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Chapter 12 - External scrutiny

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External scrutiny

During 2010–11 the Department’s operations were subject to external scrutiny from the Australian National Audit Office, the courts, parliamentary committees, the Commonwealth Ombudsman and the Information Commissioner.

Reports by the Australian National Audit Office

Implementation of the Family Relationship Centres initiative

Family Relationship Centres provide an entry point into the family law system. They deliver services to families through the provision of information and referral services on parenting and relationships to intact families, and information, referral, advice, and dispute resolution services to separating and separated families to help them reach agreement on parenting arrangements without the need to go to court.

The Auditor-General undertook a performance audit of the effectiveness of the selection, implementation, operation and monitoring of the Centres by the Department and the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA).

The report of the performance audit was tabled in Parliament on 15 July 2010. The Department accepted all recommendations and is working with FaHCSIA, which has primary responsibility for the day-to-day administration and implementation of the Family Relationship Centres initiative.

Report on the audit of the National Security Hotline

The National Security Hotline is a 24-hour call centre located within the Department. It allows members of the public to pass on information relating to national security threats, in particular, terrorism.

An Australian National Audit Office (ANAO) audit of the National Security Hotline was conducted from September 2009 to May 2010 and the report was tabled in Parliament in July 2010. The objective of the audit was to assess whether the:

  • Department effectively manages operation of the Hotline, and
  • Australian Federal Police (AFP) and Australian Security Intelligence Organisation (ASIO) have effective procedures in place to deal with incoming referrals from the Hotline.

The ANAO concluded that the Department effectively manages operation of the Hotline and that ASIO and the AFP have developed sound procedures to evaluate and assess referred calls. As a consequence of the organisations’ responsiveness in resolving minor procedural issues identified during the audit, the report does not make any recommendations.

Emergency Management Australia (Audit Report No. 27 2007–08)

Recommendation 5 paragraph 5.31 of Audit Report No. 27 relating to the current review of the Australian Government Overseas Disaster Assistance Plan (AUSASSISTPLAN) was scheduled for final implementation by 30 June 2010, with a first draft of the plan distributed to stakeholders in early June 2010.

The Department has now completed a full review of the plan in collaboration with AusAID, taking into account lessons learnt from the 2009 Samoan tsunami and the earthquake in Sumatra. The revised plan has been submitted to AusAID for endorsement.

Northern Territory Night Patrols Program

Night patrols are community-based intervention initiatives to improve safety in Aboriginal communities across the Northern Territory. The Northern Territory Night Patrols Program is administered by the Department as part of the broader Indigenous Justice Program. An audit was completed during the year to assess the administrative effectiveness of the Department’s management of the Program.

A report on the performance audit was tabled in Parliament on 1 March 2011 with four recommendations to enable more flexible service delivery in communities, improve connection with other services, streamline administration, and assess program performance. The Department accepted the recommendations and continues to work closely to support night patrols to be responsive to community needs, deliver high quality outcomes and partner with other services to support safer communities.

Management of the Aviation and Maritime Security Identification Card Schemes

The Aviation and Maritime Security Identification Card schemes (ASIC and MSIC schemes) enhance existing security designed to safeguard the aviation and maritime industries. These cards are generally required by a range of people who work in secure areas of airports, seaports and on offshore oil and gas rigs.

The objective of the performance audit was to assess management of the schemes by the Department and the Office of Transport Security. The audit report was tabled in Parliament on 5 May 2011. The Department will work closely with the Office of Transport Security in implementing any changes.

Management of the Certificate of Compliance process in FMA Act agencies

The Auditor-General undertook a cross-agency performance audit of the management of Certificate of Compliance processes in FMA Act agencies. It examined:

  • the Department of Finance and Deregulation’s administration of the Certificate process at
    a whole-of-government level
  • annual Certificate processes of selected agencies (including the Department), and
  • the design and impact of the Certificate.

The report of the performance audit was tabled in Parliament on 20 April 2011. The Department agreed with the findings and in response will continue to undertake ongoing improvements.

