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 External scrutiny

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Judicial decisions

Liem v Republic of Indonesia (2017) FCA 1303
Mr Liem was found eligible for surrender to the Republic of Indonesia in relation to alleged embezzlement and money laundering offences. Mr Liem applied to the Federal Court for a review of the magistrate's finding of surrender eligibility. One of the key issues before the Federal Court was whether the request material from Indonesia was capable of establishing that Mr Liem was 'accused' of the extradition offences (i.e. whether Mr Liem was wanted for prosecution for those offences in Indonesia, as opposed to only being the subject of investigation).

The Federal Court found that Mr Liem was accused of the extradition offences and held that the interpretation of Australia's extradition legislation needs to take into account differences in criminal justice systems in countries and that, when viewed holistically, a prosecution process had commenced against Mr Liem in Indonesia.

Ng v Attorney-General (2017) FCA 1392
Mr Ng was originally sentenced to a term of imprisonment in the People's Republic of China. He was transferred to Australia under the Treaty between the Government of Australia and the Government of the People's Republic of China concerning Transfer of Sentenced Persons to serve the balance of his sentence as though he was a federal offender who had the same sentence imposed on him in Australia. After returning to Australia, Mr Ng was released on licence on compassionate grounds. Ten weeks after his release, Mr Ng applied to have all of his licence conditions removed or, alternatively, the removal of the condition that required Mr Ng to have the written permission of the Attorney-General to leave Australia. Mr Ng sought judicial review of the decision of the delegate to refuse to make an order to amend the terms of release on licence. Mr Ng was unsuccessful on all grounds for review.

Burns v Corbett (2018) HCA 15
In 2013, NSW resident, Mr Burns brought a claim against Victoria resident, Ms Corbett, in the then Administrative Decisions Tribunal of NSW (ADT). Mr Burns alleged that Ms Corbett engaged in acts contrary to s 49ZT of the Anti-Discrimination Act 1977 (NSW). The ADT found that Ms Corbett had breached s 49ZT and ordered that she refrain from engaging in the relevant conduct and publish an apology. Ms Corbett filed an appeal to the Appeal Panel of the ADT (since replaced by the NSW Civil and Administrative Tribunal (NCAT)). The Appeal Panel of NCAT dismissed Ms Corbett's appeal. The Registrar of NCAT issued a certificate under s 114 of the Anti-Discrimination Act 1977 for the purpose of enforcing the order originally made by the ADT (subsequently deemed to have been made by NCAT).

Mr Burns prosecuted Ms Corbett for contempt in the NSW Supreme Court. The basis of the contempt was Ms Corbett's non-compliance with the certified order of the ADT. Once filed in the registry of the Supreme Court, the certificate for the order was deemed to operate as 'a judgment of that Court' by s 114 of the Anti-Discrimination Act 1977. Ordinarily, an order made by a Supreme Court is valid and enforceable until set aside.

On 3 February 2017, the NSW Court of Appeal held that NCAT did not have jurisdiction to determine disputes between residents of different states but rejected the Commonwealth's primary reason for this (an implication from the Constitution) and accepted an alternative Commonwealth submission (that flowed from s 109 inconsistency between s 39 of the Judiciary Act 1903 and the state law).

The matter was subsequently appealed to the High Court of Australia. The High Court unanimously dismissed the appeals from the NSW Court of Appeal and held that certain provisions of the Civil and Administrative Tribunal Act 2013 (NSW) were invalid to the extent that they purported to confer jurisdiction on NCAT in relation to matters between residents of different states (s 75 (iv)).

This matter is significant as it confirms that state tribunals cannot exercise judicial powers to determine any of the matters dealt with in s 75 and s 76 of the Constitution including the matters:

  • in which the Commonwealth is a party (s 75(iii))
  • arising under the Constitution or involving its interpretation (s 76(i))
  • arising under any Commonwealth law (s 76(ii))
  • in which the parties are residents of different states (s 75(iv)).

The department is preparing policy advice on the approaches that may be adopted by the Commonwealth to address the implications of this case.

Re: Kelvin (2017) FamCAFC 258
In 2017, the then Attorney-General intervened in the matter of Re: Kelvin,a special case stated to theFull Court of the Family Court of Australia and made submissions arguing for a change in the law to remove the need for family court involvement in decisions about administering stage two hormone treatment to children suffering gender dysphoria. The Attorney-General argued that, absent controversy, such decisions fall within the normal bounds of parental responsibility, and competent children should also able to consent to treatment (that is, where the child is Gillick competent). The Full Court of the Family Court of Australia delivered its judgment on 30 November 2017 and, adopting many of the Attorney-General's submissions in this case, departed from its previous decision in Re :Jamie. Following the decision in Re Kelvin, absent controversy, parents and Gillick-competent children are able to consent to stage two hormone treatment for gender dysphoria without court involvement. The decision of the Full Court, in the main, aligned with the then Attorney-General's submission.

