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Annual Report 2007-08 Output 1.4

Legal services and policy advice on international law

Summary

The Office of International Law promoted the interests of Australia through the provision of advice on international law and through its implementation of international law in Australian domestic law. We provided advice on a broad spectrum of international law issues and represented Australia in negotiations on treaties and other legal instruments. The advice we provided during the year contributed to achieving the desired outcomes of the Department and other departments.

Major achievements

General international law and advisings

The Office of International Law has provided advice to advance Government initiatives that have an international law element. We advised the incoming Government on Australia’s overseas deployments to Afghanistan, Iraq, the Solomon Islands and Timor Leste (on issues such as rules of engagement, status of forces, immunities and other operational law issues); climate change, including implementation of the Kyoto Protocol and an emissions trading scheme; the NTER; offshore petroleum, including reserves in the Timor Sea; foreign state immunities; international law aspects of domestic court cases; border control; air services agreements; outer space; nuclear issues; and import risk analysis.

The Office of International Law participated in negotiations for a large number of treaties, including the US–Australia Defence Procurement Agreement, the Multilateral Treaty to Regulate the Use of Cluster Munitions, the Australia – European Union Passenger Name Record Agreement, regional fisheries management organisation agreements and the definition of the crime of aggression by the International Criminal Court Assembly of State Parties.

During the past three years, the Department led the Australian delegation to the Commission on the Limits of the Continental Shelf, which, in April 2008, confirmed Australia’s entitlement to an additional 2.56 million square kilometres of continental shelf. The Commission is yet to finally consider another 0.76 million square kilometres.

International trade law

The Department continued to work closely with DFAT in the negotiation of free trade agreements, including with ASEAN, Chile, China, the Gulf Cooperation Council and Japan. The Department’s input focused on copyright law, e-commerce and legal services, investment, dispute resolution and general framework issues.

The Office of International Law also continues to work closely with other agencies on the conduct of World Trade Organization (WTO) litigation. The Office has a key role in defending the case brought by New Zealand against Australia concerning the import of apples. The case will be heard by a dispute settlement panel in 2008–09. We also provided input into Australia’s submissions in those WTO cases in which Australia is a third party, including the Airbus and Boeing cases commenced by the United States and the European Community. The Office was on the Australian delegation to the Airbus dispute panel hearing for third parties in July 2007.

We continue to lead the investment protection negotiations with the Russian Federation. The Office assisted in the establishment of the Australian Maritime and Transport Arbitration Centre, which enables those two industries to access mediation and arbitration. The Office also leads Australia’s delegation to the General Commission of the United Nations Commission for International Trade Law (UNCITRAL) and the UNCITRAL negotiations for instruments on the carriage of goods by sea and new arbitration rules.

International security

In 2007–08, the Office of International Law represented Australia at meetings of the International Civil Aviation Organization (ICAO) to develop protocols to update two of the major aviation security treaties in order to deal with emerging threats to civil aviation. A member of the Office was the Rapporteur for the first major ICAO meeting dealing with these instruments. Australia was successful in gaining the incorporation of a proliferation-related transport offences provision in the draft text. We continued to provide advice on the international legal aspects of the Proliferation Security Initiative, including by attending meetings of operational experts and participating in outreach activities, for example, in the Philippines.

Human rights

The Office of International Law coordinated and participated in Australia’s appearance before the Committee Against Torture in April 2008 in relation to Australia’s Fourth Report under the Convention Against Torture (CAT). The Committee commended Australia for its level of engagement and its detailed answers to questions. In its concluding observations on 16 May 2008, the Committee recognised the importance of several initiatives of the Government, including the national apology to Aboriginal and Torres Strait Islander Australians, its consideration of whether Australia should be a party to the Optional Protocol to the CAT and its changes to Australia’s immigration system.

The Office was also responsible for coordinating and preparing, in conjunction with DFAT, the Australian Core Document in line with the Harmonised Guidelines issued by the United Nations for the Preparation of Reports to UN Treaty Bodies. It was lodged with the United Nations on 25 July 2007 and incorporated Australia’s reports under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Australia’s report under the Convention on the Rights of the Child was circulated for public comment on 6 June 2008. The Report is expected to be finalised and lodged with the United Nations later this year. Australia’s first reports under the two Optional Protocols to the Convention have also been circulated for public comment.

During 2007–08, Australia received four new individual communications under the ICCPR, one under the CAT and two from United Nations Special Procedures. The Human Rights Committee, which monitors the implementation of the ICCPR, adopted views on 10 communications relating to Australia. Violations were found in nine of those cases, although in eight cases the views were adopted concurrently, as the facts of those eight cases were similar. The other case was ruled inadmissible. The Government has responded to the adverse views in all cases. In the one case decided by the Committee established under the Convention on the Elimination of All Forms of Racial Discrimination, no violation was found.

Outlook

The outlook is busy, given that many of the initiatives of the Government since it took office in late 2007 have significant international law dimensions. Those initiatives include Government policies on climate change, emissions trading, the provision of broadband infrastructure, efforts to bring about a cessation of whaling in the Southern Ocean, and significant human rights initiatives, such as the forthcoming consultations on the protection of human rights in Australia and possible acceptance of optional protocols to the Convention on the Elimination of Discrimination Against Women, the Disability Convention and ICESCR.

The outlook is also busy in relation to ongoing advice and assistance on Australia’s deployments overseas, the negotiation of FTAs and international litigation, including defence of the WTO case brought by New Zealand against Australia.

