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Chapter 12 - External scrutiny

 

External scrutiny

During 2011-12 the department's operations were subject to external scrutiny from the Australian National Audit Office (ANAO), the courts, parliamentary committees, the Commonwealth Ombudsman and the Information Commissioner.

Reports by the Australian National Audit Office

Development and approval of grant program guidelines

The Auditor-General undertook a cross-agency performance audit of the development and approval of grant program guidelines. The performance audit assessed the implementation and effectiveness of the enhanced grants administration requirements relating to the development and approval of new grant guidelines and revision of existing grant guidelines.

The ANAO surveyed all agencies subject to the Financial Management Accountability Act 1997, including the Attorney-General's Department.

The report of the performance audit was tabled in Parliament on 30 May 2012. The department agreed with the findings and in response will incorporate the improvements into internal policy guidance, training material and assurance processes.

Administration of grant reporting obligations

The Auditor-General undertook a cross-agency performance audit of the administration of grant reporting obligations. The performance audit assessed the implementation and effectiveness of the enhanced grants administration requirements for: (i) reporting to the Finance Minister on the awarding of grants within their own electorate by ministers who are Members of the House of Representatives; (ii) reporting to the Finance Minister on instances where ministers have decided to approve a particular grant which the relevant agency has recommended be rejected; and (iii) the website reporting of grants awarded.

The report of the performance audit was tabled in Parliament on 24 January 2012. The department agreed with the findings and in response will review internal controls, guidance and training material to ensure the better practice outlined within the report is incorporated into the department's practices.

Judicial decisions

Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

This was an appeal to the Full Court of the Family Court of Australia in a matter under the Hague Convention on the Civil Aspects of International Child Abduction. The judge at first instance found that the child had acquired habitual residence in Poland.

In allowing the appeal, the Full Court discussed the concept of 'habitual residence' and noted that it was possible to lose habitual residence in one place but not yet acquire it in a new country of residence. Their Honours found that, in the particular circumstances of the case, the primary judge had failed to give sufficient weight to the appellant's evidence that she had begun to make plans to depart from Poland almost as soon as she had arrived. Had that evidence been properly considered, the question of whether there had been a settled common intention to live in Poland would have been answered differently. As a result, the burden of proving that the child had acquired habitual residence in Poland had not been discharged.

State Central Authority v Camden [2012] FamCAFC 45

This was an appeal to the Full Court of the Family Court of Australia in a matter under the Hague Convention on the Civil Aspects of International Child Abduction. The judge at first instance found that the children had not acquired habitual residence in the United Kingdom.

On appeal, the Full Court confirmed that LK v Director-General, Department of Community Services (2009) 237 CLR 582 remained authoritative in determining habitual residence and that Zotkiewicz did not introduce a new two limbed test as seemed to have been assumed at first instance. Accordingly, it was held that the children had been habitually resident in the United Kingdom at the time of their removal and the matter was remitted for a rehearing. The rehearing is due to take place on 30 July 2012.

Momcilovic v The Queen

On 8 September 2011, a majority of the High Court held in Momcilovic v The Queen (Momcilovic) that the relevant Victorian drug trafficking offence was not inconsistent with the Commonwealth drug trafficking offence and therefore was not invalid under section 109 of the Constitution.

Following Momcilovic, in April 2012, the Standing Council on Law and Justice requested the National Criminal Law Reform Committee to undertake work to review existing means for avoiding constitutional inconsistency between Commonwealth criminal laws and state and territory criminal laws and, if necessary, develop new proposals for avoiding such inconsistency.

A majority of the Court in Momcilovic also held valid provisions in the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) requiring courts to interpret Victorian statutory provisions consistently with the human rights set out in the Charter and enabling the Victorian Supreme Court to make a declaration of inconsistent interpretation if statutory provisions could not be interpreted consistently with the Charter rights. The decision does not have implications for the Parliamentary scrutiny regime established by the Commonwealth's Human Rights (Parliamentary Scrutiny) Act 2011.

Commonwealth Director of Public Prosecutions v Poniatowska

The case of Commonwealth Director of Public Prosecutions v Poniatowska has clarified the way in which offences that can be committed by omission (ie failure to perform an act) should be interpreted.

In this case, the respondent, Poniatowska, had previously failed to disclose to Centrelink certain income received from her employer, and had received parenting payments to which she was not entitled as a result. The respondent pleaded guilty to the Criminal Code Act 1995 offence of obtaining a financial advantage from a Commonwealth entity that she was not eligible to receive, but successfully appealed her conviction to the Full Court of the Supreme Court of South Australia on the grounds that she was not under a legal duty to report her income to Centrelink.

The Commonwealth Director of Public Prosecutions subsequently appealed this decision to the High Court of Australia. The High Court dismissed the appeal and found that omissions cannot be part of a criminal offence unless the offence criminalises the failure to do a specific thing, such as lodge a tax return or comply with a notice or the person is under a legal obligation to perform the particular act which they omitted to do. For Commonwealth offences, the relevant legal obligation must be one imposed by a law of the Commonwealth.

This case provides guidance on the interpretation of offences that seek to criminalise omissions and is of significance to the development of future Commonwealth offences.