Judicial decisions

Ray and Anor & Males and Anor

The case of Ray and Anor & Males and Anor (Ray and Males) has highlighted the need for Commonwealth and State and Territory child protection agencies to work more collaboratively on family law cases which raise issues that involve the need to protect children from harm.

On 31 March 2009, Justice Benjamin of the Hobart registry of the Family Court of Australia made orders joining the Secretary of the Tasmanian Department of Health and Human Services to a family law parenting proceeding, without the Secretary’s consent. The orders give the Family Court the option of conferring on the Secretary parental responsibility for the children who are the subject of the parenting proceedings.

The Secretary of the Tasmanian Department of Health and Human Services lodged an appeal against the judgment. The federal Attorney-General intervened in the appeal in support of Justice Benjamin’s decision. The Full Family Court’s decision, which was handed down on 22 December 2010, found that the order joining the Secretary of the Tasmanian Department of Health and Human Services should not have been made, as there was no power available to support the making of an order for parental responsibility in favour of the Secretary without his consent.

The Attorney-General has decided not to seek special leave to appeal the Full Family Court’s decision in the proceedings to the High Court of Australia.

Wallace v Stelzer

In January 2011 the Family Court in Wallace v Stelzer held that the amendments made to the binding financial agreement provisions of the Family Law Act 1975 by the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 are valid.

The amendments relaxed the technical requirements applying to spouses making binding financial agreements, which are intended to determine financial issues between them on relationship breakdown.

On 7 March 2011 the applicant lodged a Notice of Appeal to the Full Bench of the Family Court. The Attorney-General intervened in the proceedings to support the validity of the challenged provisions. The matter is expected to be heard in mid-2012.

Rosson v Tesoriero

In Rosson v Tesoriero, Legal Aid NSW (on behalf of Mr Rosson) sought judicial review of the decision by a Registrar of the Federal Court to refuse to allow a document to be filed when the relevant fee was unpaid.

The case concerned the proper interpretation of sub regulation 14(2) of the Federal Court Regulations 2004, which provides a general discretion for the Court to allow a document to be filed or the provision of a service even if the relevant fee is unpaid.

Mr Rosson was in immigration detention and had no assets or income with which to pay the reduced fee for his application, which challenged the cancellation of his visa on character grounds. The Registrar refused to use the discretion under sub regulation 14(2) to allow the matter to be filed on the basis that it was a judicial power only and not capable of being used to accept an initiating application for filing. However, in his decision of 6 May 2010, Justice Yates held that the power was a broad discretion and not limited to proceedings that had already commenced.

R v Khazaal

On 10 September 2008 in the Supreme Court of New South Wales, Mr Khazaal was found guilty of knowingly making a document connected with a terrorist act in contravention of section 101.5 of the Criminal Code. Mr Khazaal was sentenced on 25 September 2009 to 12 years imprisonment with a non-parole period of nine years. Mr Khazaal successfully appealed against his conviction and sentence on 9 June 2011 in the New South Wales Court of Criminal Appeal. His conviction
was set aside and a retrial was ordered. The re-trial has been listed for 7 November 2011 in the Supreme Court. An application for special leave to appeal has been filed in the High Court by the Commonwealth Director of Public Prosecutions against the decision of the Court of Criminal Appeal.

R v Fattal & Ors

On 5 August 2009, five men in Victoria were charged with the offence of conspiring to commit 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 guilty of terrorism related offences under the Criminal Code. The three men are in custody awaiting sentence.

R v Benbrika & Ors

This trial relates to 13 men who were charged with membership of a terrorist organisation and other terrorism related offences. Seven men were found guilty by jury of being members of a terrorist organisation and appealed against their convictions and sentences.

On 25 October 2010 the Court of Appeal dismissed appeals by the men against their convictions for membership of a terrorist organisation. The Court upheld appeals by two men against their convictions for the related offence of possessing a thing connected with preparation for a terrorist act. Six of the seven men had their sentences slightly reduced on appeal. Three of the men have filed an application for special leave to appeal to the High Court. In June 2001, the High Court heard and refused those applications.

