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External scrutiny

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Judicial decisions

Monis v R; Droudis v R [2013] HCA 4

This High Court case concerned a challenge to the constitutional validity of section 471.12 of the Criminal Code Act 1995, in light of the implied constitutional freedom of political communication. Section 471.12 relevantly prohibits a person from using a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, 'offensive'. The case arose out of charges laid against the appellants for letters sent to the families of Australian soldiers killed while serving in Afghanistan. The High Court divided 3:3 on the validity of s 471.12. Under the Judiciary Act 1903, if the High Court is evenly divided in an appeal, then the outcome is that the decision of the court appealed from is affirmed. Accordingly, the New South Wales Court of Criminal Appeal decision upholding the validity of section 471.12 remains standing.

R v K (unreported)

This matter represents Australia's first charge and conviction for child trafficking. In April 2013, a woman in Queensland pleaded guilty to child trafficking contrary to section 271.4 of the Criminal Code Act 1995, in addition to nineteen state offences. The victim, who is the offender's daughter, was trafficked to Australia and subjected to sexual exploitation. The offender was sentenced to nine years' imprisonment with a non-parole period of four years.

X7 v the Australian Crime Commission and the Commonwealth of Australia [2013] HCA 29

The High Court considered the scope of provisions of the Australian Crime Commission Act 2002 (the Act) authorising the Australian Crime Commission (the ACC) to conduct examinations of witnesses for the purpose of obtaining information relevant to criminal activity. Following the plaintiff X7's arrest and charge for a range of serious offences, he was summonsed to appear at an ACC examination and was examined about his knowledge of criminal activity, including questions about the matters with which he had been charged. X7 argued that the ACC Act did not authorise such questions to be asked in such an examination and in the alternative that if it did so, it was unconstitutional to that extent. The High Court found, by a three to two majority, that the ACC Act on its proper construction did not authorise the asking of such questions in an examination.

Maloney v The Queen [2013] HCA 28

This case was an appeal to the High Court about the validity of Queensland legislation which restricts the possession of alcohol on Palm Island. This was the first time since 2002 that the High Court has addressed the construction and operation of the Racial Discrimination Act 1975 (RDA) in the context of laws implementing measures directed to the protection and development of Indigenous persons.

The High Court found, by majority, that the laws were inconsistent with section 10 of the RDA which provides for the right to equality before the law, and applies to an Australian Government, state or territory law that is alleged to be racially discriminatory, either in its terms or its practical effect. However, the court was unanimously of the view that section 10 did not apply because the provisions constituted a 'special measure' designed to protect the residents of Palm Island from the effects of prevalent alcohol abuse and associated violence. Accordingly, the court held the laws were valid and dismissed the appeal. The High Court's decision has provided further guidance on what constitutes a 'special measure' to fall within the exemption provided for under the RDA.

R v Khazaal [2012] HCA 26

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 appealed his conviction and sentence, and the New South Wales Court of Criminal Appeal (NSWCCA) set aside his conviction and ordered a retrial. The Commonwealth Director of Public Prosecutions appealed to the High Court which set aside the orders of the NSWCCA, which means the original conviction stands.

Antonios Sajih Mokbel v The Queen [2013] VSCA 118

Mr Mokbel was extradited to Australia from Greece in 2008 to face prosecution for drug offences. He ultimately pleaded guilty and was sentenced to 30 years' imprisonment. Following his sentence, he filed an application for leave to appeal his conviction and sentence arguing an abuse of process by Australia based on the High Court's decision in Moti v The Queen [2011] HCA 50.

Mr Mokbel argued his prosecution should have been permanently stayed because he was surrendered to Australia before his application to the European Court of Human Rights had been heard, that this was a violation of Greece's obligations under the European Convention on Human Rights, and that Australia knew Greece was acting in violation of its obligations when it accepted him.

The High Court refused Mr Mokbel's leave to appeal his conviction and held there was no legal obstacle to Greece surrendering Mr Mokbel to Australia, that the conduct of Australian officials was as would have been expected of those seeking the extradition of a fugitive, and that Australian officials were mindful of the necessity to act in accordance with all applicable legal requirements. On 14 June 2013, Mr Mokbel filed an application in the High Court for special leave to appeal the Court of Appeal's decision. At the time of writing, a hearing date for the special leave application had not yet been allocated.