R v Khazaal

On 10 September 2008 in the Supreme Court of New South Wales, Mr Khazaal was found guilty of making a document connected with a terrorist act, knowing of that connection, in contravention of section 101.5 of the Criminal Code. Mr Khazaal was sentenced on 25 September 2009 to twelve years imprisonment with a non-parole period of nine years. Mr Khazaal appealed his conviction and sentence, and on 9 June 2011, the New South Wales Court of Criminal Appeal set aside his conviction and ordered a retrial. The Commonwealth Director of Public Prosecutions appealed this decision, and the appeal was heard in the High Court on 2 March 2012. The High Court reserved its decision.

R v Ahmed & Ors

On 4 August 2009, five men in Victoria were charged with the offence of conspiring to do acts in preparation for a terrorist act under the Criminal Code. On 23 December 2010, the jury acquitted two men and found the other three men guilty of terrorism-related offences under the Criminal Code. On 16 December 2011, the Victorian Supreme Court sentenced Mr Fattal, Mr El Sayad and Mr Aweys to imprisonment for a period of eighteen years, with a non-parole period of thirteen years and six months. This decision is currently under appeal. Subsequent to the reporting period, the High Court upheld the appeal and Mr Khazaal was taken into custody.

ASIC v Hellicar and Ors

A number of judicial decisions in 2011-2012 referenced the Commonwealth's obligation to act as a model litigant in the handling of claims and litigation brought by or against the Commonwealth, as required by paragraph 4.2 and Appendix B of the Legal Services Directions 2005. The most significant was the High Court decision in ASIC v Hellicar & Ors [2012] HCA 17, handed down on 3 May 2012. This case was an appeal by ASIC of the NSW Court of Appeal matter of Morley & Ors v ASIC [2010] NSWCA 331 in which the Court of Appeal found that ASIC, already bound by its obligation to act as a model litigant, also owed an obligation of fairness which required it to call a particular witness to give evidence.

In its reasoning, the High Court noted the Commonwealth's acceptance that ASIC, as a model litigant, is subject to an obligation to conduct litigation 'fairly, with complete propriety, and in accordance with the highest professional standards'. But the High Court did not accept the reasoning of the Court of Appeal that such an obligation required ASIC to call particular evidence. Nor did it accept that a breach of that obligation resulted in the discounting of evidence called to support ASIC's case.

The High Court noted that the procedural rules that govern all litigants apply uniformly to model litigants, without modification. The model litigant obligation does not extend to the question of which witnesses the Commonwealth should call, nor does the failure of a Commonwealth regulator to call a particular witness result in a breach of the obligation of fairness, nor result in the Commonwealth's case suffering in its cogency. The Court reinforced that the obligation to act as a model litigant specifically requires the Commonwealth and its agencies to act in accordance with traditional standards of fair play: to act fairly, with complete propriety, and in accordance with the highest professional standards in conducting litigation.

Optus v National Rugby League

On 2 February 2012, the Federal Court found that Optus did not infringe the copyright in television broadcasts of Australian Football League (AFL) and National Rugby League (NRL) games by providing its Optus TV Now service. Telstra was included in the litigation as an exclusive licensee of both the NRL and AFL. The Federal Court found that the recording fell within the exception found in s 111 of the Copyright Act 1968. Section 111 permits a person to record a television or radio broadcast for private and domestic purposes for watching at a more convenient time; an activity otherwise known as 'time-shifting'.

On 27 April 2012, the Full Federal Court decided the appeal in favour of the NRL, AFL and Telstra against Optus. The Court placed a different emphasis on the case, looking at who 'made' the copy of the broadcast. The Court found that the copy of the broadcast was made either by Optus alone or, its preferred view, by Optus and the Optus subscriber acting together in concert. The Court concluded that if Optus alone was the maker, it had infringed the copyright in the broadcasts.

Following the Full Federal Court's decision, Optus announced it would indefinitely suspend its TV Now Service. On 10 May 2012, Optus announced that it would seek special leave to appeal to the High Court. A hearing date has not yet been set.

Phonographic Performance Company Australia Ltd v Commonwealth [2012] HCA 8

On 17 February 2010 Phonographic Performance Company Australia (PPCA) and the four major record companies (EMI, Sony, Universal and Warner) initiated proceedings in the High Court contesting the constitutionality of sections of the Copyright Act 1968 that provide a compulsory licence allowing radio stations to play sound recordings but also place statutory price caps on the amount of royalties that radio broadcaster pay to sound recordings copyright owners.

The plaintiffs argued that contrary to s 51(xxxi) of the Constitution, ss 109, 152(8) and 152(11) of the Copyright Act 1968 acquired property in their copyright in sound recordings (derived from the 1911 Act) other than on just terms and were invalid.

The High Court rejected the plaintiffs' arguments and accepted the Commonwealth's submission that under the transitional arrangements for commencement of the 1968 Act copyrights previously subsisting in sound recordings had been terminated and replaced by new copyrights to which the compulsory licensing system and caps on royalties were immediately attached. The question of 'just terms' did not arise, as there was no acquisition of property.

Salo

In April 2010 the film Salo was classified R18+ by the Classification Board. That classification was upheld by the Classification Review Board in May 2010 following a request for review. FamilyVoice Australia appealed the Review Board's decision in the Federal Court under the Administrative Decisions Judicial Review (ADJR) Act 1975. On 31 August 2011 judgment was delivered by Justice Stone in favour of the respondent, that the application by FamilyVoice be dismissed.

