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Thursday, 9 February 2012
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Senator CARR (Victoria—Minister for Manufacturing and Minister for Defence Materiel) (16:18): I present six government responses to committee reports. In accordance with the usual practice, I seek leave to have the documents incorporated in Hansard.

Leave granted.

The reports read as follows—

SENATE FOREIGN AFFAIRS, DEFENCE AND TRADE REFERENCES COMMITTEE

INQUIRY INTO DEFENCE'S REQUEST FOR TENDER FOR AVIATION CONTRACTS

GOVERNMENT RESPONSE

November 2011

RESPONSES TO RECOMMENDATIONS

Recommendation 1 paragraph 9.28

The committee recommends that Defence:

requires the documentation of a dedicated probity plan for all future procurements of air sustainment services to the MEAO;

Response - Agreed.

A probity plan specific to future procurements of air sustainment services to the MEAO has been developed and is attached. A specific instruction will be issued to mandate the development of a probity plan based on this template for all future procurements of air sustainment services to the MEAO. The template probity plan can also be tailored for other procurements undertaken by HQJOC, as required.

More generally, the necessary Defence procurement policy and operational guidance framework for the creation of a probity plan already exists (see Defence Procurement Policy Manual, 1 July 2011 edition (DPPM) at Chapter 5.4 Request Documentation, paragraphs 62, 63 and 65).

ensures probity plans for all future procurements of air sustainment services to the MEAO identify expressly and address the risks associated with:

(i)   proponent grievances and

(ii)   the small and highly competitive nature of the commercial air charter market;

Response - Agreed

The attached probity plan specifically addresses the two risks listed above.

implements its proposed policy of appointing probity advisors to all complex and strategic procurements and monitors closely the implementation progress and impact of this policy - in particular, ensures that a probity advisor is appointed to all future procurements of air sustainment services to the MEAO; and

Response - Agreed in principle

Probity advisers will be appointed where it is consistent with the existing Defence procurement policy and operational guidance. The DPPM, Chapter 3.13, paragraphs 14 to 29, provide for the appointment of probity advisers based upon the Department of Finance and Deregulation (Finance) policy that 'the decision on whether to engage an external probity specialist should weigh the benefits of receiving advice independent of the process against the additional cost involved and include consideration of whether or not skills exist within the agency to fulfil the role'.

Based on past experience it is reasonable to assume that the future procurement of air sustainment services to the MEAO would meet the Finance policy requiring the appointment of a probity adviser, and the template Probity Plan referred to above is drafted on this basis.

amends chapter 3.2 of the Defence Procurement Policy Manual on risk management in procurement to include references to probity risks. In particular, Defence should consider cross-referencing chapter 3.13 on ethics and probity in procurement.

Response - Agreed.

In the planned 1 December 2011 update of the DPPM, Defence will update Chapter 3.2 to expand the references to probity risk, and cross reference this chapter with Chapter 3.13 on ethics and probity in procurement. In addition, Defence will also release an updated chapter 3.13 as part of the planned 1 December 2011 update.

Recommendation 2 paragraph 10.9

The committee recommends that Defence reviews all Defence Instructions and related documents in respect of Reservists, full or part time, to ensure that real and potential conflicts of interest that might arise as a result of past, current or post separation employment are identified, reported and managed appropriately. In particular:

(a)   Defence considers whether Defence Instructions DI(G) PERS 25-2 (Employment and voluntary activities of ADF members in off-duty hours) and DI(G) PERS 25-3 (Disclosure of interests of members of the ADF) should be extended to Reservists who are not engaged in continuous full-time service; or

(b)   if there is no intention to extend the application of DI(G) PERS 25-2 and DI(G) PERS 25-3 to Reservists who are not engaged in continuous full-time service, Defence develops specific policies covering the civilian employment of, and the disclosure of conflicts of interests by, those personnel.

Response - Agreed.

Defence has incorporated DI(G) PER 25-3 into a revised version of DI(G) PERS 25-6 (Conflict of Interest and Declaration of Interest) which came into effect on 29 March 2011. The revised DI(G) PERS 25-6 applies to a “Defence Member” as defined in section 3 of the Defence Act. This definition of “Defence Member” includes Permanent members of the Navy, Army and Air Force, and members of the Reserves who (a) are rendering continuous full-time service or (b) are on duty in uniform.

DI(G) PERS 25-2 is currently under review and will be revised to include the definition of 'Defence Member' to align with the definition in DI(G) PERS 25-6.

As Defence has agreed to Recommendation 2(a) there is no requirement to develop the specific policies requested in Recommendation 2(b).