Baker v Commonwealth of Australia [2012] FCAFC 121

The applicants in this case challenged the validity of Schedule 18 of the Federal Magistrates (Consequential Amendments) Act 1999 which amended the Judges' Pensions Act 1968 to exclude Federal Magistrates from the operation of that Act. The Full Court held that the applicants were not entitled to the relief sought in their application, and ordered costs in favour of the Commonwealth.

Stanford v Stanford [2012] HCA 52

In this case, an elderly couple had been separated by the need for full-time residential care for the wife, who later died during the course of the proceedings. The dispute was about whether an order for alteration of property interests can be made under section 79 of the Family Law Act 1975, where the parties are not separated or are 'involuntarily' separated. Under the Family Law Act, if a party dies before the conclusion of proceedings, a court may make a property settlement order if it would have made an order had the party been alive and if it is still appropriate, despite the party's death, to make such an order. The Commonwealth Attorney-General intervened in the case to make submissions on the nature and scope of section 79. The High Court decided that a section 79 order can be made in these circumstances if it is just and equitable to do so. The High Court determined that there was no basis to conclude that it would have been just and equitable to make a property settlement had the wife been alive.

AC v VC [2013] FamCAFC60

This appeal concerned the constitutional validity of section 90AF and, by extension, Part VIIIAA, of the Family Law Act 1975. This was the first occasion on which the Full Court of the Family Court considered the construction and validity of any of the powers conferred by Part VIIIAA. The Full Court found that the powers were valid upholding the nature of the Family Court's powers to deal with property which is the subject of family law disputes in the context of third party rights.

Central Authority v Wageman [2012] FamCAFC 176

This matter concerned the performance of functions by the department as Commonwealth Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction. The department appealed a decision of the Family Court to permanently stay an application made under the Convention. The department wanted to ensure the decision was overturned to protect the integrity of applications properly made under the Hague Convention. If left standing, the decision would frustrate the objects of the Hague Convention and potentially breach Australia's domestic and international obligations.

The appeal contained 16 grounds challenging the decision of the Family Court including failure properly to consider or apply the established principles with respect to the granting of a permanent stay of proceedings. The Full Family Court upheld the appeal and set aside the orders to permanently stay the application, holding that '… to grant a permanent stay is a remedy to be adopted in exceptional and extreme circumstances … a stay should not be granted if there was some other, less drastic step that would protect the court's processes.'

RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest, one of the judges of the Family Court & Ors [2012] HCA 47

In this case, the applicant challenged the validity of section 68L(3) of the Family Law Act 1975 which provides that exceptional circumstances are required to justify the independent representation of children in proceedings under the Family Law (Child Abduction Convention) Regulations 1986. The High Court dismissed the application and found that separate representation was not always required to ensure procedural fairness.

Reports by Parliamentary Committees

This section outlines key parliamentary inquires in which the department participated during the reporting period.

Parliamentary Joint Committee on Human Rights

The Committee tabled eleven reports on Bills and other legislative instruments during the year. The committee reported on the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013, the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill, the Law Enforcement Integrity Legislation Amendment Bill 2012, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.

The reports also included views on the Courts and Tribunals Legislation Amendment (Administration) Bill 2012, and a request for the Attorney-General to advise on whether the proposed changes would impact the access individuals currently have to the National Native Title Tribunal. The Attorney-General's response was tabled in the Committee's First Report of 2013reiterating that the 'amendments contained in the Bill are of a minor and technical nature, impacting on the Court's and Tribunal's internal administrative practices.' Inquiries on the Bill were held by the House Standing Committee on Social Policy and Legal Affairs and the Senate Legal and Constitutional Affairs Legislation Committee.

Parliamentary Joint Committee on Law Enforcement

Inquiry into the gathering and use of criminal intelligence

The Committee tabled a report on its inquiry into the gathering and use of criminal intelligence outlining the findings of its inquiry into the capacity of the Australian Crime Commission and the Australian Federal Police to gather, use and share criminal intelligence to reduce the threat and impact of serious and organised crime. The report identified significant impediments to the flow of criminal intelligence nationally and made a number of recommendations aimed at supporting efforts to establish an interoperable criminal intelligence system capable of producing a comprehensive national picture of serious and organised crime.

Joint Standing Committee on Treaties

The Joint Standing Committee on Treaties released Report 131 which considered the Treaty between Australia and the Socialist Republic of Vietnam on Extradition and recommended that action be taken to establish a binding treaty.