Roadshow Films Pty Ltd v iiNet Limited

In November 2008 the Australian Federation Against Copyright Theft (AFACT), a film industry coalition, initiated proceedings in the Federal Court alleging that iiNet authorised copyright infringement by failing to take reasonable steps to prevent known infringing activity of its subscribers. This was the first Australian case in which the authorisation liability provisions in the Copyright Act have been tested against an internet service provider (ISP).

In February 2010, the Court found that while iiNet did have knowledge of infringements, and did not act to stop them, it did not authorise the infringement. AFACT appealed the decision. In February 2011, the Full Federal Court dismissed the appeal. In August 2011, AFACT was granted special leave to appeal the Full Federal Court decision in the High Court. The key grounds of appeal were whether the Full Federal Court had erred in finding that iiNet had not authorised infringement, and whether iiNet had sufficient knowledge of infringement. The High Court unanimously held that the ISP, iiNet, was not 'authorising' copyright infringement.

The Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellant's films. Rather, the extent of iiNet's power to prevent its customers from infringing the appellant's copyright was limited to an indirect power to terminate its contractual relationship with its customers.

PJ v the Queen (Supreme Court of Victoria Court of Appeal) 2012

This appeal from an interlocutory decision of the Victorian County Court concerned the construction of the aggravated offence of organising or facilitating the bringing or coming of a group of at least five persons to Australia who do not have a lawful right to enter Australia under section 233C of the Migration Act 1958. The Court of Appeal found that proof of the offence requires the prosecution to establish that the accused was aware that Australia was the destination of the journey which he or she is alleged to have facilitated.

Reports by parliamentary committees

Senate Standing Committee on Community Affairs

Inquiry into the Commonwealth Contribution to Former Forced Adoption Policies and Practices

The department assisted the Senate Inquiry into the Commonwealth Contribution to Former Forced Adoption Policies and Practices by appearing before the Inquiry on 28 September 2011. Public hearings and submissions to the Inquiry highlighted personal accounts from adoptees and their birth parents of their experiences of inappropriate practices. The department responded to the Inquiry's questions about the lawfulness of forced adoptions and the role of the Commonwealth in developing uniform adoption laws in the 1960s.

The Inquiry's Report was tabled in the Senate on 29 February 2012. The Report contains twenty recommendations. A key recommendation is for the Australian Government to offer a formal apology on behalf of the nation to the people affected. Other recommendations include that the:

  • Commonwealth should set up a national framework for how to respond to the consequences of forced adoption
  • state and territory governments and institutions should provide funding for support services
  • work should be undertaken to improve records of the time, and access to those records.

The Attorney-General announced on 23 June 2012 that the Australian Government will issue a formal apology to those affected by forced adoption practices. The Attorney-General also announced the establishment of a Reference Group to assist in developing the apology. The Reference Group will comprise parliamentarians and stakeholder representatives, including birth parents and adoptees, and will be chaired by former Family Court of Australia judge, Professor Nahum Mushin. The group will provide advice on the wording and delivery of the apology.

The department is working closely with stakeholders to assess how all the recommendations can be implemented and is coordinating the Government's response to the Inquiry's Report.

House of Representatives Standing Committee on Social Policy and Legal Affairs

Inquiry into the Crimes Legislation Amendment (Powers and Offences) Bill 2011

The Crimes Legislation Amendment (Powers and Offences) Bill 2011 was referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs on 24 November 2011. The Committee tabled its report on 29 February 2012. The Government accepted nine of the ten recommendations made by the Committee, including making Government amendments to the Bill to implement additional safeguards around Australian Crime Commission information disclosure powers. The Bill was passed on 20 March 2012. Further work is being undertaken with respect to the Committee's recommendations that consideration be given to establishing a federal parole board, and that an audit of security and law enforcement agencies' investigative and coercive powers be undertaken.

Inquiry into the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011

On 7 July 2011, the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 was referred to the Standing Committee on Social Policy and Legal Affairs for inquiry and report. The Committee's report was tabled in Parliament on 12 September 2011. The Committee made four recommendations, including that the Bill be passed by the House of Representatives. The Government response to the Report was provided during debate on the Bill in the House of Representatives Main Committee on 19 September 2011. The Government accepted the majority of the Committee's recommendations including that any substantive breach of an undertaking from a foreign country be reported to the Parliament and that the department will commence a review into the operation of the amendments contained in the Bill within three years of its enactment (Recommendations 3 and 4). The Government did not accept Recommendation 2 that consideration be given to removing the presumption against bail in the Extradition Act 1988. The Government response noted that the current position on bail in the Extradition Act strikes the correct balance in recognising that in extradition cases there is an increased risk of persons absconding before they can be surrendered to the requesting foreign country, but also allows for bail to be granted in special circumstances.

The Bill was passed by Parliament on 29 February 2012 and received Royal Assent on 20 March 2012.

Inquiry into the regulation of billboard and outdoor advertising

The report of the House of Representatives Standing Committee on Social Policy and Legal Affairs, Reclaiming Public Space: Inquiry into the regulation of billboard and outdoor advertising, was tabled on 4 July 2011.

The Committee's recommendations were referred to the ALRC to take into account during its review of the National Classification Scheme. The ALRC's report of that review was tabled on 1 March 2012. The Government is considering its response to the ALRC's Report.

Statement on the Legislative Instruments Amendment (Sunsetting) Bill 2011

On 18 August 2011 the House of Representatives Standing Committee on Social Policy and Legal Affairs made a statement on the Legislative Instruments Amendment (Sunsetting) Bill 2011, in discharge of the Committee's requirement to provide a report on the Bill.

