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External scrutiny

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Judicial decisions

Lobban v Minister for Justice [2016] FCAFC 109
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 (Lobban v Minister for Justice [2015] FAC 1361). On appeal to the Full Federal Court, Mr Lobban raised a new ground of review concerning the construction of Article XIII of the Treaty of Extradition between Australia and the United States of America, as amended by the Protocol amending the Treaty on Extradition between Australia and the United States of America of May 14 1974 (bilateral treaty). Article XIII allows for a requested state to seek further information in support of an extradition request within a specified period, failing which an individual must be released from extradition custody.

By a majority of 2-1, the court agreed with the Minister's submission that, when interpreted in context, Article XIII of the bilateral treaty is not directed at requests made by or on behalf of the Minister at the s 22 stage of the extradition process (the surrender determination stage). Rather, Article XIII relates to earlier stages of the extradition process. Mr Lobban subsequently sought special leave to appeal to the High Court of Australia, which was refused. This decision is significant as it is the sole decision of a superior court on the interpretation of Article XIII of the bilateral treaty.

Tralješić v Bosnia and Herzegovina [2017] FCAFC 70
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. This finding was upheld by Justice Mortimer on review in the Federal Court of Australia. Mr Tralješić appealed this decision to the Full Federal Court. As at first instance, the key issue before the Full 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 (Cth) 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 Full Court unanimously agreed with submissions made by Bosnia and Herzegovina 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 as it is the sole decision of a superior court on the scope of s 7(c) with respect to non-state actors. The decision also confirms the importance of the international crime cooperation context in interpreting Australia's legislation governing international extradition. Mr Tralješić has lodged an application for special leave to appeal to the High Court of Australia.

Reports by parliamentary committees

Joint Committee of Public Accounts and Audit

On 24 March 2017, the Joint Committee of Public Accounts and Audit reviewed the ANAO Performance Audit Report No. 12 2016–17; The Design of, and Award of Funding Under, the Living Safe Together Grants Programme. The department provided an update to the committee on progress and implementation of the ANAO's recommendations.

Joint Standing Committee on Treaties

Treaty on Extradition between Australia and the People's Republic of China
The Joint Standing Committee on Treaties reported on the Treaty on Extradition between Australia and the People's Republic of China (report 167, dated 16 December 2016). The report recommended that binding treaty action be taken and made recommendations relating to consideration of extradition requests under the treaty, reporting on extradited individuals and monitoring of extradited foreign nationals. The report recommended that binding treaty action be deferred until after an independent review of the Extradition Act 1988 (Cth) is undertaken. The government response to the report was tabled on 1 March 2017.

Joint Standing Committee on Electoral Matters

Inquiry into and report on all aspects of the conduct of the 2016 federal election and matters related thereto
On 21 September 2016, the Joint Standing Committee on Electoral Matters commenced its inquiry into the conduct of the 2016 federal election. On 9 December 2016, the committee released its interim report on the authorisation of voter communication. The report recommended that steps should be taken to prohibit impersonating a Commonwealth officer or entity.

To address the findings of the interim report, the department developed new criminal offences for impersonating a Commonwealth entity, company or service. On 30 March 2017, these offences were introduced in the House of Representatives as part of the Electoral and Other Legislation Amendment Bill 2017 that the Department of Finance is leading.

Joint Standing Committee on Foreign Affairs, Defence and Trade

Inquiry into the status of the human right to freedom of religion or belief
On 29 November 2016, the Minister for Foreign Affairs asked the committee to inquire into and report on the status of the human right to freedom of religion or belief. On 2 May 2017, the department made a submission to the inquiry setting out the Australian Government's arrangements for the protection and promotion of freedom of religion or belief in Australia. The inquiry is ongoing.

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights reported on the Plebiscite (Same-Sex Marriage) Bill 2016 in its Report 7 of 2016 and Report 8 of 2016. The Plebiscite Bill was negatived in the Senate on 7 November 2016.

