subsequently filed a special leave application in the High Court. On 12 February 2015, the High Court (Bell, Gageler and Keane JJ) refused special leave and awarded costs to the Commonwealth.

Francuziak v Minister for Justice [2016] HCASL 30

Mr Pawel Francuziak was the subject of a determination by the Minister for Justice under the Extradition Act 1988 that he be surrendered to the Republic of Poland to face prosecution for child sex offences. Mr Francuziak sought judicial review of this determination in the Federal Court, which was dismissed last financial year.

Mr Francuziak appealed to the Full Federal Court. The appeal concerned a new issue of whether Mr Francuziak was denied procedural fairness in the judicial review before the Federal Court because that Court did not have before it a full version of the departmental brief that informed the Minister’s determination to surrender Francuziak to Poland for a child sex conviction. The departmental brief was partially redacted with consent on the basis of legal professional privilege claimed by the Minister.

The Full Federal Court unanimously dismissed the appeal with costs. Mr Francuziak subsequently applied for special leave to appeal to the High Court, which was refused on the basis that none of the grounds of appeal enjoyed sufficient prospects of success.

Kalinovas v Republic of Lithuania [2015] FCA 961

Mr Paulius Kalinovas was found eligible for surrender to the Republic of Lithuania for alleged internet banking fraud. Mr Kalinovas sought statutory review of the surrender eligibility finding. The issue before the Federal Court was whether Mr Kalinovas had established an extradition objection within the meaning of section 7(c) of the Extradition Act 1988. Section 7(c) of the Act provides a safeguard against being extradited to face a trial or punishment by reason of race, sex, sexual orientation, religion, nationality or political opinions. Mr Kalinovas argued that he will be prejudiced at trial and/or will be punished due to his Russian nationality and Jewish religion. Mr Kalinovas led evidence about the likelihood of mistreatment by fellow prisoners or guards due to his nationality and religion. On 31 August 2015, the Federal Court dismissed the application. The Federal Court found that Mr Kalinovas’ evidence was not directed to prejudice at trial nor to prejudice in punishment, detention or restriction of liberty by the state. The Court held that section 7(c) of the Act is not directed to what may happen to a person in gaol by reason of the actions of other inmates or guards, where those are merely of individuals and not shown to be caused by or condoned by the state.

Christopher Lobban v Minister for Justice [2015] FCA 1361

Mr Lobban was the subject of a determination by the Minister for Justice that he be surrendered to the United States of America to face prosecution for child sexual assault offences. Mr Lobban sought judicial review of the Minister’s determination in the Federal Court of Australia on a number of grounds. Two key grounds raised by Mr Lobban were that the Minister’s determination was infected by legal unreasonableness, and that the determination constituted a disproportionate exercise of power, in particular due to the disparity between the likely sentence if prosecuted in Australia and the penalty faced in the United States (namely, a mandatory minimum sentence of 25 years to life imprisonment). The Court found for the Minister on all grounds. In its decision, the Court emphasised that the mere fact that reasonable minds may differ on a conclusion does not, of itself, create a legally unreasonable decision. Significantly, the Court found that disproportionality is not a recognised independent ground of judicial review in Australian law. Rather, it is a factor that may be considered in the context of an assertion of legal unreasonableness. Mr Lobban has lodged an appeal to the Full Federal Court.

Tralješić v Bosnia & Herzegovina & Anor [2016] FCA 383

Mr Rasim Tralješić was found eligible for surrender to Bosnia and Herzegovina to serve the remainder of a sentence for attempted murder and an associated offence. Mr Tralješić applied for review of this finding in the Federal Court of Australia. The key issue before the Court was whether, as a matter of law, a person may be ‘punished’ or ‘restricted in personal liberty’ within the meaning of s 7(c) of the Extradition Act 1988 as a result of ill-treatment inflicted by other prison inmates because of the person’s race, sex, sexual orientation, religion, nationality or political opinions. The Court held that s 7(c) is directed at the conduct of state authorities and does not extend to harm suffered in prison unless the state can be said to be involved in, complicit in, or condoning of the harm, as well as the reasons for the harm. This decision is significant in clarifying the scope of s 7(c) with respect to non-state actors, and the importance to be given to the international crime cooperation context in interpreting Australia’s legislation governing international extradition. Mr Tralješić has lodged an appeal to the Full Federal Court.