The Committee did not receive any submissions and determined not to hold public hearings. The Committee recommended that the House of Representatives pass the Bill without amendment.

Statement on the Access to Justice (Federal Jurisdiction) Amendment Bill 2011

On 13 February 2012, the House of Representatives Standing Committee on Social Policy and Legal Affairs made a statement on the Access to Justice (Federal Jurisdiction) Amendment Bill 2011, in discharge of the Committee's requirement to provide a report on the Bill.

The Committee noted that the Senate Legal and Constitutional Affairs Legislation Committee was conducting a public inquiry into the Bill and that duplication was likely from a further inquiry. The Committee agreed not to further inquire into the Bill.

Inquiry into the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012

On 14 March 2012 the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and the Courts Legislation Amendment (Judicial Complaints) Bill 2012 were referred to the House Committee on Social Policy and Legal Affairs for inquiry and report.

The Committee reported on 25 June 2012 and recommended that the Bills pass the House without amendment. Debate in the House of Representatives on the Bills commenced on 28 June 2012. No amendments had been made to the Bills at 30 June 2012.

Senate Legal and Constitutional Affairs Committee

Inquiry into the Access to Justice (Federal Jurisdiction) Amendment Bill 2011

On 29 March 2012, the Senate Legal and Constitutional Affairs Committee released the report of its inquiry into provisions of the Access to Justice (Federal Jurisdiction) Amendment Bill 2011. The inquiry considered only Schedules 2, 3 and 4 of the Bill as the other Schedules were supported by the organisations that commented on those aspects of the Bill.

The Schedules considered by the Committee include provisions relating to suppression and non-publication orders (Schedule 2), vexatious proceedings orders (Schedule 3) and aligning the jurisdictional limit for matters heard by the Family Law Magistrates in Western Australia with that of Federal Magistrates Court (Schedule 4).

The Committee recommended the Senate pass the Bill without amendment.

Inquiry into the National Classification Scheme

The report of the Senate Legal and Constitutional Affairs Committee, Review of the National Classification Scheme: Achieving the Right Balance, was tabled on 23 June 2011.

The Committee's recommendations were referred to the Australian Law Reform Commission (ALRC) to take into account during its review of the National Classification Scheme. The ALRC's report of that review was tabled on 1 March 2012. The Government is considering its response to the ALRC's Report.

Inquiry into the Classification (Publications, Films and Computer Games) Amendment
(R 18+ Computer Games) Bill 2012

The Senate Legal and Constitutional Affairs Committee tabled its report on the Classification (Publications, Films and Computer Games) Amendment (R 18+ Computer Games) Bill 2012 on 22 March 2012. The Committee recommended that the Bill be passed.

The Bill was passed by Parliament on 18 June 2012 and received Royal Assent on 6 July 2012. The Bill commences on 1 January 2013.

Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Online Games) Bill 2011

The Classification (Publications, Films and Computer Games) Amendment (Online Games) Bill 2011 was passed by the House of Representatives on 2 November 2011 and was referred to the Senate Legal and Constitutional Affairs Committee. The Committee tabled its report on the Bill on 9 February 2012. The Committee recommended that the Senate pass the Bill. The Bill has not yet been debated by the Senate.

Inquiry into the Crimes Legislation Amendment Bill (No.2) 2010

The Crimes Legislation Amendment Bill (No. 2) 2011 was referred to the Senate Standing Committee on Legal and Constitutional Affairs on 23 June 2011. The Committee released its report on the Bill on 23 August 2011. The Government agreed to all of the Committee's recommendations either in full or in principle.

The Bill was passed by Parliament on 22 November 2011 and received Royal Assent on 5 December 2011.

Inquiry into the Human Rights (Parliamentary Scrutiny) Bill 2010 and Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010

The Bills were passed unamended on 25 November 2011 and became law on 4 January 2012. The Senate Legal and Constitutional Affairs Committee had recommended that the Bills should be passed, subject to some proposed amendments and other certain non-legislative measures. The Government will be further considering the Senate Committee's recommendations as part of the review of Australia's Human Rights Framework in 2013-14. By this time, there will be a body of work by the Parliamentary Joint Committee on Human Rights to assess as well as experience in the public sector and the Parliament with statements of compatibility.

Social Security Amendment (Supporting Victims of Terrorism Overseas) Act 2012

On 22 March the Senate referred the Social Security Amendment (Supporting Victims of Terrorism Overseas) Bill 2011 (the Bill) to the Senate Legal and Constitutional Affairs Committee. Submissions were sought and a public hearing held on 19 April 2012. On 10 May 2012, the Committee tabled its Report which included seven Recommendations. The Government adopted all of the recommendations except one. The Bill was passed and received Royal Assent on 22 July 2012.

Inquiry into the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill

On 30 May 2012, the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill was introduced into the House of Representatives. On 19 June 2012, the Senate referred the Bill to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report. The Committee is due to release its report on the Bill on 13 September 2012.

Inquiry into the detention of Indonesian minors in Australia

On 10 May 2012 the Senate referred the matter of detention of Indonesian minors in Australia to the Senate Legal and Constitutional Affairs Committee for inquiry. The department and AFP provided a joint submission to the inquiry.