Joint Standing Committee on Foreign Affairs Defence and Trade

Human Rights Sub-Committee — Inquiry into slavery, slavery-like practices and people trafficking

The Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade held an inquiry into slavery, slavery-like practices and people trafficking. The department coordinated a whole-of-government submission on the domestic implementation of Australia's anti-human trafficking strategy. The Committee tabled its report, entitled Trading Lives: Modern Day Human Trafficking. The report made several recommendations, including initiatives to raise awareness and efforts to address supply chain exploitation. At the time of writing, the Government was considering each of the Committee's recommendations.

Senate Legal and Constitutional Affairs Legislation Committee

Inquiry into the detention of Indonesian minors in Australia

The Senate referred the matter of detention of Indonesian minors in Australia to the Senate Legal and Constitutional Affairs Committee for an inquiry. The inquiry focused on any Indonesian minors that were being held in Australian prisons, remand centres or detention centres at the time, and the appropriateness of that detention. The inquiry looked at the procedures in place within government departments and agencies when having to determine claims of being a minor. The department tabled a response to the Report of the Senate Committee inquiry, agreeing with a number of the majority recommendations, and is undertaking further work on implementation.

Inquiry into the Native Title Amendment Bill 2012

The Native Title Amendment Bill 2012 was referred to the Senate Legal and Constitutional Affairs Legislation Committee. Following an inquiry, the Committee recommended that the Bill be passed and recommended amendments to provisions in the Bill relating to 'good faith' negotiations and Indigenous Land Use Agreements.

Inquiry into the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012

The Committee recommended a number of significant policy, definitional and technical amendments which are being considered by the Government. Recommendations included amending the definition of 'gender identity' and including 'intersex status' as a protected attribute, both of which were addressed in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.

Inquiry into the impact of Federal Court fee increases since 2010 on access to justice in Australia

The Senate Legal and Constitutional Affairs References Committee undertook an inquiry into the impact of Federal Court fee increases on access to justice in Australia. The Committee considered submissions from a range of organisations including the department, releasing its report on 17 June 2013. The report covered a number of issues relating to the changes to court fees since 2010, including access to justice policy considerations making five recommendations on the policy process for setting court fees and the implementation of specific fee exemptions. At the time of writing, the Government was considering its response.

Inquiry into the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 was referred to the Committee for inquiry. The report recommended that the Bill be passed, subject to proposed Government amendments to the religious exemption regarding aged care and changes to terminology in other Acts being adopted. It recommended that the new attributes of gender identity and intersex status be added to the Fair Work Act 2009. The Government agreed to the recommendation to proceed with the amendments.

Inquiry into the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

The Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 were jointly referred to the Committee for inquiry and report. The report recommended that the Bills be passed subject to amendment of the Explanatory memoranda to clarify the policy rationale for certain military justice measures.

Inquiry into the Courts Legislation Amendment (Judicial Complaints) Bill 2012 and Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012

The Committee tabled its report on its inquiry into the Bills and considered existing processes for the resolution of complaints about judicial officers, the role of the Parliament under paragraph 72(ii) of the Constitution and the recommendations of previous inquiries as well as submissions from stakeholders. The Committee recommended the Bills be passed subject to specified amendments to the Parliamentary Commissions Bill (namely the exclusion of serving state or territory Supreme Court judges from appointment to a Parliamentary Commission; the publication, handling and custody of evidence a Parliamentary Commission may receive; and the application of parliamentary privilege to a Parliamentary Commission established under the legislation). Government amendments were moved in the House of Representatives to address Committee recommendations.

Inquiry in the Marriage Amendment (Celebrant Administration and Fees) Bill 2013 and Marriage (Celebrant Registration Charge) Bill 2013

The Committee tabled its report on its inquiry into the two Marriage Act Amendment Bills. The Committee considered over 113 submissions about the Bills and held a public hearing into the proposed operation of the Bills and their impact on marriage celebrants. The Committee found that the Bills were fully consistent with the Australian Government's cost recovery guidelines and had been the subject of extensive and ongoing consultation. The Committee recommended that the Bills be passed.

Inquiry into the Courts and Tribunals Legislation Amendment (Administration) Bill 2012

This Bill was reviewed by the Parliamentary Joint Committee on Human Rights, Senate Legal and Constitutional Affairs Legislation Committee and the House of Representatives Standing Committee on Social Policy and Legal Affairs. Please see the Parliamentary Joint Committee on Human Rights heading at the beginning of this section for more detail.