Extradition (People's Republic of China) Regulations 2017
The Parliamentary Joint Committee on Human Rights reported on the Extradition (People's Republic of China) Regulations 2017 (report 4 of 2017, dated 9 May 2017).

Freedom of Speech in Australia
On 8 November 2016, the Attorney-General asked the committee to inquire into two issues relating to freedom of speech in Australia, the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and the Australian Human Rights Commission's complaints handling procedures. The department appeared before the committee on 12 December 2016 and 17 February 2017. The committee's majority report recommended a number of amendments to the Australian Human Rights Commission Act 1986 (Cth) and proposed potential amendments to section 18C of the Racial Discrimination Act.

Human rights scrutiny reports on the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017
On 9 May 2017, the Parliamentary Joint Committee on Human Rights wrote to the Minister for Justice requesting further information about the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017. The committee specifically sought further information about the compatibility of amendments to the functions of the Australian Federal Police with the right to privacy, the right to life and the right to be free from torture and cruel, inhuman and degrading treatment. On 29 May 2017, the Minister responded to the committee chair.

Parliamentary Joint Committee on Intelligence and Security

On 6 December 2016, the listing of four terrorist organisations (Al-Qa'ida in the Indian Subcontinent, Islamic State in the Sinai Province, Islamic State in Libya, and Al-Qa'ida in the Arabian Peninsula) was referred to the Parliamentary Joint Committee on Intelligence and Security. The committee conducted enquiries, including public hearings, and reported on 20 March 2017. In its report, the committee supported the listing of each organisation under the Criminal Code.

The Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 was introduced into the Senate on 15 September 2016. The Bill was immediately referred to the committee for inquiry and report. The department provided submissions and appeared at both the public and private hearings. On 4 November 2016, the committee tabled its Advisory Report on the Bill. On 30 November 2016, the government accepted all 24 recommendations. The Bill passed the Parliament on 1 December 2016 and commenced on 7 June 2017.

The Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 was introduced into the Senate on 15 September 2015. The Bill was referred to the committee for inquiry and report. The department provided a written submission and appeared at the public hearing on 14 December 2015. On 15 February 2016, the committee released its Advisory Report into the Bill making 21 recommendations. On 25 July 2016, the government accepted all 21 recommendations. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 was introduced into Parliament on 15 September 2016, which replaced the 2015 Bill and included provisions implementing the committee's recommendations. The 2016 Bill passed the Parliament on 22 November 2016 and received the Royal Assent on 29 November 2016.

Senate Rural and Regional Affairs and Transport References Committee

On 30 March 2017, the Senate Rural and Regional Affairs and Transport References Committee tabled its report into airport and aviation security. The committee made nine recommendations, two of which are relevant to background-checking:

  • That the Australian Government review the feasibility of establishing a centralised issuing authority for Aviation Security Identification Cards (ASIC) (recommendation 5).
  • That the Australian Government consider the development of a national automatic notification system for aviation-security-relevant offence convictions for ASIC holders (recommendation 6).

The department worked closely with the Department of Infrastructure and Regional Development on a whole-of-government response and continues to contribute to relevant work in response to the report.

Senate Economic References Committee Inquiry into White-Collar Crime

On 25 November 2015, the Senate referred an inquiry into the inconsistencies and inadequacies of current criminal, civil and administrative penalties for corporate and financial misconduct (white-collar crime) to the Senate Economics References Committee for inquiry. The department provided a submission on 20 April 2016. This inquiry lapsed after Parliament was dissolved on 9 May 2016 for the federal election. On 11 October 2016, the Senate moved that this inquiry be re-adopted. The committee held public hearings on 6 December 2016 that the department attended. The committee issued its final report on 23 March 2017.