Senate Legal and Constitutional Affairs Legislation Committee

Inquiry into the Australian Human Rights Commission Amendment (National Children's Commissioner) Bill 2012

The Australian Human Rights Commission Amendment (National Children's Commissioner) Bill 2012 was referred to the Senate Legal and Constitutional Affairs Legislation Committee on 23 May 2012, with the report handed down on 18 June 2012. The report recommended that the Bill be passed.

Coalition senators supported the Bill with the caution that the Commissioner must complement and support the work of state and territory children's commissioners.

The Australian Greens supported the Bill but made the following recommendations, which were not adopted:

  1. The Bill be amended to explicitly to include the Convention Against Torture and Cruel, Inhumane or Degrading Treatment or Punishment and the Optional Protocol to this Convention; the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.
  2. The reporting function should include an additional requirement on the Commissioner to report on Australia's level of compliance with its human rights obligations under the Convention on the Rights of the Child.
  3. The Explanatory Memorandum should be amended to explicitly include asylum seeker and refugee children as examples of vulnerable and at risk groups of children.

The Bill was passed by Parliament on 25 June 2012 and commenced on 1 July 2012.

Inquiry into the Deterring People Smugglers Bill 2011

The Deterring People Smuggling Bill 2011 was introduced into Parliament on 1 November 2011. It was referred to the Senate Standing Committee on Legal and Constitutional Affairs on 3 November 2011 for inquiry and report. The Bill sought to amend the Migration Act 1958 to clarify that a non-citizen has, at a particular time, no lawful right to come to Australia if at that time the person does not meet requirements for lawfully coming to Australia under domestic law, and apply this clarification retrospectively to 16 December 1999. The Department provided a submission to the inquiry and appeared before the Committee in a public hearing on 11 November 2011. The Committee released its report on the Bill on 21 November 2011. The Government agreed to all of the Committee's recommendations. The Bill was passed by Parliament on 25 November 2011 and received Royal Assent on 29 November 2011.

Crimes Amendment (Fairness for Minors) Bill 2012

On 23 November 2011, the Greens introduced the Crimes Amendment (Fairness for Minors) Bill 2011. The Bill proposes to remove wrist X-rays as an age determination procedure, impose strict timeframes for the AFP to conduct age determination processes and lay charges, and create a presumption of age for persons suspected of people smuggling who claim to be minors. The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee on 25 November 2011. The Department, AFP and CDPP provided a joint submission to the inquiry and appeared before the Committee in a public hearing on 16 March 2012.

The Committee released its report on 4 April 2012. It recommended that the Government review AFP procedures for laying charges, introduce legislation to clarify that the prosecution bears the burden of proof in age disputes, and review options for legal representatives to gather age evidence. The Committee also recommended that the Senate should not pass the Bill.

Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012

On 8 February 2012, the Greens introduced the Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012 into the Senate. The Bill would remove mandatory minimum penalties for aggravated people smuggling offences under the Migration Act. The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee on 9 February 2012. The Department provided a submission to the inquiry and appeared before the Committee in a public hearing on 16 March 2012.

The Committee released its report on 4 April 2012. It recommended that the Australian Government review the operation of the mandatory minimum penalties applied to aggravated people smuggling offences, and facilitate and support further deterrence and awareness raising activities in relation to people smuggling offences. The Committee also recommended that the Senate should not pass the Bill.

Inquiry into the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

On 25 March 2011 the Family Law Legislation Amendment (Family Violence and Other Measures Bill 2011 was referred to the Senate Legal and Constitutional Affairs Committee (Senate LACA Committee) for inquiry and report.

The Senate LACA Committee reported on 22 August 2011 making eight recommendations, including that the Bill be passed by the Parliament. The Government responded to the recommendations by moving amendments to the Bill during debate in the Senate, and agreeing to conduct an education campaign to promote the changes.

Following passage by the House of Representatives on 30 May 2011, the legislation was introduced into the Senate on 14 June 2011. The Senate passed the legislation on 22 November 2011 with amendments. The amendments from the Senate were then considered and passed by the House of Representatives on 24 November 2011.

Senate Legal and Constitutional Affairs References Committee

Inquiry into the incidence of international child abduction to and from Australia

The issue of international child abduction was referred to the Senate Legal and Constitutional Affairs References Committee on 11 May 2011 and the Committee tabled its report on 31 October 2011.

The Government response was tabled on 30 March 2012 and accepted all recommendations - in full, in part or in principle. The Senate report was a timely reminder that, while Australia provides one of the highest levels of support to families affected by international parental child abduction, there always remains room for continued improvement.

As part of its response, the Government is working with organisations such as the Law Council of Australia and International Social Service (ISS) Australia to improve services and information available in the community. The Attorney-General announced on 26 March 2012 that ISS would be funded to give Australian parents dealing with the abduction of their child from Australia free legal assistance. The new legal assistance service complements the counselling and mediation service already provided by ISS and funded by the department. The Government's new funding agreement with ISS provides a national service to help parents prepare and lodge applications from Australia for the return of, or access to, children under the Convention.

The Government has also provided a grant of $50,000 to the Law Council to prepare a resource for legal practitioners about international parental child abduction.

Parliamentary Joint Committee on Law Enforcement

Examination of the Annual Report of the Australian Crime Commission 2009-10

On 22 August 2011, the Parliamentary Joint Committee on Law Enforcement (PJCLE) released its report on its examination of the annual report of the Australian Crime Commission 2009-2010. The Committee made two recommendations about the Australian Crime Commission's practice of varying controlled operations under Part 1AB of the Crimes Act 1914. The Government tabled its response to the report on 10 May 2012, accepting in part the Committee's recommendations.