This decision is significant in that, in appropriate circumstances, authorisation for treatment of gender dysphoria is within the bounds of parental responsibility and that young people with gender dysphoria can access medical treatment without involvement of the court. This decision has subsequently been followed and expanded on by the court in the decision of Re: Matthew (2018) FamCA 161, where the court held that is not required to determine for stage 3 surgical treatment of gender dysphoria that a child is Gillick-competent to consent when the treating practitioners agree the treatment is therapeutic and that the child is competent.

Alley v Gillespie (2018) HCA 11
During the course of the reporting year, Common Informers (Parliamentary Disqualifications) Act 1975 was the subject of scrutiny from the High Court in the matter of Alley v Gillespie (2018) HCA 11. The plaintiff commenced a common informer action that, as a preliminary matter, required a determination whether the defendant was incapable of sitting as a member of the House of Representatives for the purposes of s 44 of the Constitution. The matter raised the question whether the High Court had jurisdiction to determine the eligibility of a member of the House of Representatives in a common informer action.

Consistent with the Commonwealth's position, the High Court decided that whether a person is incapable of sitting as a member of the House of Representatives by reason of the Constitution is a question to be determined by that House, unless it resolves to refer the matter to the Court of Disputed Returns pursuant to s 376 of the Commonwealth Electoral Act 1918.

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Reports by parliamentary committees

Parliamentary Joint Standing Committee on Treaties

Extradition - Jordan

Report 177 of the Joint Standing Committee on Treaties on the extradition and mutual assistance treaties that Australia negotiated with the Hashemite Kingdom of Jordan was presented to Parliament on 15 February 2018. Recommendation 2 of the report is that the department supplement its current annual reporting framework with information about people extradited from Australia in order to provide additional transparency on the operation of the extradition regime. Following government acceptance of this recommendation, the department will include in this and future annual reports de-identified statistical information in relation to Australian nationals extradited by Australia. This information will cover whether a trial has taken place, the verdict handed down, the sentence imposed and the total number of extradited Australian nationals who are receiving consular assistance.

Parliamentary Joint Committee on Intelligence and Security

Review of Foreign Influence Transparency Scheme Bill 2017

The PJCIS tabled its report on the Foreign Influence Transparency Scheme Bill on 25 June 2018. The Bill provides transparency for the government and the Australian community of the nature, level and extent of foreign influence in political and governmental processes in Australia. The Bill established for the first time in Australia a scheme requiring registration of persons seeking to influence Australia's political or governmental processes on behalf of a foreign principal. The government accepted all 52 recommendations and introduced amendments into the House of Representatives on 26 June 2018 to implement the recommendations. The legislation was passed on 28 June 2018.

Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017

The PJCIS tabled its report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill on 7 June 2018. The government accepted all 60 recommendations and introduced amendments into the House of Representatives on 26 June 2018 to implement the recommendations. The legislation was passed on 28 June 2018.

Review of the 'Declared Area' Provisions and Review of police stop, search and seizure powers, the control order regime and the preventative detention order regime

On 1 March 2018, the PJCIS tabled two reports into the counter-terrorism provisions: a review into police stop, search and seize powers, the control order regime and the preventative detention order regime (PJCIS Powers Report) and a report into the declared areas provisions (PJCIS Declared Areas Report). On 16 October 2017, three related reports of the Independent National Security Legislation Monitor (INSLM) were tabled: the review of the declared areas provisions, the review of Divisions 104 and 105 of the Criminal Code (including the interoperability of the control order regime with the continuing detention order regime in Division 105A of the Criminal Code), and the review of Division 3A of Part IAA of the Crimes Act 1914 (2017 INSLM Review).

In response, the department, in consultation with the Department of Home Affairs, developed the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018, which was introduced on 24 May 2018. The Bill extends the operation of counter-terrorism provisions in the Criminal Code, the Crimes Act 1914 and the Australian Security Intelligence Organisation Act 1979 (ASIO Act) ahead of their expiry in September 2018. The Bill ensures that law enforcement and security agencies have access to these provisions to respond to the threat of terrorist activities in Australia. The Bill implements the first part of the government's response to the recommendations made by the PJCIS and INSLM reviews. The Bill passed the House of Representatives on 25 June 2018. The department and the Department of Home Affairs will develop legislation for introduction in late 2018 to implement the remaining recommendations.

Senate Economics References Committee

On 28 March 2018, the Senate Economics References Committee released its report following an inquiry into Australia's foreign bribery arrangements. The committee made 22 recommendations, including recommendations to strengthen the legal and enforcement frameworks against foreign bribery and building a culture of integrity and compliance. The committee supported the reforms in the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017.

Senate Standing Committee on Legal and Constitutional Affairs

Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017
On 20 April 2018, the Senate Select Committee reported on the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 and made four recommendations. The Bill will enhance the tools available to law enforcement to tackle corporate crime, including bribery of foreign public officials. The Bill will strengthen existing foreign bribery laws and introduce a new corporate offence of failing to prevent foreign bribery. The Bill also introduces a deferred prosecution agreement scheme for serious corporate offences.

Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017
This Bill amends a range of Commonwealth criminal laws to improve the effectiveness of Commonwealth criminal justice arrangements. For example, the Bill will amend the Australian Federal Police Act 1979 to enable the Australian Federal Police to cooperate with international organisations and non-government organisations. It amends the Crimes Act 1914 to clarify the custody notification obligations of investigating officials when they intend to question Aboriginal and Torres Strait Islander peoples. It also authorises the collection, use and disclosure of information for the purposes of preventing, detecting, investigating or dealing with fraud or corruption against the Commonwealth. On 8 August 2017, the Senate Standing Committee reported on the Bill and made two recommendations, which were implemented, as well as a subsequent recommendation that the Bill be passed.

Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017
On 14 September 2017, the Senate referred the Bill to the committee. The Bill introduces new offences and a new injunction power to prohibit and restrain conduct amounting to false representation of a Commonwealth body. The purpose of the legislation is to promote public confidence in all communications from Commonwealth bodies. On 13 November 2017, the Senate Standing Committee reported on the Bill and recommended that the Bill be passed without amendment.

Family Law Amendment (Parenting Management Hearings) Bill 2017
On 26 March 2018, the Senate Legal and Constitutional Affairs Legislation Committee tabled its report on the Bill. The Committee recommended that the Bill be passed, subject to the government considering and, where appropriate, actioning six recommendations.

Family Law Amendment (Family Violence and Other Measures) Bill 2017
On 20 April 2018, the Senate Legal and Constitutional Affairs Legislation Committee tabled its report on the Family Law Amendment (Family Violence and Other Measures) Bill 2017. The Committee recommended that the Bill be passed. The Opposition made a dissenting report with three recommendations, and the Australian Greens published additional comments with two recommendations, which the Government has considered.

The Government responded to the Committee's report when it introduced amendments to the Bill during the Spring 2018 sitting period. The amendments removed measures from the Bill which would have criminalised breaches of family law personal protection injunctions, with a view to reconsidering this issue following the Australian Law Reform Commission's comprehensive review of the family law system. This accorded with one of the Opposition's recommendations in its dissenting report to the Senate Committee.

Senate Standing Committee on Regulations and Ordinances

The Attorney-General responded to the Senate Standing Committee on Regulations and Ordinances Monitor Report 1 of 2018 and raised a concern about the Extradition Legislation Amendment (2017 Measures No. 1) Regulations 2017. The Explanatory Statement for the Regulations was amended to reflect the comments from the Senate Standing Committee on Regulations and Ordinances. The matter was concluded in Monitor Report 3 of 2018, dated 21 March 2018.

Standing Committee on Social Policy and Legal Affairs

On 6 December 2017, the Social Policy and Legal Affairs Committee tabled its report: A better family law system to support and protect those affected by family violence. The Committee made 33 recommendations about improvements to the family law system.

Independent Intelligence Review

On 18 July 2017, the Prime Minister released the unclassified report of the 2017 Independent Intelligence Review and announced the government 'accepted the recommendations …as a sound basis to reform Australia's intelligence arrangements'. A number of recommendations will be implemented including the establishment of an Office of National Intelligence, transformation of the Australian Signals Directorate into a statutory agency and boosting Australia's cyber security. Of particular relevance to the department, the government commissioned a Comprehensive Review of the Legislative Frameworks of the National Intelligence Community as recommended by the review. The review will be conducted by Mr Dennis Richardson AO with the support of the department.

External audit

During 2017-18, the ANAO conducted two audits involving the activities of the department:

  • ANAO performance audit: Mitigating Insider Threats through Personnel. The audit considered the efficiency and effectiveness of security vetting services provided by the Australian Government Security Vetting Agency, as well as the compliance of selected entities with personnel security requirements, including the department. The Auditor-General tabled the report on 11 May 2018. Recommendations relevant to the department related to our policy role and support for the Australian Government Security Vetting Agency services as well as the department's personnel security arrangements. The department accepted and is implementing all relevant recommendations.
  • ANAO performance audit: Cyber Resilience. The audit assessed the effectiveness of the management of cyber risks by the Department of the Treasury, the National Archives of Australia and Geoscience Australasia. The ANAO considered the security frameworks these entities were operating and recommended that the Attorney-General's Department, the Department of Home Affairs and the Australian Signals Directorate strengthen the guidance for entities related to mitigation, verification processes and compliance transparency and accountability. The Auditor-General tabled the report on 28 June 2018. Recommendations relevant to the department were agreed and we are undertaking significant reforms to the Protective Security Policy Framework. We will also release a 2017–18 consolidated whole-of-government Protective Security Compliance Report and future reports to improve transparency and accountability. We continue to collaborate with the Department of Home Affairs, the Australian Signals Directorate and other stakeholders to meet cyber security requirements.

Other external scrutiny

The department's operations are subject to scrutiny from a number of external bodies, including the Australian National Audit Office, the Commonwealth Ombudsman, various parliamentary committees and the courts. A number of significant decisions will impact on our operations into the future.

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