Recommendation 3 paragraph 10.21

The committee recommends that, prior to the re-tendering of any future contracts for the provision of air sustainment services to the MEAO, Defence ensures that:

(a)   all Reserve personnel involved in the procurement complete a conflict of interest declaration; and

Response - Agreed.

This recommendation accords with usual Defence procurement practice as set out in the DPPM, Chapter 3.13. In addition, the attached Probity Plan contains a specific requirement in this regard.

(b)   commanding officers or supervisors in 1 JMOVGP:

(i)   make a risk-based assessment as to which other Reserve personnel must complete a conflict of interest declaration and which personnel do not;

(ii)   in making a risk-based assessment, give consideration to identifying and obtaining conflict of interest declarations from Reservists who have associations with the commercial air charter industry. Such associations may include:

present or previous civilian employment with air transport providers;

financial interests in these companies or related companies; or

professional or social relationships with members or employees of these companies; and

(iii)   document their decisions whether or not to require these Reservists

to complete a conflict of interest declaration.

Response - Agreed in principle.

Standard Defence probity arrangements provide that only those personnel who have a genuine 'need to know' have access to confidential tender information (eg. draft requirements, tenders, and evaluation material). This ensures that personnel who are not involved in the procurement do not access confidential information relating to the process or have an ability to influence the conduct of the process.

Further, if someone in the project team is approached by someone outside the project, an obligation to report such contact has been included in the attached Probity Plan.

Accordingly, it will be the responsibility of the project manager for a future procurement of air sustainment services to ensure that all relevant personnel complete conflict of interest declarations.

Recommendation 4 paragraph 10.22

The committee recommends Defence ensures that, in all future procurements of air sustainment services to the MEAO:

All members of tender evaluation boards and working groups, and all persons involved in the development of requests, sign conflict of interest declarations. Such declarations:

(a)   should be signed prior to the commencement of the tender evaluation process or the development of the request (as applicable); and

(b)   include declarations about possible conflicts of interest arising from their employment, prior employment, financial interests in potential suppliers or relationships with persons who have interests in potential suppliers.

Response - Agreed.

This recommendation accords with Defence procurement policy and operational guidance which provides for the identification and management of conflicts of interest (see DPPM, Chapter 3.13). The probity plan templates available from the Commercial Policy and Practice Branch (CPP Branch), DMO Commercial Group, intranet site already contain a conflict of interest declaration proforma.

The timing for the completion of the conflict of interest declarations in certain circumstances is covered by the DPPM, Chapter 5.4 Request Documentation, paragraph 63, which states that 'If a probity plan is required, it should be developed and approved before commencement of the tender evaluation' at which point the conflict of interest requirements in the plan would apply (including any requirements regarding the timing for personnel to provide declarations).

In order to address the specific concerns of the Senate committee, a supplementary direction will be issued within 1 JMOVGP that all future MEAO air sustainment procurement activities must have a probity plan approved at the beginning of the procurement process (i.e. not just before the commencement of the tender evaluation).

1 JMOVGP will also direct that conflict declarations are to be obtained at the beginning of the procurement process. This requirement will also apply to all persons involved in the development of request documentation.

All members of tender evaluation boards and working groups receive specific briefings on conflicts of interest and other probity matters, prior to the commencement of tender evaluations.

Response - Agreed.

This recommendation accords with existing Defence procurement policy and practice (see DPPM, Chapter 3.13). The attached probity plan also expressly includes this requirement.

Recommendation 5 paragraph 11.20

The committee recommends that Defence:

In line with the findings of the AFCD Review, considers strategies for the improved documentation of the business case for any future decisions to re-test the market for the provision of air sustainment services to the MEAO.

Response - Agreed.

The DMO Commercial Group or the Defence Support Group, Non-Equipment Procurement Centre of Excellence (NEP COE) will assist 1 JMOVGP with the

drafting of any future business case for future decisions to market test the provision of air sustainment services to the MEAO, including ensuring the business case is in accordance with existing policy.

Reviews its procurement plan for the current MEAO contract, to ensure that sufficient lead time is provided for the making of any future decisions to re-test the market, and the planning and execution of a procurement process.

Response - Agreed.

This recommendation accords with usual Defence procurement practice. For example, DPPM, Chapter 5.0, provides guidance on the development of procurement plans. The DMO Commercial Group or the NEP COE will assist 1JMOVGP, where required.

In all future procurements of air sustainment services to the MEAO:

(a)   continues to include in procurement strategies a requirement that members of the Air Transport Standing Offer Panel are given advance notice of any decisions to re-tender the contract, prior to the release of the RFT; and

(b)   ensures that such requirements are implemented.