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

The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill was referred to the Committee for inquiry and report. The Committee Report made four recommendations about the Bill, including that the Senate pass the Bill subject to revisions to the Explanatory Memorandum. The Government's Response to the Committee Report was coordinated by the department and was tabled on 16 May 2013. In line with the Committee's recommendation, the Government tabled an addendum to the Explanatory Memorandum to clarify the application of the servitude and forced labour offences in the Bill.

Inquiry into the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013

The Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill 2013 was referred to the Committee. The Committee recommended that the Senate pass the Bill.

Inquiry into the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012

On 28 November 2012, the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 was referred to the Committee which recommended the Senate pass the Bill.

Inquiry into the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012

The Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012 was referred to the Committee which recommended that the Senate pass the Bill.

Inquiry into the Law Enforcement Integrity Legislation Amendment Bill 2012

The Law Enforcement Integrity Legislation Amendment Bill 2012 was referred to the Committee which recommended that the Senate pass the Bill.

House of Representatives Standing Committee on Social Policy and Legal Affairs

Inquiry into the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013

The Bill was referred to the Committee for inquiry and report which recommended that the Bill be passed.

Inquiry into the Courts Legislation Amendment (Judicial Complaints) Bill 2012 and Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012

The Committee tabled its report on its inquiry into the Bills and considered existing processes for the resolution of complaints about judicial officers, the role of the Parliament under paragraph 72(ii) of the Constitution and the recommendations of previous inquiries as well as submissions from stakeholders. The Committee recommended that the Bills be passed.

Inquiry into the Courts and Tribunals Legislation Amendment (Administration) Bill 2012

This Bill was reviewed concurrently by the Parliamentary Joint Committee on Human Rights, Senate Legal and Constitutional Affairs Legislation Committee and the House of Representatives Standing Committee on Social Policy and Legal Affairs. Please see the Parliamentary Joint Committee on Human Rights heading at the beginning of this section for more detail.

Inquiry into the arrangements surrounding crimes committed at sea.

The Committee tabled its report, entitled Troubled Waters: Inquiry into the Arrangements Surrounding Crimes Committed at Sea. The report made several recommendations, including in relation to increasing efforts to achieve greater cruise passenger safety through international organisations, such as the International Maritime Organisation, and increased awareness more generally.

Parliamentary Joint Committee on Intelligence and Security (PJCIS)

Inquiry into Potential Reforms of National Security Legislation

In recognition of the substantial changes in the law enforcement and national security environment in recent years, the Committee examined a range of measures that would allow intelligence and law enforcement agencies to keep up with the challenges of rapidly-changing technology and the global security environment. The ideas considered by the Committee relate to proposed reform of the Telecommunications (Interception and Access) Act 1979 (TIA Act), the Telecommunications Act 1997, the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001. The Committee made 43 recommendations and endorsed further work on the majority of the proposed reforms, including recommending comprehensive revision of the TIA Act and that the Australian Government introduce a telecommunications sector security framework. The Committee supported the majority of proposed measures to modernise and improve laws relating to Australian intelligence agencies. At the time of writing, the Government was considering its response to the Committee's report.

Various — reviews of listing of terrorist organisations

During the reporting period, the department provided submissions to the Parliamentary Joint Committee on Intelligence and Security on its reviews of the re-listing of terrorist organisations. The Committee tabled its report on the re-listing of Al-Shabaab, Hamas' Izz al-Din al-Qassam Brigades, Kurdistan Workers Party (PKK), Lashkar-e-Tayyiba and Palestinian Islamic Jihad in October 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

In 2011, the Committee reported on the capacity of communication networks and emergency warning systems to deal with emergencies and natural disasters. 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 Government Response was tabled in November 2012.

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

Inquiry into the Native Title Amendment Bill 2012

The Native Title Amendment Bill 2012 was referred to the Committee, which considered the Bill's balancing of views of various stakeholders and proposals for future reform of the native title process. The Committee recommended the Bill be passed. The Committee recommended the Minister of Indigenous Affairs refer to the Committee a comprehensive inquiry into the native title system at the commencement of the next term of Parliament.

Other external scrutiny

We have not been the subject of any decisions by the Australian Information Commissioner that have had, or may have, a significant impact on our operations. Similarly, there were no reports on the operations of the department by the Auditor-General or Commonwealth Ombudsman.

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