Inquiry into Commonwealth unexplained wealth legislation and arrangements

In February 2010, the Government introduced provisions for the making of unexplained wealth orders, as part of a suite of new laws to combat organised crime. These laws are designed to target senior organised crime figures who often derive large profits from illegal activity but distance themselves from the commission of actual offences.

On 13 July 2011, the PJCLE initiated an inquiry into Commonwealth unexplained wealth legislation and arrangement. The department and portfolio agencies actively assisted the Committee during the course of this inquiry, making both written and oral submissions to the Committee.

On 19 March 2012, the PJCLE released the Final Report of its inquiry into Commonwealth unexplained wealth legislation and arrangements, which makes eighteen recommendations aimed at enhancing the pursuit of unexplained wealth. The department will work closely with other relevant agencies in preparing a response to the recommendations.

Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime

On 16 June 2011, the PJCLE completed and tabled the report of its Inquiry into the Adequacy of Aviation and Maritime Security Measures to Combat Serious and Organised Crime. The terms of reference of the inquiry required the committee to examine the effectiveness of current administrative and law enforcement arrangements to protect Australia's borders from serious and organised criminal activity.

The PJCLE's report contained twenty-two recommendations. On 3 November 2011, the Government tabled its response to the report.

The Government has either accepted or noted nineteen of the twenty-two recommendations made by the inquiry.

In May 2012, the Minister for Home Affairs and Justice announced a number of major reforms to make it harder for organised criminals to exploit and infiltrate the waterfront and the private sector supply chain. These reforms will implement a number of the PJCLE's recommendations.

Inquiry into the gathering and use of criminal intelligence

On 30 May 2012, the PJCLE initiated an Inquiry into the gathering and use of criminal intelligence. The department is developing a submission for the Committee.

Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity

Inquiry into the operation of the Law Enforcement Integrity Commissioner Act 2006.

On 14 May 2009, the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity (PJC-ACLEI) initiated an inquiry into the operation of the Law Enforcement Integrity Commissioner Act 2006. Its final report, released on 7 July 2011, made ten recommendations relating to extension to ACLEI's jurisdiction, additional proposed amendments to the LEIC Act 2006; and the Commonwealth integrity framework, including gaps, areas of overlap, and possible measures for improvement. The Government tabled its response on 9 February 2012. The report's recommendations were either accepted in full, in part, in principle, or were noted.

On 21 November 2011, the PJC-ACLEI released its report on its inquiry into integrity testing. The report made eight recommendations, including the introduction of targeted integrity testing for the Australian Federal Police, Australian Crime Commission and Australian Customs and Border Protection Service, as well as recommendations regarding the broad scope of integrity testing and associated governance and accountability measures. The Government agreed, or agreed in principle, to all of the recommendations in its response to the report, which was tabled on 30 March 2012. The department is currently working on legislation to implement the Government's response.

On 6 December 2011, the PJC-ACLEI initiated an inquiry into the integrity of overseas Commonwealth law enforcement operations. The department gave evidence to the Committee at its public hearing on 1 March 2012.

Senate Environment and Communications References Committee

Inquiry into the capacity of communication networks and emergency warning systems to deal with emergencies and natural disasters

On 3 March 2011, the Senate referred to the Environment and Communications References Committee to inquire and report on the capacity of communication networks and emergency warning systems to deal with emergencies and natural disasters. The Committee handed down its findings on 23 November 2011.

Recommendations focused on spectrum allocation in the context of interoperability between emergency services; increased collaboration between emergency services and the media; improved access to emergency call services for people with a disability; increased public education on emergency preparedness; and priority access to fuel for public broadcasters during emergencies.

The Australian Government's response to the Committee's report will be tabled in due course.

Senate Economics References Committee

Inquiry into the asset insurance arrangements of Australian state governments

On 3 March 2011, following the floods that occurred in Queensland over the 2010-11 summer, the Senate referred for inquiry issues relating to the insurance of state government assets to the Senate Standing Committee on Economics for report by 22 September 2011. The referral was based on a Notice of Motion from independent Senator Nick Xenophon.

On 22 September 2011, the Senate Standing Committee on Economics released its report, The asset insurance arrangements of Australian state governments. The report contained four recommendations focused on the need to improve transparency in the states and territories' reporting of their insurance and reinsurance arrangements; the need for the Commonwealth Grants Commission to be more thorough in its collection of the states' and territories' natural disaster expenses, including insurance receipts; and the meaning of the term 'cost-effective' in assessing the adequacy of the states' and territories' insurance arrangements.

The Australian Government's response to the Committee's report will be tabled in due course.

House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs

Report tabled, Doing Time - Time for Doing: Indigenous Youth in the Criminal Justice System

On 20 June 2011, the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs tabled its report entitled Doing Time - Time for Doing: Indigenous Youth in the Criminal Justice System. The report made forty recommendations addressing connections between Indigenous contact with the criminal justice system and the justice, health, education and employment sectors. The Government Response was tabled in Parliament on 24 November 2011 with the Government accepting in whole, in part or in principle all forty of the Report's recommendations. The Australian Government is working on implementing the recommendations, including raising the issues with state and territory governments through appropriate Ministerial Councils.