Reports by parliamentary committees

Senate Legal and Constitutional Affairs Committee

Inquiry into the Civil Dispute Resolution Bill 2010

The Civil Dispute Resolution Bill 2010 was referred to the Senate Legal and Constitutional Affairs Committee on 30 September 2010, with the report handed down on 2 December 2010. The following recommendations were made:

  • Recommendation one—the committee recommends that the Bill be amended to provide for an inclusive definition of the word ‘genuine’ to better reflect the intention of the National Alternative Dispute Resolution Advisory Council report.
  • Recommendation two—the committee recommends that the Bill be amended so that the Court, when taking into consideration the genuine steps that have been taken by a person when it is exercising its powers or performing its function, also takes into account the circumstances of disadvantaged litigants.
  • Recommendation three—the committee recommends that the Bill be amended so that information disclosed during the genuine steps obligation cannot be used for any other purpose outside the resolution of the dispute at hand.
  • Recommendation four—the committee recommends that, subject to the recommendations in relation to the definition of the word ‘genuine’, the consideration of position of disadvantaged litigants and the protection of the privacy of documents, the Senate pass the Bill.

The following amendments were made to the Bill to implement the Committee’s recommendations:

  • Recommendations 1 and 2—a new definition of ‘genuine steps’ was added at clause 4, stating that a person takes genuine steps to resolve a dispute if the steps taken by the person constitute a sincere and genuine attempt to resolve the dispute, having regard to the person’s circumstances and the nature and circumstance of the dispute.
  • Recommendation 3—clause 17A replaced the old clause 14 to explicitly state that the Bill does not exclude or limit the operation of a law of the Commonwealth, a law of a State or Territory, or the common law, relating to the use or disclosure of information, the production of documents or the admissibility of evidence.

Liberal senators made the following recommendation, which was not adopted:

  • Liberal senators support the Chair’s report and the intentions of the Bill, however, recommend that the Civil Dispute Resolution Bill 2010 be amended to remove the word ‘genuine’ and to insert the term ‘reasonable’.
Inquiry into the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

On 25 March 2011, the Senate referred the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 to the Legal and Constitutional Affairs Committee for inquiry and report by 23 June 2011. The Committee is seeking an extension to report by 16 August 2011 with public hearings scheduled for 8 July 2011.

Inquiry into international child abduction to and from Australia

In May 2011, the Senate referred the following matter to the Legal and Constitutional Affairs Committee for inquiry and report:

The incidence of international child abduction to and from Australia, including:

(a) the costs, terms and conditions of legal and departmental assistance for parents whose child has been abducted overseas

(b) the effectiveness of the Hague Convention in returning children who were wrongfully removed or retained to their country of habitual residence

(c) the roles of various Commonwealth departments involved in returning children who were wrongly removed or retained to their country of habitual residence

(d) policies, practices and strategies that could be introduced to streamline the return of abducted children, and

(e) any other related matters.

The reporting date was 31 October 2011.

Inquiry into the Australian Law Reform Commission

The Senate Standing Committee on Legal and Constitutional Affairs tabled the report of its Inquiry into the Australian Law Reform Commission on 8 April 2011. The Government is considering the Committee’s recommendations and a response will be tabled in due course.

Inquiry into the Telecommunication Interception and Intelligence Services Legislation Amendment Bill 2010

The Committee tabled its report on the Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010 in November 2010. It recommended that the Bill be passed, subject to further clarification being provided through a revised Explanatory Memorandum and the issuing of guidelines. The Government responded to the Committee’s report as part of the Senate debate on the Bill on 2 March 2011.

Inquiry into the Intelligence Services Legislation Amendment Bill 2011

The Committee tabled its report on the Intelligence Services Legislation Amendment Bill 2011 on 22 June 2011. The Committee recommended that the Bill be passed subject to further clarification being provided in the Explanatory Memorandum.