Challenges by federal offenders

There were no challenges made by federal offenders to decisions made by the Attorney-General or his delegate in the reporting period. One former federal offender appealed against an earlier decision by the Federal Court on whether the referral provision in section 140 of the Sentencing Act 1995 (WA), imposed a duty on the Attorney-General to decide whether or not to refer his petition to the Court of Appeal (WA). The Full Court overturned the earlier decision, holding that the Attorney-General was under a requisite duty to make a decision. Costs were awarded in favour of the appellant. See Yasmin v Attorney-General of the Commonwealth of Australia [2015] FCAFC 145.

Review of AusCheck decisions

During the reporting period, one individual applied to the AAT for a review of a decision made by AusCheck. This was in relation to a decision that the person had an adverse criminal record in accordance with the Maritime Transport and Offshore Facilities Security Regulations 2003. The appeal was dismissed by the Tribunal.

Australian Information Commissioner Determinations

The department has not been the subject of any decisions or reports by the Australian Information Commissioner that have had, or may have, a significant impact on operations.

Commonwealth Ombudsman

The department has been the subject of a review by the Commonwealth Ombudsman.

During the reporting period, the Commonwealth Ombudsman investigated a complaint about AusCheck’s administration of a background check made by an applicant for an Aviation Security Identification Card. The substance of the complaint did not relate to AusCheck directly – the applicant had made a complaint about the length of time taken by one of AusCheck’s checking partners in providing AusCheck with a response. The Commonwealth Ombudsman subsequently advised that no further investigation of the complaint was warranted. Recommendations made by the Ombudsman have been incorporated into AusCheck’s standard procedures.

Reports by Parliamentary committees

Senate Legal and Constitutional Affairs Legislation Committee

Family Law Amendment (Financial Agreements and Other Measures) Bill 2015

The Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 was referred to the committee on 3 December 2015 for inquiry and report. The committee examined the provisions of the Bill, which included measures to strengthen protections against family violence and improve the operation of the financial agreement provisions in the Family Law Act 1975. The department appeared before the committee on 12 February 2016, and provided a written submission on 18 February 2016, to respond to issues raised by public submissions to the committee. The committee’s majority report recommended that the Bill be passed subject to three recommendations.

Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015

On 3 December 2015, the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill was referred to the committee for inquiry and report. The committee examined provisions of the Bill, in particular the proposed amendments to the Commonwealth Proceeds of Crime Act 2002 and the new offences of false dealing with accounting documents to be inserted in the Commonwealth Criminal Code Act 1995. On 22 January 2016, the department appeared before the committee to respond to issues in the submission it provided to the committee. On 3 February 2016, the committee tabled its report recommending that the Bill be passed.

Australian Crime Commission Amendment (National Policing Information) Bill 2015 and the Australian Crime Commission (National Policing Information Charges) Bill 2015

On 4 February 2016, the Senate referred the Bills to the committee for inquiry and report. The Bills implemented the merger of CrimTrac and the Australian Crime Commission (ACC) and continued CrimTrac’s charging regime. In particular, the committee examined the impact of the merger on individual privacy and access to national policing information by state crime and corruption commissions. The department, CrimTrac and the ACC provided a joint submission to the committee and answered questions on notice that arose during the inquiry. On 10 March 2016, the committee recommended the Bills be passed.

Australian Crime Commission Amendment (Criminology Research) Bill 2015

On 12 November 2015, the Senate referred the Bill to the committee for inquiry and report. The committee examined a number of issues impacted by the proposed merger of the ACC and the Australian Institute of Criminology (AIC), including the integrity and independence of criminological research, setting research priorities, allocation of grants and public access to data and library resources. The department, the ACC and the AIC provided a joint submission to the committee and appeared at a public hearing on 19 November 2015. On 26 November 2015, the committee recommended the Bill be passed.