Response -Agreed in principle.

Defence will ensure that notice is provided to all potential suppliers in accordance with Commonwealth procurement policy as set out in the Commonwealth Procurement Guidelines (CPGs). For instance, paragraph 5.2 of the CPGs requires that “All potential suppliers should have the same opportunities to compete for government business and must, subject to these CPGs, be treated equitably based on their legal, commercial, technical, and financial abilities.”

Advance notice of a future procurement of air sustainment services would be provided through Defence's Annual Procurement Plan (APP) (where the procurement is conducted as an open approach to the market).

1 JMOVGP will ensure that, in any future re-tendering, the tender release and closing dates for the request for tender meet or exceed the minimum time limits set out in the CPGs (see paragraphs 8.56 - 8.62; see also DPPM, Chapter 5.5 Tender Advertising, Submission and Receipt, paragraphs 6 - 11).

The CPGs relevantly provide:

'8.57   Agencies need to provide sufficient time for potential suppliers to

prepare and lodge a submission in response to an approach to the market. Time Limits discussed in this section represent minimum periods and should not be

treated as default time limits for potential suppliers to lodge submissions.”

'8.61   Where an agency intends to specify conditions for participation that

require potential suppliers to undertake a separate registration or pre-qualification procedure, the agency must state the time limit for responding to

the registration or pre-qualification in the approach to the market. Any such conditions for participation must be published in sufficient time to enable all potential suppliers to complete the registration and qualification procedures within the time limit for the procurement.'

Any future procurement process for MEAO air sustainment services will comply with the CPGs, including ensuring that there is sufficient time to enable tenderers to get aircraft onto the AO certificate.

• Implements strategies to ensure that potential tenderers have a clear and accurate understanding of how Australian industry participation is taken into account in the evaluation of tender responses, as part of the overall value for money assessment.

Response - Agreed.

This recommendation accords with existing Defence procurement policy. Defence implements the requirements of the Australian Industry Participation (AIP) National Framework via its Australian Industry Capability (AIC) program. Defence procurement guidance on the AIC program is set out in DPPM, Chapter 3.12. Defence plans to update Chapter 3.12 in its 1 December update of the DPPM.

All relevant ASDEFCON templates include clauses that explain how AIC is taken into account in the evaluation of tender responses as part of the overall value for money assessment.

On the release of future requests for air sustainment services to the MEAO, implements the following actions to minimise the risk for potential proponent grievances:

(a)   provides potential tenderers with an explanation of the reasons for re-tendering the contract and any changes to tender requirements from the previous request;

Response - Agreed.

This recommendation accords with existing Defence procurement policy and practice. For instance, the covering letter that forms the first part of the relevant ASDEFCON tendering and contracting template prompts the user to provide tenderers with appropriate background information about the procurement. This could include the reasons for re-tendering the contract and any key changes to tender requirements from the previous request.

(b)   provides potential tenderers with an explanation of how the evaluation criteria in the request documentation will be assessed; and

Response - Agreed in part.

Standard Defence procurement practice is to advise tenderers about the evaluation criteria and the basic rules governing tendering evaluation. In strategic and more complex procurements, the relevant ASDEFCON templates provide greater levels of specificity about how evaluation criteria are assessed, (eg by advising tenderers about what information will be used to assess which criterion). Also, if evaluation criteria are specifically ranked in terms of their relative importance or otherwise weighted, Defence procurement practice would require this order of ranking/weighting to be provided to all tenderers.

However, the detailed evaluation methodology which is used by tender evaluation teams to evaluate tenders is set out in the tender evaluation plan (TEP). In accordance with standard Commonwealth practice, the TEP is an internal document and is not normally provided to tenderers.

(c)   includes in the request documentation, where applicable, an express statement of Defence's:

(i)   preferred solution for meeting tender requirements, including

technical specifications; and

Response -Agreed in part.

Defence procurements do not tend to mandate a preferred solution as this can be seen by potential tenderers as favouring a specific tenderer and may stifle innovation and

otherwise limit the field of potential tenderers. Instead, and consistent with paragraphs 8.46 to 8.51 of the CPGs, the Defence approach is to analyse its requirements, undertake market research, and use this information to develop requirements/specifications which focus on the expected outcome from the procurement rather than specifying a particular way of meeting the requirement.

If Defence has specific requirements or technical specifications that must be met by tenderers, then Defence policy requires that these requirements and specifications be advised to tenderers. These would normally be included in the draft Statement of Work that is included as part of the request for tender.