Australian Greens Senator Rachel Siewert's Native Title Amendment Bill (No. 1) 2010 was considered by the Legal and Constitutional Affairs Legislation Committee in 2011. Representatives from the department appeared before the committee on 16 September 2011. The committee released its final report on 9 November 2011. It recommended that the Senate should not pass the bill.

Joint Standing Committee on Migration

Inquiry into multiculturalism in Australia

On February 2011, the Joint Standing Committee on Migration accepted terms of reference from the Minister for Immigration and Citizenship, the Hon Chris Bowen MP, to inquire into the economic, social and cultural impacts of migration and make recommendations to maximise the positive benefits of migration. The department was invited to appear before the inquiry and make a submission on the Countering Violent Extremism program as it relates to the role of multiculturalism in the Australian Government's social inclusion agenda and supporting the full participation and integration into the broader Australian society of new migrants. On 2 March 2012 the submission was tabled. On 14 March 2012, representatives from the Countering Violent Extremism Unit in the department appeared before the Committee. A supplementary submission was tabled in response to questions asked at the hearing. The final report will be made available once it has been tabled in parliament.

Joint Select Committee on Cyber-Safety

Inquiry into Cybercrime Legislation Amendment Bill 2011

The Cybercrime Legislation Amendment Bill 2011 was referred to the Joint Select Committee on Cyber-Safety on 23 June 2011.

In addition to public hearings, the Committee received twenty-two submissions presenting a range of views. While some submissions provided unreserved support for the Bill, others rejected accession to the Convention. The majority of submissions supported accession but expressed concerns about specific provisions of the Bill. Key issues included individual rights and privacy protections and the capacity of the states and territories to retain and implement relevant enforcement powers within their jurisdictions.

The Committee released its report on 18 August 2011, making thirteen recommendations. The Government has announced its intention to respond to the recommendations in the Senate, including by moving amendments to the Bill.

Joint Standing Committee on Treaties

On 21 June 2012, the Joint Standing Committee on Treaties tabled its report on the review into treaties which were tabled on tabled on 7 and 28 February 2012. This report dealt with the Convention providing a Uniform Law on the Form of an International Will done at Washington DC on 26 October 1973. The Committee recommended that binding treaty action be taken. It concluded that the greater legal certainty of an international will provides practical benefits for testators and beneficiaries.

Nuclear Terrorism Legislation Amendment Act 2012

The National Interest Analysis for the International Convention for the Suppression of Acts of Nuclear Terrorism (the Convention) was tabled in August 2011 before the Joint Standing Committee on Treaties (JSCOT). JSCOT held a public hearing and tabled its report on 22 November 2011, recommending Australia take binding treaty action.

The Nuclear Terrorism Legislation Amendment Act 2012 (the Act) gives effect to Australia's outstanding obligations under the Convention. The Act, which amends the Nuclear Non-Proliferation (Safeguards) Act 1987 and the Extradition Act 1988 received Royal Assent in March 2012.

Ratifying the Convention sends a strong message to the international community demonstrating Australia's continued commitment to addressing the threat of terrorism. In addition, it strengthens Australia's case in encouraging regional countries to ratify the sixteen international counter-terrorism instruments.

Inquiry into the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment

On 21 June 2012, the Joint Standing Committee on Treaties tabled its report on the review into treaties tabled on 7 and 28 February 2012. The report includes the Committee's assessment of the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment (the 'Optional Protocol'). The Optional Protocol establishes a two-pronged system for inspecting Australian places of detention: by designated inspectorates, or 'national preventative mechanisms' (NPMs); and by the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT). The Committee supports the Optional Protocol and recommended that Australia take binding treaty action. The Committee noted that international practice has shown the integrated and recognised systems of monitoring established under the Optional Protocol improve outcomes for detainees and achieve practical benefits for State parties. The Committee also noted that in addition to the human rights benefits, monitoring under the Optional Protocol has the potential to minimise the financial cost of instances of mistreatment, including by avoiding litigation and compensation expenses.

The Committee also recommended that the Australian Government work with the states and territories to implement a national preventive mechanism fully compliant with the Optional Protocol as quickly as possible on ratification of the Optional Protocol, recognising that the Optional Protocol allows States to delay the implementation of the NPM for a number of years.

Australian Human Rights Commission

Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children

On 21 November 2011, the Australian Human Rights Commission (AHRC) announced an inquiry into the treatment of people smuggling crew who claim to be minors. The Department, the AFP and CDPP provided a joint submission to the inquiry. Officers from the Department and other Commonwealth agencies appeared before the Commission at hearings in Canberra on 19-20 April 2012.

Other reports

Independent review of the Family Law Pathways Networks

The department commissioned Encompass Family and Community Pty Ltd to undertake an independent review of the Family Law Pathways Networks. The networks foster collaboration between agencies, at a local level, including family law courts, lawyers, family relationship services, legal assistance services, and child support. The review confirmed that the Family Law Pathways Networks enable an integrated family law system to operate effectively at the local level, actively contribute to reducing family law matters ending up in court and provide a level of support and referral for families at whatever stage they are at within the family law system.