Criminal Code Amendment (Harming Australians) Bill 2013

On 12 December 2013 the Senate referred the Criminal Code Amendment (Harming Australians) Bill 2013 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report. The committee tabled its report on 13 August 2015 and recommended that further consultation be conducted on the Bill prior to its consideration by the Senate.

Senate Legal and Constitutional Affairs References Committee

Handling of a letter sent by Mr Man Haron Monis to the Attorney-General

On 16 June 2015, the Senate referred to the Legal and Constitutional Affairs References Committee the matter of the handling of a letter sent by Mr Man Haron Monis to the Attorney-General, dated 7 October 2014, and the evidence provided during Budget estimates, including the subsequent correction of that evidence. The committee’s report was tabled on 16 September 2015 and included recommendations to help the department improve its administrative procedures.

Matter of a popular vote, in the form of a plebiscite or referendum, on the matter of marriage in Australia

On 20 August 2015, the Senate referred the matter of a popular vote, in the form of a plebiscite or referendum, on the matter of marriage in Australia to the Legal and Constitutional Affairs References Committee. The committee’s report was tabled on 16 September 2015. The committee’s majority report recommended that a Bill to amend the definition of marriage in the Marriage Act 1961 to allow for the marriage between two people, regardless of their sex, be introduced into the Parliament as a matter of urgency, with all parliamentarians being allowed a conscience vote.

Inquiry into work undertaken by the Australian Federal Police’s Oil for Food Taskforce

On 24 March 2015, the committee delivered its report on its inquiry into the work undertaken by the Australian Federal Police’s (AFP) Oil for Food Taskforce. The committee examined work undertaken by the taskforce, the level of resourcing it was provided and used, and other related matters. The majority report recommended the inquiry should not further exercise the resources of the Federal Parliament. The final report did not make any adverse findings on the work of the AFP’s Oil for Food Taskforce. The Government agreed with the majority recommendation and the Government response to the minority report recommendations was tabled on 3 February 2016.

Senate Economics References Committee

Inquiry into the foreign investment review framework

The department and the Australian Security Intelligence Organisation provided a joint submission to the committee’s inquiry outlining the department’s role in considering foreign investment applications and on critical infrastructure resilience policy. The department also appeared before the committee at a public hearing on 10 March 2016. Treasury has lead responsibility for responding to the report, which was published on 8 April 2016.

Inquiry into digital currency

On 2 October 2014, the Senate referred an inquiry into digital currency to the Senate Economics References Committee for inquiry and report. The department made a submission to the inquiry outlining how the anonymity and security of digital currencies could be exploited and abused to facilitate the laundering of proceeds of crime and the purchase of illicit goods and services. The committee’s report, tabled on 4 August 2015, recommended that the statutory review of Australia’s anti-money-laundering and counter-terrorism financing (AML/CTF) regime consider extending AML/CTF regulation to digital currency exchange businesses. In its formal response, released on 5 May 2016, the Government agreed with this recommendation. The report on the statutory review has now recommended that the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 be amended to regulate activities relating to convertible digital currency, with a particular focus on activities undertaken by digital currency exchange providers.

Senate Scrutiny of Bills Committee

Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015

On 3 December 2015, the committee wrote to the Minister requesting further information regarding amendments to the Commonwealth Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and the Commonwealth AusCheck Act 2007 contained in the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015. On 1 February 2016, the Minister responded to the issues raised and on 3 February 2016 the committee presented its report to the Senate. The report recommended amendments to the Explanatory Memorandum and the AusCheck Regulations 2007. On 12 February 2016, the Minister responded to the committee chair.

Senate Select Committee on the Establishment of a National Integrity Commission

This Select Committee was established to inquire into whether a national integrity commission should be established to address institutional, organisational, political and electoral, and individual corruption and misconduct.