(ii)   intention to consider alternative solutions.

Response - Agreed.

This recommendation accords with existing Defence procurement practice and is reflected in standard Defence Conditions of Tender (for example, see ASDEFCON Complex Materiel Vol. 2, conditions of tender, clause 4.10).

As a matter of priority in future tender processes for the provision of air sustainment services to the MEAO, takes action on the tender evaluation issues identified by the Deloitte, AGS and AFCD Reviews, as documented at paragraph 11.15 of this report.

Response - Agreed.

The issues identified at paragraph 11.15 of the Senate inquiry report are either generally consistent with existing Defence procurement policy and practice, or are being addressed for inclusion within that framework. For example, DPPM, Chapter 5.4 Request Documentation, and our ASDEFCON tendering and contracting templates, provide the guidance and framework respectively for drafting request documentation. The guidance and templates cover all CPGs requirements, including minimum content and format requirements, conditions for participation, essential requirements, evaluation criteria and technical specifications.

Another example is the current work within Defence to develop Tender Evaluation Better Practice Guides for the assistance of personnel undertaking procurements. Defence recently released the Better Practice Guide: Tender Evaluation in Simple Procurement, and a better practice guide for tender evaluation in more complex procurements is currently under development.

Recommendation 6 paragraph 12.10

The committee recommends that in all future procurements of air sustainment services to the MEAO, Defence develops and implements tender evaluation processes for assessing respondents' fitness and propriety to contract with the Commonwealth. Such evaluation processes should:

(a)   identify criteria setting out requirements or indicators for being 'fit and proper' to contract with the Commonwealth;

(b)   specify searches that may be conducted on tender respondents, their key personnel, proposed subcontractors and any associated companies (for example, parent or subsidiary companies)—including guidance on the scope of the searches;

(c)   identify the possible implications of the findings of each of the specified searches; and

(d)   enable the identification and assessment of potential risks arising from issues identified in these searches including:

(i)   reputational damage to the Common­wealth, should it proceed to

contract with the relevant tenderer; and

(ii)   proponent grievances about the relevant tenderer's fitness and

propriety to contract with the Commonwealth.

Response to (a) - (d) above - Agreed.

In the conditions of tender for all future MEAO air sustainment services procurements (and as reflected in the attached Probity Plan), Defence will reserve the right to undertake probity searches of tenderers and key personnel in order to assess the issues set out in the above recommendations.

This will require the tenderer, its proposed subcontractors, and their respective key personnel, to sign relevant consent forms - allowing the Commonwealth to seek such information.

The relevant clause for inclusion in the conditions of tender is as follows:

"The Commonwealth reserves the right to perform such security, probity or financial checks and procedures as it may consider necessary in relation to the tenderer and its subcontractors, their officers, employees, partners, associates or

related entities (including consortium members and shareholders and their officers or employees if applicable). These checks may include (without limitation):

-security and probity checks including criminal history checks; -corporate history checks;

-media checks;

-litigation searches (past, present or pending);

-reference checks; and

-any other checks which the Commonwealth considers relevant.

Each Tenderer agrees to provide, at its cost, all reasonable assistance to the Commonwealth to facilitate these checks being carried out (including executing all necessary consent forms)."

It should also be noted that all the current ASDEFCON templates already contain clauses that seek a significant amount of information of this kind, including :

the tenderer's proposed key personnel. The tenderers' responses to these questions should provide the necessary information to determine if one of a tenderer's proposed key personnel fails to meet the requirements of DI(G) PERS 25-6 (Conflict of Interest and Declaration of Interest);

the tenderer's financial position; and

a declaration from the tenderer that the information they have provided is accurate and not misleading.

Defence is currently developing a Tender Evaluation Better Practice Guide for complex procurements. This document will include detailed guidance on searches that may be conducted on tender respondents, their key personnel, proposed subcontractors and any associated companies, and implications of the findings.

Recommendation 7 paragraph 12.16

The committee recommends that Defence includes in all future tender evaluation documentation for the procurement of air sustainment services to the MEAO:

specific provisions on conducting financial risk assessments of tender responses involving charter broker arrangements; and

essential requirement that proposals involving any form of broker-based solution - including sub-contracting arrangements - must include the complete financial statements of the proposed air charter operator and any other proposed sub-contractors.

Response - Agreed.

The necessary Defence procurement policy and operational guidance framework already exists to implement these recommendations (see DPPM, Chapter 3.3 Financial Policy and Advice in the Procurement Process). Defence's existing probity and tender evaluation plan templates, and the ASDEFCON conditions of tender, permit financial statements to be obtained from tenderers and financial risk assessments to be undertaken. The Financial Investigation Service (FIS), DMO Commercial Group, is able to undertake financial assessments for procurement related matters.