Performance indicators
Quantitative and qualitative

Output 1.4

Legal services and policy advice on international law

Activity

Performance indicator

Result

Policy advice provided to ministers Quantity   2006–07 2007–08
Submissions to ministers 134 170
Cabinet submissions 4 7
(Comments and input provided on 80 submissions from other portfolios)
Ministerial correspondence* 490 422
Responses to questions on notice 7 4
Briefs 337 364
Speeches 9 7
Quality Advice to ministers provided within agreed timeframes Achieved

A large amount of advice was provided to the Attorney-General, including in relation to whaling, climate change, security and human rights issues.
Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied

Feedback from the Attorney-General and his office indicates a very high level of satisfaction with the work of the Office of International Law.
Advising on the interpretation and implementation of international law, including in domestic litigation and including items of legal/policy advice Quantity   2006–07 2007–08
Items of legal/policy/operational advice 765 730
Quality Advice provided within agreed timelines Achieved

A very high percentage of advice was provided within agreed timelines.
  Quality Advice provided is respected by client agencies, as measured by periodic feedback Achieved

Stakeholders indicated they are highly satisfied with the level of service provided.

Feedback indicates that overall, major clients were highly satisfied with the contribution of the Office of International Law and greatly appreciated the quality and timeliness of its advice.

One major client commented that advice was ‘routinely clear and concise; and valued added’. Another commented in relation to one of the Office’s lawyers: ‘We really appreciate the excellent service we get and from you in particular.’
Developing international instruments in particular through involvement in negotiations in international forums and providing legal advice and assistance to other agencies Quantity   2006–07 2007–08
Contribution to preparations for international negotiations by Government agencies 750 699
Quality Advice provided within agreed timelines Achieved

A very high percentage of advice was provided within agreed timelines.
Advice provided is respected by client agencies, as measured by periodic feedback Achieved

Feedback from major clients indicates a very high level of satisfaction with the Office’s contribution to the development of international law.

The Office continued to lead Australian delegations to the Commission on the limits of the continental shelf and to the ICAO committee dealing with emerging threats to aviation.

Feedback from clients at other negotiations noted that advice was ‘a pleasure to read. Very clear, concise and reasonable and will be a great help to us’; that officers on delegations were ‘highly professional and always providing the right advice at the right time’ and ‘helped deliver a strong result for the Government’; and that the collaborative approach and advisory role of officers during negotiations was highly valued.
Representing Australia and providing advice and assistance in relation to international litigation Quality Advice provided within agreed timelines Achieved

A very high percentage of advice was provided within agreed timelines.
Advice provided is respected by client agencies, as measured by periodic feedback Achieved

Feedback from major clients was that they enjoyed a strong collaborative relationship with the Office.
International reporting on Australia’s compliance with treaties, in particular human rights treaties and responding to communications under international human rights treaties Quantity   2006–07 2007–08
Reports tabled 0 2
Reports being prepared 4 3
Responses to communications 7 8
Responses to views of treaty committees 6 9
Extent to which timeframes are met in accordance with project planning Achieved

A very high percentage of work was completed within required timeframes. Some delays occurred when awaiting input from other agencies.
Reports—Compliance with agreed Australian Government guidelines Substantially achieved

Reports lodged were late, but within revised Government timelines.

Reports under the Convention on Rights of the Child were delayed due to the need to revise them following the change of government.
Quality Advice to ministers provided within agreed timeframes Achieved

A very high percentage of advice was provided within agreed timelines.

Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied

Ministers expressed high levels of satisfaction with the Office’s human rights reporting work.

Advice provided is respected by client agencies, as measured by periodic feedback Achieved

The Office received very positive feedback from the Australian Ambassador to the United Nations on the contribution of officers to Australia’s appearance before the Committee Against Torture in Geneva.

* The number of ministerials relates to the number of actions in relation to ministerial correspondence.

† Briefs include papers on current issues, possible parliamentary questions (new and updated) and meeting briefs.

‡ This is an annual figure obtained from the Office of International Law workload database.


Our people

Appearing before the UN Committee Against Torture

Sarah McCosker and Greg Manning, Office of International Law.

Sarah McCosker and Greg Manning,
Office of International Law.

Australia was one of eight countries that appeared before the United Nations Committee Against Torture in Geneva in mid-2008. This was Australia’s first appearance under the Rudd Government before a United Nations human rights treaty body and the culmination of more than 14 months preparation.

Assistant Secretary Greg Manning and Senior Legal Officer Sarah McCosker were members of the delegation, fulfilling Australia’s regular reporting obligations as a party to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In June 2007, the Government submitted a comprehensive written response to a list of 41 detailed questions from the Committee. Initially scheduled for November 2007, Australia’s appearance was postponed because of the federal election. This delay required the preparation of a detailed addendum to the written response, informing the Committee of policy changes and developments since the change of government.

Sarah found the process stimulating, commenting that ‘the preparation for the appearance involved extensive consultation with seven of the Department’s divisions, 10 other federal departments, and every State and Territory’.

The delegation worked around the clock to fulfil its busy schedule. On behalf of the delegation, Geoff Skillen and Amelia Telec liaised with colleagues in Canberra to help prepare oral and written answers to the more than 60 additional questions asked during the delegation’s appearance.

In its Concluding Observations, released on 16 May 2008, the UN Committee complimented the delegation on the detailed and thorough replies provided and noted ‘the constructive dialogue’ it had had with a ‘competent and multi-sectoral delegation’. The Office of International Law is now leading the Government’s follow-up to the Committee’s 27 recommendations as the basis for Australia’s next periodic report due in 2012.