Inquiry into the Aviation Crimes and Policing Legislation Amendment Bill 2011

On 16 November 2009, the Senate Legal and Constitutional Affairs Legislation Committee released the report of its inquiry into the provisions of the Aviation Crimes and Policing Legislation Amendment Bill 2010. It recommended that the Bill be passed subject to further clarification being provided in the explanatory memorandum.

The Bill was passed by Parliament on 9 February 2011 and received Royal Assent on 2 March 2011.

Inquiry into Wild Rivers (Environmental Management) Bill 2011

On 24 March 2011 the Senate referred the Wild Rivers (Environmental Management) Bill 2011 for inquiry and report. The private Bill, which was introduced by Senator Scullion, sought to protect the interests of Indigenous people in the management, development and use of native title land situated in wild rivers areas in Queensland. The Senate agreed on 24 March 2011 that in conducting this inquiry, the Committee should only inquire into those provisions of the Bill which had not been previously examined by the Legal and Constitutional Affairs Legislation Committee in its inquiry and report into the Wild Rivers (Environmental Management) Bill 2010 [No. 2].

The Committee received submissions and heard evidence from witnesses at a public hearing in Canberra on 27 April 2011. The Committee reported on 10 May 2011 and recommended that the Senate should not pass the Bill.

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

On 28 January 2011, the Senate Legal and Constitutional Affairs Legislation Committee released the report of its inquiry into the provisions of the Human Rights (Parliamentary Scrutiny) Bills. The Government is considering its response to the report.

Inquiry into the Sex and Age Discrimination Legislation Amendment Bill 2010

On 1 March 2011, the Senate Legal and Constitutional Affairs Legislation Committee released the report of its inquiry into the provisions of the Sex and Age Discrimination Legislation Amendment Bill 2010. The majority of the Committee recommended the Bill be passed. It also recommended a minor clarification to the Explanatory Memorandum, a point which the Government clarified during Senate debate on the Bill.

The Bill sought to implement eight of the 43 recommendations made by the Committee in its 2008 review of the effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality. The majority of the remaining recommendations were deferred for further consideration as part of the project to consolidate Australia’s anti-discrimination laws into a single Act. In considering the Bill, the Committee reiterated its recommendations from its previous report and recommended they be adopted in the consolidated Act.

The Bill was passed by Parliament on 24 March 2011 and became law on 20 June 2011.

Inquiry into the Combating the Financing of People Smuggling and Other Measures Bill 2011

On 21 March 2011, the Senate Legal and Constitutional Affairs Committee tabled its report on the Combating the Financing of People Smuggling and Other Measures Bill 2011. The Committee recommended that the Senate pass the Bill, and that AUSTRAC establish memoranda of understanding for the intelligence-sharing provisions in the Bill. Further, the Committee recommended the Department review options for an appropriate oversight mechanism to monitor the handling of credit reporting information for the electronic verification of identity pursuant to the Bill. The Government accepted the first recommendation of the Committee. In relation to the second recommendation, consideration of an oversight mechanism is a broader issue for consideration under the privacy review.

The Bill was passed by Parliament on 16 June 2011 and received Royal Assent on 28 June 2011.

Inquiry into the Crimes Legislation Amendment Bill 2010

On 17 June 2010, the Senate Legal and Constitutional Affairs Committee tabled its report on the Crimes Legislation Amendment Bill 2010. The Committee recommended that the Bill be passed subject to one amendment: that part-time Australian Crime Commission examiners should be current or former judicial or quasi-judicial officers from federal, State or Territory courts or tribunals. The Government did not accept this amendment, and the Bill was passed on 10 February 2011.

Senate Legal and Constitutional Affairs References Committee

Donor conception practices in Australia

On 23 June 2010, the Senate Legal and Constitutional Affairs References Committee commenced an inquiry into donor conception in Australia. The Committee re-adopted the inquiry on 30 September 2010. The Senate Committee reported on 10 February 2011. It recommended, amongst other things, the Australian Government work through the Standing Committee of Attorneys-General to establish a national register of donors.