The attached Probity Plan also requires suggested financial risk assessment to be undertaken as part of a future procurement process for air sustainment services to the MEAO, and requires the probity adviser to ensure these matters are considered as part of the tender evaluation.

Request to Auditor-General paragraph 12.22

The committee requests that the Auditor-General:

Conduct a performance audit of the tender process in respect of RFT AO/014/09, with a focus on probity risk management. In particular, the audit should evaluate the following matters, with a view to identifying any further areas for future improvement:

(a)   Defence's governance arrangements for the identification and management of significant probity risks to the procurement process, including conflicts of interest, confidentiality and proponent grievances;

(b)   Defence's program of procurement governance and process reforms, including those outlined in its evidence to the committee; and

(c)   Any other matters considered relevant to probity risk management, or related governance matters, in respect of the procurement of air sustainment services to the MEAO.

After sufficient time has elapsed, conduct a second review to examine Defence's implementation of its program of procurement governance and process reforms. In particular the review should:

(a)   evaluate the implementation progress and impact of the reforms outlined in Defence's evidence to the committee; and

(b)   recommend, as necessary, any further reforms to probity risk management and other governance arrangements in respect of the procurement of air sustainment services to the MEAO.

Response - Not applicable.

This recommendation relates to the Auditor-General. Defence will provide all necessary support to the Auditor-General, as required.

Recommendation 8 paragraph 12.23

The committee recommends that Defence report back to the committee by 1 May 2012 on progress being made to implement the reforms it has announced including:

the ongoing performance of the 2010 contract, including the cost per mission, the realisation of projected savings, the continuing need for the increased cargo volumetric requirements and the contractor's compliance with the tender requirements;

progress on the establishment of the Centre of Excellence that is intended 'to support a more robust and consistent commercial approach to non-equipment procurement';

the work of the newly created Non-Equipment Chief Procurement Officer; and

the strategies for the recruitment and retention of suitably skilled procurement professionals.

Response - Agreed

Defence will report back to the committee as requested.

Recommendat ion 9 paragraph 12.25

Although the majority of recommendations apply to the procurement of air sustainment services to the MEAO, the committee recommends that Defence consider incorporating the principles and practices underpinning them as part of Defence wide non-equipment procurement policy.

Response - Agreed.

The majority of the principles and practices discussed in the recommendations are either consistent with existing Defence procurement policy, practice or templates (such as the DPPM or the ASDEFCON templates) or will soon be incorporated as a result of the DPPM 1 December 2011 update and the Tender Evaluation Better Practice Guides. These principles and practices apply to all Defence procurement as described in the DPPM.

In relation to training staff in the practical application of these principles and practices, for a number of years DMO, on behalf of Defence, has been working to improve the content of Defence procurement training courses. In June 2011, CPP Branch, DMO Commercial Group, finalised the design and content of the Simple Procurement Refresher course in consultation with representatives from Defence Education and Training Development (DETD). Delivery of this training course is expected to commence in October 2011. CPP Branch and DETD are also finalising the design of the Complex Procurement Refresher course. Improving Defence procurement training courses will lead to more highly skilled procurement professionals.

Corrections to Senate Report

1.   Paragraph 3.7 of the Senate inquiry report states:

'Preparation for re-tender

3.7   Defence commenced preparation for the re-tendering process in late 2009.

Two key stages—which are discussed below—were the establishment of the Air Transport Standing Offer Panel in November 2009, and the preparation and approval of the procurement strategy. Headquarters, 1st Joint Movement Group

(HQ 1JMOVGP), within the Joint Operations Command, was the area within Defence responsible for conducting the procurement. The Commanding Officer of 1 JMOVGP was Group Captain Robert Barnes. His superior officer was the Deputy Chief of the Joint Operations Command, Rear Admiral Ray Griggs.'

This is not factually correct. The command relationship is between CO 1 HQJMOVGP (ie Group Captain Barnes) and CJOPS. In practical terms, DCJOPS deals with day to day issues. While DCJOPS is a superior officer from a rank perspective, this is not in a direct line accountability sense. In addition, the paragraph implies that then RADM Griggs was GPCPT Barnes' superior officer throughout the whole process. This is not the case as then RADM Griggs did not arrive in headquarters until May 2010. RADM Griggs did not take over as DCJOPS until July2010 having spent the first 5 weeks as acting CJOPS. DCJOPS during November 2009 was AVM Greg Evans (although between November 2009 and July 2010 there were several DCJOPS primarily due to a run of ill health).