The committee tabled an interim report on 3 May 2016 which recommended that the Australian Government support current and sound future research into potential anti-corruption systems appropriate for Australia, including the research led by Griffith University, in partnership with Transparency International Australia.

Parliamentary Joint Committee on Human Rights

Human rights scrutiny report on the Telecommunications (Interception and Access) Amendment (Public Interest Advocates and Other Matters) Regulation 2015

The Parliamentary Joint Committee on Human Rights released a report assessing the human rights compatibility of regulations pertaining to the role of Public Interest Advocates under the journalist information warrant scheme in the Telecommunications (Interception and Access) Act 1979. The committee acknowledged that the Public Interest Advocate scheme is an important human rights safeguard. The report raised some concerns, including about the scope for advocates to consult with affected journalists and the absence of procedural guarantees that all applications for a journalist information warrant would be accompanied by an advocate’s submission. The Attorney-General responded to those concerns on 9 February 2016, indicating that applications for warrants authorising the use of covert powers are ordinarily conducted on an ex parte basis, and that the effect of the regulations is to require an agency to continue to approach appointed advocates to make a submission in relation to a warrant application until it finds one who is available. The committee thanked the Attorney-General for his response, but indicated that it maintained concerns.

Parliamentary Joint Committee on Intelligence and Security

Advisory report on the Counter-Terrorism Legislation Amendment Bill (No.1) 2015

On 12 November 2015, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015  was referred to the Committee by the Attorney-General for public inquiry. The Committee examined a number of amendments proposed in the Bill, including provisions relating to applications for control orders, monitoring persons subject to control orders, as well as other amendments to provisions in the Criminal Code Act 1995 and other legislation.

The Committee tabled its report on 15 February 2016. The Bill was reintroduced in the Senate on 15 September 2016 and included provisions implementing recommendations contained in the Committee’s report.

Parliamentary Joint Committee on Law Enforcement

Inquiry into crystal methamphetamine (ice)

On 18 March 2015, the Parliamentary Joint Committee on Law Enforcement initiated an inquiry into crystal methamphetamine (ice). The department worked closely with the ACC, AFP, AIC, AUSTRAC and the Department of Immigration and Border Protection to develop a joint submission that set out investigative, intelligence and policy perspectives on the supply of ice. The submission highlighted the need for a comprehensive and coordinated response to the ice problem, encompassing supply reduction, demand reduction and harm reduction strategies. The department also appeared alongside the other contributing agencies at a public hearing on 14 October 2015. The committee has not confirmed when it expects to table its report.

Inquiry into financial-related crime

The department is responsible for the Government’s response to the Parliamentary Joint Committee on Law Enforcement. The inquiry examined the effectiveness of Commonwealth law enforcement legislation and administrative arrangements that target serious and organised financial-related crime, including money laundering and identity fraud. The committee tabled its report on 7 September 2015. The committee made 14 recommendations to enhance the ability of individuals, service providers and law enforcement agencies to better protect themselves and the community from financial-related crime in Australia. The Government has yet to respond to the report.

Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity

Inquiry into the jurisdiction of the Australian Commission for Law Enforcement Integrity (ACLEI)

On 6 March 2014, the Parliamentary Joint Committee on ACLEI initiated an inquiry into the adequacy of the Integrity Commissioner’s current jurisdiction and the desirability and feasibility of extending that jurisdiction. The department made a submission and a supplementary submission to the inquiry and appeared alongside other contributing agencies at a public hearing on 26 September 2014. The committee handed down its report on 5 May 2016, recommending that the entire Department of Agriculture and Water Resources be included within the Integrity Commissioners’ jurisdiction; an independent assessment of the Australian Taxation Office’s (ATO) corruption profile be initiated together with an examination of the feasibility of including the ATO within jurisdiction; and AusCheck be transferred to an agency within jurisdiction.