Joint Standing Committee on Treaties

In April 2011, the Joint Standing Committee on Treaties tabled its report on the review into treaties, which were tabled on 24 and 25 November 2010, 9 February 2011 and 1 March 2011. This report dealt with the agreement between the Australian Government and the New Zealand Government on Trans-Tasman Court Proceedings and Regulatory Enforcement (the Trans-Tasman Agreement). The Trans-Tasman Agreement streamlines the process for resolving civil proceedings with a trans-Tasman element to reduce costs, improve efficiency and minimise existing impediments to enforcing judgments and regulatory sanctions. The Committee recommended that binding treaty action be taken. It concluded that the Trans-Tasman Agreement properly recognises the strong trade and other ties that exist between Australia and New Zealand and that the Agreement is a timely development in
Trans-Tasman relations. Australia is currently working cooperatively with New Zealand to ensure all domestic procedures are in place for the Agreement’s entry into force.

Report 116—Part 11: Council of Europe Convention on Cybercrime

On Wednesday 11 May 2011, the Joint Standing Committee on Treaties tabled its Report 116 which included a review of the Council of Europe Convention on Cybercrime. The Committee supported Australia’s accession to the Council of Europe Convention on Cybercrime and recommended Australia take binding treaty action.

Joint Select Committee on Cyber-Safety

Inquiry into the Cybercrime Legislation Amendment Bill 2011

On 23 June 2011, the House of Representatives Selection Committee asked the Joint Select Committee on Cyber Safety to inquire into and report on the Cybercrime Legislation Amendment Bill 2011.

Parliamentary Joint Committee on Law Enforcement

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

On 16 June 2011, the Parliamentary Joint Committee on Law Enforcement released its inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime. The Committee made 22 recommendations, which the Government is considering. A response will be tabled in due course.

House of Representatives Standing Committee on Economics

Inquiry into Indigenous economic development in Queensland and review of the Wild Rivers (Environmental Management) Bill 2010

On 3 November 2010 the Minister for Families, Housing, Community Services and Indigenous Affairs, Jenny Macklin, asked the Committee to inquire into and report on Indigenous economic development in Queensland including issues surrounding Queensland’s Wild Rivers Act 2005. On 17 November 2010 the House of Representatives referred the Wild Rivers (Environmental Management) Bill to the Committee for inquiry and report by the end of the autumn period of sittings in 2011.

Apart from initial and final hearings in Canberra, the public hearings included two series of visits to Brisbane, Cairns, Weipa, and Bamaga in far north Queensland. Forty-one submissions addressing the Bill were received as part of the Committee’s broader inquiry into Indigenous economic development. On 12 May 2011 the Committee recommended that the Bill should not be passed.

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

Inquiry into the high levels of involvement of Indigenous juveniles and young adults in the criminal justice system

On 19 November 2009, the Minister for Families, Housing, Community Services and Indigenous Affairs, Jenny Macklin, asked the Committee to inquire into and report on issues driving the high rate of adverse contact with the criminal justice system for Indigenous juveniles and young adults. The inquiry lapsed when the House of Representatives was dissolved on 19 July 2010 for a general election, which was held on 21 August 2010. On 8 November 2010, the Minister re-referred the inquiry to the Committee for completion.

The Committee received 110 submissions and conducted 18 public hearings in Canberra, Sydney, Melbourne, Brisbane, Adelaide, Perth, Darwin, Cairns and Fitzroy Crossing. On 20 June 2011, the Committee tabled its report entitled Doing Time—Time for Doing: Indigenous Youth in the Criminal Justice System. The report made 40 recommendations addressing connections between Indigenous contact with the criminal justice system and the justice, health, education and employment sectors. The Government is currently considering these.