2.   The Senate inquiry report refers in a number of places to 'Dr Raymond Bromwich'. Mr Bromwich does not hold a doctorate, and accordingly the report should be corrected so that he is referred to as 'Mr Raymond Bromwich'. The relevant references are as follows:

page 23, footnote 104

page 26, footnotes 119 & 120

page 27, footnote 126

page 57, paragraph 4.2 and footnotes 1,2 & 4

page 58, footnotes 9 & 10

page 59, footnotes 11 and 12 (twice)

page 60, footnotes 17,18, 19, 20, 21 and 23

page 71, footnotes 42 & 43

page 75, paragraph 5.32 and footnotes 68 & 69

page 115, footnote 16 Appendix 4

Appendix 5 (14 July)

Note: The Probity Plan for Projects is available from the Committee Secretariat .

SENATE FOREIGN AFFAIRS, DEFENCE AND TRADE REFERENCES COMMITTEE

PART II - INCIDENTS ONBOARD HMAS SUCCESS BETWEEN MARCH AND MAY 2009 AND SUBSEQUENT EVENTS

GOVERNMENT RESPONSE

December 2011

RESPONSES TO RECOMMENDATIONS

Recommendation 1 paragraph 7.85

The Committee recommends that:

IGADF examine the inquiry processes from the initiation of the E&D health check through to the legal advice (and its consequences) provided by Colonel Griffin and Defence Legal in order to identify real or potential systemic failures in the inquiry processes and consider the practical measures needed to minimise the risk of future mistakes;

concurrently, the Fairness and Resolution Branch examine independently the

same processes in order to identify real or potential systemic failures in the inquiry processes and consider the practical measures needed that would minimise the risk of future mistakes;

at the same time, Defence Legal examine the legal advice, in respect of HMAS

Success, provided by legal officers to the senior Navy officers at that time, especially on initiating inquiries and procedural fairness, with a view to identifying any weaknesses, inconsistencies or errors in, and the overall quality of, this advice;

having carried out their respective examinations, the IGADF, the Fairness and

Resolution Branch and Defence Legal jointly consider their findings and together identify what needs to be done to rectify problems; and

by 1 December 2011, provide the committee with a report on their findings, the lessons to be learnt and their joint recommendations.

The Committee requests that the IGADF, the Fairness and Resolution Branch and Defence Legal keep a written record of the notes taken during their separate examinations and also a record of the discussions held between them when producing their joint findings. The purpose in having these notes retained, is to ensure that they would be available to the Committee should it resolve to consider matters further.

The Committee notes that for a number of years it has expressed concerns about the standard of investigations undertaken by the Australian Defence Force Investigative Service (ADFIS). The most recent revelation about significant deficiencies in this investigative service is most disturbing. The Committee suggests to ADFIS that the shortcomings identified in the investigations that took place relating to incidents onboard HMAS Success in 2009 should not be treated as an 'aberration'. In the Committee's view, they should be considered in light of the committee's 2005 findings and ADFIS' continuing attempts to improve its investigations. It should be noted that the committee found in 2005 that the ADF had 'proven itself manifestly incapable of adequately performing its investigatory function'.

The Provost Marshal, through the Minister for Defence, has been providing the Senate Foreign Affairs, Defence and Trade Legislation Committee with periodic updates on the progress of reforms to the investigative service.

Response - Agreed In Part

The Government agrees with the intent of Recommendation 1, but there are practical considerations that apply to its implementation.

With specific reference to the sub-recommendation regarding IGADF, Mr Gyles is scheduled to deliver Part 3 of the HMAS Success Commission of Inquiry in the near future.

Part 3 is focused on examining Defence inquiry processes and the relationship of inquiries with administrative or disciplinary procedures.

As well, a number of broader cultural reviews are taking place in Defence, many of which may have implications for inquiry arrangements, complaint handling mechanisms and the roles that legal officers play in those processes. These reviews include the Inspector General of the Australian Defence Force's review into the management of incidents and complaints within Defence, again expected to be released in the near future.

As these reviews are Defence wide, they will clearly examine issues beyond HMAS Success. Consequently, the Government considers that any further specific HMAS Success focused review conducted in isolation from these broader efforts will be a duplication of those other reviews, be unlikely to significantly advance matters, and may complicate the current reviews underway. This broader focus (beyond HMAS Success) of the reviews should incorporate those matters at the heart of HMAS Success as well as other Defence related procedural strengths and weaknesses.