Joint Committee of Public Accounts and Audit

On 25 June 2015, the Joint Parliamentary Committee of Public Accounts and Audit (JCPAA) reviewed the Australian National Audit Office (ANAO) Performance Audit Report No. 34 (2014- 2015) Administration of the natural disaster relief and recovery arrangements by Emergency Management Australia. Subsequently, in September 2015, the department attended a public hearing on the review findings and submitted a response committing to activity to address the recommendations made by the ANAO in its performance audit report. On 7 December 2015, the JCPAA tabled Report 452 Natural disaster recovery; Centrelink telephone services; and Safer Street Program, Review of Auditor-General Reports Nos 24–50 (2014–15) requesting that the department report on progress made towards implementing the recommendations. The department is preparing a report to reflect progress and will submit the report to the JCPAA.

Joint Standing Committee on Treaties

The Joint Standing Committee on Treaties (JSCOT) reported on two international crime cooperation treaties. These were the Treaty between Australia and the Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters (Report 156, dated 23 November 2015) and the Agreement between the Government of Australia and the Government of the Republic of India concerning Transfer of Sentenced Persons (Report 157, dated 2 December 2015). In both instances, JSCOT recommended that binding treaty action be taken by Australia in relation to the treaties.

House of Representatives Standing Committee on Social Policy and Legal Affairs

Inquiry into the regulatory and legislative  aspects of international and domestic surrogacy arrangements

On 3 December 2015, the Government tabled its response to the House of Representatives Standing Committee on Social Policy and Legal Affairs’ report Roundtable on surrogacy, which was released on 24 March 2015. The Government accepted the report’s recommendations that the Attorney-General ask the committee to inquire into the regulatory and legislative aspects of international and domestic surrogacy arrangements. The department provided a submission to the inquiry on 10 February 2016 and appeared before the committee on 3 March 2016. The committee tabled its report Surrogacy matters, containing 10 recommendations, on 4 May 2016.

Rural and Regional Affairs and Transport Legislation Committee

Transport Security Amendment (Serious or Organised Crime) Bill 2016

On 22 April 2016, the Rural and Regional Affairs and Transport Legislation Committee tabled its report following an inquiry into the Transport Security Amendment (Serious or Organised Crime) Bill 2016. The Bill proposed amendments to the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003 that would have operational impacts for AusCheck, as the agency conducting background checks under these schemes. The committee recommended the Bill be passed. On 17 April 2016, the Bill lapsed due to prorogation of Parliament.

Agency capability reviews

Capability Review

As noted in the 2014–15 Annual Report, the Capability Review, released by the APSC in December 2014, identified opportunities for improvements across the department. These opportunities were grouped into four themes:

  1. defining our organisational identity
  2. more effectively engaging with stakeholders
  3. building a culture of evidence-based choices
  4. embracing risk.

The department has undertaken a series of capability improvement initiatives relating to these themes. These initiatives have now been completed or are embedded as part of ongoing departmental practice.

Functional and Efficiency Review

As part of the Government’s Efficiency through Contestability Programme, the department participated in a Functional and Efficiency Review. Led by Mr Laurie Glanfield AM, former Director-General of the NSW Department of the Attorney General and Justice, the review assessed the efficiency and effectiveness of the department’s operations, programmes and administration to ensure they aligned with the Government’s priorities.

The review showed that the vast majority of the department’s work appropriately contributes to the Government’s core priorities in the administration of justice, the rule of law and the preservation of the safety and security of Australia. The report included a number of recommendations to improve the way the department conducts its business from minor administrative matters to more significant changes. The department is working through implementation of agreed recommendations and, in some instances, implementation is already achieved or underway – for example, the restructure of the department and the merger of AGD and AGS libraries.

External audit

There were no audits completed by the ANAO involving the activities of the department during 2015–16.

As at 30 June 2016, there were three audits underway involving the activities of the department:

  • Management of machinery-of-government changes
  • The design of, and award of funding under, the Living Safe Together grants programme
  • Proceeds of crime: restraint, maintenance and disposal of property.

Other external scrutiny

The department has not been the subject of any decisions or that had, or may have, a significant impact on operations.

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