Senate Foreign Affairs, Defence and Trade Committee

Inquiry into the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010

On 25 March 2010, the Senate Foreign Affairs, Defence and Trade Legislation Committee tabled the report of its inquiry into the provisions of the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. The Committee made only one recommendation that the Senate pass the Bill.

House of Representatives Standing Committee on Communications

Inquiry into cyber crime

On 21 June 2010, the Standing Committee on Communications tabled its report on the inquiry into cyber crime entitled Hackers, fraudsters and botnets: tackling the problem of cyber crime. The Government tabled its response to the report on 25 November 2010. The Committee made 34 recommendations for a more coordinated and strategic approach to cyber crime and related issues, including cyber security, consumer protection and privacy. The report’s recommendations were either accepted in full, in part, in principle, or were noted.

Reports by the Commonwealth Ombudsman

Talking in language: Indigenous language interpreters and government communication

The Commonwealth Ombudsman investigated the engagement and use of Indigenous interpreters by six Australian Government agencies, including the Department. The report, released on 19 April 2011, found that Indigenous interpreters were not always used when they should be, and that agencies should review their approach to engaging with Indigenous interpreters.

There were three recommendations relevant to the Department which were, and are, being addressed. The Department is required to report back to the Ombudsman in August 2011.

Other reports

Office of the Information Commissioner’s privacy audit of aspects of the National Document Verification Service

The Office of the Information Commissioner conducted a privacy audit of the National Document Verification Service. The audit report was released in June 2011. No recommendations were made.

Internal audit of the Building Community Resilience Youth Mentoring Grants Program

The Department’s 2010–2013 Strategic Internal Audit Plan includes an internal audit of the Countering Violent Extremism Grants Program.

In 2010–11, Deloitte Touche Tohmatsu was engaged as part of an internal audit process to examine the Building Community Resilience Youth Mentoring Grants Program.

The objective of this phase of the internal audit was to evaluate the adequacy of the design and operating effectiveness of the processes for receiving, assessing and approving the provision of the 2010–11 grants.

A draft report of the audit was released in June 2011 which identified no issues with the adequacy of the Department’s processes around the provision of the grants. The audit found the Department processed the grant applications in accordance with the guidelines, the ANAO Better Practice Guide to Implementing Better Practice Grants Administration and the Department’s Grants Management—Guidance and Procedures Manual.

Report on learning from experience: purchasing legal services

In December 2010, Lateral Economics was engaged to examine how a number of the proposed reforms to the procurement of legal services would impact on the functioning of the legal services market. This report was released on 21 February 2011 and contains four recommendations to assist in the progress of legal services procurement reform.

 


Our people

Working to counter violent extremism

Locally appropriate solutions

The countering violent extremism (CVE) community engagement strategy commenced in July 2010 with the aim to consult and build relationships with key community stakeholders on the topic and to develop policies and programs that are evidence-based, needs-focused and realistic.

‘CVE is a relatively new policy area and is a sensitive issue that is not easily understood,’ says Georgia Williams, Policy Officer, Countering Violent Extremism Branch. ‘It is an issue for all Australians, but concerns a number of communities that are directly affected by the existence of these ideologies.’

The Branch’s main challenge is to capture feedback provided by the community and develop programs and initiatives that accurately reflect the community’s comments and needs.

‘Communities play an important role in developing locally appropriate solutions to the problems of violent extremism in Australia,’ says Georgia. ‘The Department coordinates, funds and provides a focus for these ideas’.

The CVE community engagement forums are a good example of the Department’s increased understanding of the community’s role in informing policy development. The community leaders that attend these forums take the Government’s key messages back to their members, and contribute valuable ideas back to the Government from a grassroots level.

The forums also provide an opportunity for communities to engage directly with the Attorney-General and provide suggestions on countering violent extremism issues.

‘Engaging directly with communities about a national security issue is quite new and innovative for the Department,’ says Georgia. ‘This initiative is a good way of enhancing communication between Government and communities to improve the understanding for both parties on where we can work collaboratively. Getting to meet people at the coalface and understanding the impact of the policies has been a real highlight for me.’

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