Senate Finance and Public Administration References Committee

On 12 October 2016, the Senate referred the issue of Commonwealth funding of Indigenous Tasmanians to the Senate Finance and Public Administration References Committee for inquiry and report by 28 November 2016. The department provided a submission on the funding of legal assistance services to Indigenous Tasmanians on 4 November 2016. The department appeared at the inquiry hearing on 16 November 2016 and responded to questions on notice from Senator Lambie on 21 November 2016. The final report was tabled on 28 November 2016. The committee made no recommendations and supported the Commonwealth's approach to determining eligibility for Indigenous service and programs.

Senate Legal and Constitutional Affairs Legislation Committee

Civil Law and Justice Legislation Amendment Bill
On 30 March 2017, the Senate referred the Bill to the committee for inquiry and report. The committee considered the various proposed measures in the Bill, with particular consideration given to the amendments to the Bankruptcy Act 1966 (Cth), the new international parental child abduction offences in the Family Law Act 1975 (Cth) and the modernisation of the arrest provisions in the Family Law Act. The committee released its report on 10 May 2017 and recommended that the Bill be passed, subject to four recommended amendments to the Bill.

Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016
The Senate Legal and Constitutional Affairs Legislation Committee reported on the Bill on 23 March 2017, recommending that minor amendments be made to one schedule. The Minister for Justice proposed government amendments to the Bill.

Human Rights Legislation Amendment Bill 2017
The Human Rights Legislation Amendment Bill 2017 was referred to the committee on 23 March 2017 for inquiry and report on 28 March 2017. The committee examined the provisions of the Bill that included measures to amend section 18C of the Racial Discrimination Act 1975 (Cth) and the provisions in the Australian Human Rights Commission Act 1986 (Cth) regarding the handling of complaints. The department appeared before the committee on 24 March 2017. The committee's majority report recommended that the Bill be passed.

Inquiry into Australian Crime Commission Amendment (Criminology Research) Bill 2016 [Provisions]
On 13 October 2016, the Senate referred the Bill to the committee for inquiry and report. The committee examined a number of issues raised by the proposed merger of the ACIC and the Australian Institute of Criminology, including the integrity and independence of criminological research, setting research priorities, allocation of grants and the leadership of the new research branch. The report was tabled on 9 November 2016.

Native Title Amendment (Indigenous Land Use Agreement) Bill 2017
The Senate referred the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 to the committee on 16 February 2017. This Bill was in response to McGlade v Native Title Registrar [2017] FCAFC 10, which overturned previous legal authority and cast doubt on the status of approximately 120 Indigenous Land Use Agreements. On 13 March 2017, the department appeared before the committee. The committee's majority report recommended that the Bill be passed subject to the removal of certain measures. The government accepted the committee's recommendations.

The Privacy Amendment (Re-identification Offence) Bill 2016
The Privacy Amendment (Re-identification Offence) Bill 2016 was referred to the committee on 10 November 2016 for inquiry and report. The committee examined the provisions of the Bill that would amend the Privacy Act 1988 (Cth) to introduce prohibitions on the re-identification of de-identified information and disclosure of re-identified information. The department provided a submission to the committee and answered the committee's questions on notice. The committee's majority report recommended that the bill be passed.

Senate Legal and Constitutional Affairs References Committee

Legal Services Amendment (Solicitor-General Opinions) Direction 2016
On 4 May 2016, the Legal Services Amendment (Solicitor-General Opinions) Direction 2016 was issued, inserting a new paragraph 10B into the Legal Services Directions 2005. On 15 September 2016, the Senate referred to the Legal and Constitutional Affairs References Committee on the nature and scope of consultations conducted prior to the making of the amendment. The committee's report was tabled on 8 November 2016 and recommended the Senate reject the amendment or it be withdrawn. The Direction was withdrawn by the Attorney‑General on 10 November 2016 and was disallowed by the Senate on 23 November 2016.

Nature and scope of any agreement reached by the Commonwealth and Western Australian governments in relation to the distribution of proceeds of the liquidation of, and litigation concerning, the Bell Group of companies (the proceeds)
On 29 November 2016, the Senate referred the above matter to the Legal and Constitutional Affairs References Committee for inquiry and report by 21 March 2017. The committee published an interim report on 22 March 2017 and a final report on 21 June 2017. The government is considering its response to the report. The final report is available on the Parliament of Australia website.

Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill

On 30 November 2016, a Senate Select Committee was established to inquire into the Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill 2016. The department provided a submission to the committee and appeared at a public hearing on 25 January 2017. On 15 February 2017, the committee delivered its report making no recommendations and indicating that the report 'will prove a valuable and instructive foundation, identifying the scope of issues to be addressed by a future parliament considering legislative changes to the definition of marriage'.1 The report concluded that the proposed definition of marriage in the Exposure Draft as between two people was supported and that balancing of competing rights is important in the context of same-sex marriage, specifically, the protection of religious freedom needs to be addressed.

Standing Committee on Regulations and Ordinances

The committee reviewed and asked questions about a range of regulations including the Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016 and the Legal Services Directions 2017. Ongoing engagement occurred during the financial year, with correspondence published in relevant delegated legislation monitors.

Privacy Amendment (Energy and Water Utilities) Regulation 2017
The committee wrote to the Attorney-General with scrutiny issues related to the Privacy Amendment (Energy and Water Utilities) Regulation 2017 raised in the Delegated legislation monitor 4 of 2017. The Attorney-General addressed the issues in a letter to the committee dated 19 April 2017. In the Delegated legislation monitor 5 of 2017, the committee thanked the Attorney-General for his response and stated it had concluded its examination of the instrument.

Standing Committee on Social Policy and Legal Affairs

Inquiry into a better family law system to support and protect those affected by family violence
In June 2017, the department made a submission to, and appeared before, the House of Representatives Standing Committee on Social Policy and Legal Affairs conducting this inquiry. The department provided information about current government initiatives to improve the family law system. The committee does not currently have a final reporting date.

External audit

During 2016–17, the ANAO completed four audits involving the activities of the department:

  • Machinery of Government Changes - the audit assessed the effective management of machinery of government changes by selected Australian Government entities, including the Attorney-General's Department. There were no recommendations relevant to the department.
  • The Design of, and Award of Funding Under, the Living Safe Together Grants Programme – the audit assessed the effective administration of the Living Safe Together Grants Programme. The audit made one recommendation to improve the assessment of eligibility and merit of grant applications as well as the advice provided to decision-makers.
  • Proceeds of Crime – the audit assessed the effective administration of property and funds under the Proceeds of Crime Act 2002 (Cth) of the Australian Federal Police, the Australian Financial Security Authority and the Attorney-General's Department. The audit made one recommendation to all three entities to implement arrangements to improve rates of returns from proceeds-of-crime funds.
  • Managing Underperformance in the Australian Public Service – the audit assessed the effective management of underperformance in the APS and identified opportunities for improvement. There were no recommendations specific to the department. However, it provided useful learnings on how the department can mitigate poor performance.

As at 30 June 2017, there were three audits underway involving the activities of the department:

  • Administration of the Freedom of Information Act 1982 (Cth) – the audit objective is to assess the effectiveness and efficiency of selected entities' implementations of the Freedom of Information Act 1982 (Cth).
  • Efficiency through Contestability Programme – the audit objective is to assess the effectiveness of the Efficiency Through Contestability Programme in supporting selected entities to improve the efficient delivery of government functions.
  • Mitigating insider threats through personnel security – the audit objective is to assess the effectiveness of the Australian Government's personnel security arrangements for mitigating insider threats in selected entities.

Living Safe Together Grants Programme

The ANAO audit of the Living Safe Together Grants Programme was tabled on 1 September 2016. The ANAO concluded that the design and promotion of the program was effective, that merit criteria were well designed and appropriate to the program and that applications were assessed through a sufficiently rigorous process. The report made one recommendation for improvement; that the department take effective steps to provide greater accountability for, and effectively address, continuing deficiencies in its assessment of the eligibility and merit of grant applications as well as advising decision-makers about those applications that should be funded and those that should be rejected.

Other external scrutiny

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

 

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