Report of the United Nations Special Rapporteur on Trafficking in Persons, especially women and children

In November 2011, the department coordinated a visit by the United Nations Special Rapporteur on Trafficking in Persons, especially women and children, Dr Joy Ngozi Ezeilo. In her report, tabled at the 20th session of the UN Human Rights Council in June 2012, the Special Rapporteur recognised Australia as a regional leader in combating trafficking and commended our strong working relationship with civil society. The Special Rapporteur made eighty-six recommendations to the Australian Government, the majority of which have been accepted or partially accepted by the Government. The department is currently working with members of the Anti-People Trafficking Interdepartmental Committee to implement a number of the recommendations.

Strategic review of small and medium agencies in the Attorney-General's portfolio (Skehill Report)

In August 2011 Mr Stephen Skehill, a former Secretary of the Australian Attorney-General's Department, was engaged by the Department of Finance and Deregulation to lead a strategic review of small and medium agencies in the Attorney-General's portfolio. The review assessed these agencies with reference to the Expenditure Review Principles of appropriateness, effectiveness, efficiency, integration, performance assessment and strategic alignment, and developed options to improve value for money in the discharge of their functions and decision-making. The review also considered the potential for shared services and administration arrangements.

The Skehill Report was released on 8 June 2012. The report contains forty-six recommendations most of which are being implemented by the Attorney-General's Department or require no further action. Key areas in which the Government is implementing reforms recommended by the report include:

  • improving court administration and collaboration, and identifying efficiencies, through a new consultative committee comprising heads of jurisdiction, heads of administration and other relevant officers, including an observer from the Attorney-General's Department
  • the courts and the Government working more closely on strategic planning for utilisation of court buildings
  • formalising the shared administration arrangement between the Family Court and Federal Magistrates Court and not proceeding with the family law restructure
  • introduction and passage of legislation to enable the transfer of the Office of Legislative Drafting and Publishing to the Office of Parliamentary Counsel
  • improvements to the effectiveness and efficiency of the native title system through the transfer of native title claims mediation from the National Native Title Tribunal to the Federal Court of Australia and through efficiencies in the corporate services areas resulting from locating the administration of the NNTT within the Federal Court
  • establishment of a collaborative process between federal merit tribunals to promote cooperation and identify opportunities for greater efficiency and effectiveness through shared or cooperative arrangements, and
  • engagement of a consultant for initial work on a 'corporate services business offering' to create efficiencies through the provision of shared services for portfolio agencies.

Some recommendations are not supported by the Australian Government. These include recommendations concerning the creation of an Administrative Review Tribunal combining Commonwealth merit review tribunals and a further review on the future financial position of federal courts.

Department of Finance and Deregulation Gateway Review of National Crisis Coordination Capability Program: Australian Government Crisis Coordination Centre Project

The National Crisis Coordination Capability Program Australian Government Crisis Coordination Centre project is subject to the Department of Finance and Deregulation's Gateway Review Process. The reviews for Gates 1, 2 and 3 were conducted in 2009. The review for Gate 4 was conducted from 22 to 26 August 2011 to assess the project's readiness for service.

The Gate 4 review conducted found the overall rating for the project to be 'green', meaning that the project is on target for the effective and timely delivery of outcomes and while there appear to be some findings requiring management attention, these appear readily resolvable. Progress against recommendations made by the independent review panel was reported to and monitored by the Attorney-General's Department's National Crisis Coordination Capability Program Board. The final review, Gate 5, will be conducted in July 2012.

Reports dealing with the operations of the department by the Australian Law Reform Commission

Review of the National Classification Scheme

The ALRC's Report Classification - Content Regulation and Convergent Media (the Report) was tabled in Parliament on 1 March 2012. The Report assessed various aspects of the National Classification Scheme and made fifty-seven recommendations. The department is currently considering the Report's recommendations and will lead the development of the Government response. This will involve consulting the states and territories and also the Department of Broadband Communications and the Digital Economy in relation to relevant recommendations arising from the Convergence review.


 

Our people

Chemical Security Team making Australia safer

goodwill and cooperation - public consultation strengthens our approach to policy development

The Chemicals of Security Concern Program has pioneered a new approach to policy development through its chemical security risk assessments, risk mitigation measures and consultation with industry and the general community.

The chemical team's public consultations have taken them to some of the most remote parts of Australia on over 300 site visits to importers, manufacturers, suppliers, transporters and end users to conduct risk assessments of chemicals commonly used in industry.

'Given that the site visits are voluntary, we appreciate that industry openly welcomes us to view their operations. The success of the Program depends on the goodwill and cooperation of Australian businesses, large and small, to assist in the risk assessments and to provide input on potential control measures', said Ian D'Souza.

'Our consultations were expanded this year when we sought industry and community comment on draft risk mitigation measures through a Regulation Impact Statement (RIS). The draft measures proposed in the RIS are the basis for mitigating the potential misuse of the eleven precursor chemicals to home-made explosives.

'The risk assessments of ninety-six chemicals of security concern are being undertaken progressively and are scheduled for completion by the end of the 2014-15 financial year. So far assessments for twenty-five chemicals have been completed while, at the same time, the department is working with industry sectors identified as high risk to raise awareness of the dangers posed by the chemicals', said Ian.

The methodology and the security outcomes of the chemical assessments have generated considerable external interest, as has the chemical team's development of awareness and capability materials for first responders in Australia.

Following the launch in May this year of an awareness guide for Australia's police, fire and ambulance services about home-made chemical explosives, the department received dozens of enquiries and requests for the guide from many European countries as well as Canada, United States of America, New Zealand and Japan.