With specific reference to the sub-recommendation that Fairness and Resolution Branch (FRB) review the Equity and Diversity (E&D) Health Check and subsequent processes, the Government considers that the FRB is not an appropriate or competent authority to examine ADF inquiry processes and related legal advice: no valid construct (FRB or otherwise) exists in Defence for the HMAS Success related E&D health check. It was a Navy creation at the time.

As the subsequent inquiry processes that resulted from the 'health check' were under the Defence Inquiry Regulations, being an integral part of the Military Justice system, these do not fall within FRB expertise. FRB had no role to play in the technical detail of the Administrative Inquiries processes for the ADF or in their application as they applied to HMAS Success or more broadly.

With specific reference to Defence Legal and in particular the sub-recommendation that Defence Legal examine the legal advice, in respect of HMAS Success, provided by legal officers to the senior Navy officers at that time, especially on initiating inquiries and procedural fairness, with a view to identifying any weaknesses, inconsistencies or errors in, and the overall quality of this advice, Mr Gyles has already identified the weaknesses and deficiencies in the legal advice provided at Fleet Headquarters in relation to HMAS Success. Remedial actions are being considered as an element of those legal related recommendations of Parts 1 and 2 of the Commission of Inquiry Report. The Government considers that further examination of this legal advice is unlikely to realise any additional benefit.

Further, the Government asks the Committee to note that in implementing the Gyles recommendations, which included the comment that Navy Legal lacked candour in the manner in which it provided legal advice in the HMAS Success matter, and that Navy Legal needs a jolt, the CDF has already ordered a review of the command and control arrangements for all ADF legal officers. This will examine their structural and organisational independence from command, particularly in the context of being free from perceptions of inappropriate command influence. This broader review will look at the potential systemic issues that led to the failings in the Fleet Legal legal advice and what, if any, structural and organisational changes may be needed to ensure, as far as possible, the independence of legal officers from command across the ADF.

With specific reference to the sub-recommendation that having carried out their respective examinations, the IGADF, the Fairness and Resolution Branch and Defence Legal jointly consider their findings and together identify what needs to be done to rectify problems; and by 1 December 2011, provide the committee with a report on their finding, the lessons to be learnt and their joint recommendations, as detailed above, the FRB does not have a role in the Administrative Inquiry process. Noting this, the forthcoming Part 3 COI report and broader cultural reviews being undertaken, the Government cannot commit to provide the Committee with a report by 1 December 2011.

Notwithstanding the comments made, the Government has indicated it agrees with the intent of Recommendation 1 and proposes to consider it following the receipt of Part 3 of Mr Gyles' report and in the context of the results arising from the various cultural reviews that are currently underway.

Recommendation 2 Paragraph 9.10

The Committee recommends that the Provost Marshal in his next update to the Senate Foreign Affairs, Defence and Trade Legislation Committee on progress in reforming ADFIS include the lessons learnt from the investigations into matters relating to HMAS Success. The Committee is not interested in individual performances but the systemic shortcomings that allowed the mistakes to occur and importantly to go undetected for some time.

Response - Agreed

The Government agrees with Recommendation 2 and the Provost Marshal Australian Defence Force will provide a formal response as an integral part of his Annual Report to CDF and subsequently will report to the Chair of the Senate Committee for Foreign Affairs, Defence and Trade.

 

Government Response

Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity

Final Report

Inquiry into the Operation of the Law Enforcement Integrity Commissioner Act 2006

The Government welcomes the Committee's Final Report, and recognises the Committee's contribution to the further development of the Law Enforcement Integrity Commissioner Act 2006 and the Commonwealth public sector integrity system generally.

The Government's approach to preventing corruption is based on the premise that no single body should be responsible. Instead, a strong constitutional foundation (the separation of powers and the rule of law) is enhanced by a range of bodies and government initiatives that promote accountability and transparency. The Commonwealth bodies involved in preventing corruption include:

Australian Consumer and Competition Commissioner

Australian Crime Commission

Australian Commission for Law Enforcement Integrity

Australian Federal Police

Attorney-General's Department

Australian National Audit Office

Australian Public Service Commission

Australian Securities and Investments Commission

Australian Taxation Office

Australian Transactions Reports and Analysis Centre

Commonwealth Director of Public Prosecutions

Commonwealth Ombudsman, and

Office of the Australian Information Commissioner

This distribution of responsibility is a great strength in Australia's approach to corruption because it creates a strong system of checks and balances.

The Australian Commission for Law Enforcement Integrity's (ACLEI's) primary role is to investigate law enforcement-related corruption issues, giving priority to systemic and serious corruption. ACLEI also collects intelligence about corruption in support of the Integrity Commissioner's functions.

The Integrity Commissioner must consider the nature and scope of corruption revealed by investigations, and report annually on any patterns and trends concerning corruption in law enforcement agencies.

In its report the Committee has made a number of recommendations concerning the Law Enforcement Integrity Commissioner Act 2006 and the Commonwealth public sector integrity system generally.

In this context, the Government is pleased to respond to the Committee's recommendations.

Recommendation 1:

The committee recommends that the Law Enforcement Integrity Commissioner Act 2006 be amended so as to establish a 'second tier' to the Act. Agencies with a law enforcement function included in this second tier would be subject to limited ACLEI oversight, under which the head of an agency, or the minister responsible for the agency, may refer a corruption issue, on a voluntary basis, for consideration by the Integrity Commissioner. The Integrity Commissioner should also have the power to commence an investigation or inquiry into a corruption issue in a second tier agency on his or her own initiative.

Noted

The Government will consider whether it is appropriate to expand ACLEI's jurisdiction to include additional agencies that perform law enforcement functions.

The establishment of the Integrity Commissioner to investigate corruption in Commonwealth law enforcement agencies is still relatively recent. ACLEI's jurisdiction was extended beyond the Australian Crime Commission (ACC) and the Australian Federal Police (AFP) to include the Australian Customs and Border Protection Service (ACBPS) on 1 January 2011. Before considering the inclusion of new agencies within ACLEI's jurisdiction, the Government considers that it is appropriate to allow 12 to18 months for ACLEI to consolidate its existing jurisdiction following the inclusion of ACBPS. That experience can then be used to properly inform any further expansion of ACLEI's functions.

All of the agencies nominated by the Committee for inclusion as tier two agencies are subject to the Public Service Act 1999 and as such are bound by the APS Values and Code of Conduct. These agencies also have existing internal and external corruption prevention and investigation measures.

Recommendation 2:

The committee recommends that ACLEI's second tier jurisdiction should initially comprise the Australian Taxation Office, the Australian Transaction Reports and Analysis Centre, CrimTrac, the Australian Quarantine and Inspection Service and the Department of Immigration and Citizenship.

Noted

See the response to Recommendation 1.

Recommendation 3:

The committee recommends that the operation of a second tier in the Law Enforcement Integrity Commissioner Act 2006 and the list of agencies prescribed in that tier be reviewed two years after initial establishment. This review should include consideration of whether any tier two agencies may more appropriately be subject to tier one prescription. Similar reviews should subsequently be conducted at two year intervals.

Noted

See the response to Recommendation 1.

Recommendation 4:

The committee recommends that the Law Enforcement Integrity Commissioner Act 2006 be amended so as to ensure that secrecy and confidentiality provisions pertaining to law enforcement agencies within ACLEI's jurisdiction do not prevent the Integrity Commissioner from receiving information necessary to the investigation of a corruption issue.

Agreed

The Government agrees that secrecy and confidentiality provisions that apply to agencies within ACLEI's jurisdiction should not prevent ACLEI receiving necessary information. Secrecy provisions in the AFP and ACC legislation contain explicit exceptions to ensure relevant information can be made available to ACLEI.

The Crimes Legislation Amendment Act (No 2) 2011 authorises the disclosure of protected information under the Customs Administration Act 1985 for the purposes of the Law Enforcement Integrity Commissioner Act 2006.

Recommendation 5:

The committee recommends that the Law Enforcement Integrity Commissioner Act 2006 be amended so that the period of appointment of the Integrity Commissioner may be extended once, beyond the five year period of appointment, for a period of up to two years by the Governor-General on recommendation of the Minister, with the approval of the committee. Any such extension to the period of appointment should apply only to a serving Integrity Commissioner and should be approved no less than three months before the expiry of the current period of appointment.

Agreed in part

The Government will introduce amendments to the Law Enforcement Integrity Commissioner Act 2006 to enable the initial sum period of appointment of the Integrity Commissioner to be extended beyond five years, for a further period of up to two years.

As the position of Integrity Commissioner is a statutory appointment made by the Governor-General, it is a matter for the executive Government and it is not appropriate for it to be subject to approval by the Committee.

Recommendation 6:

The committee recommends that the Integrity Commissioner, the Commonwealth Ombudsman, the Public Service Commissioner, the Auditor-General and the Attorney-General's Department develop a more detailed and comprehensive definition of corruption for the purposes of the Law Enforcement Integrity Commissioner Act 2006. A proposed definition should be circulated for public consultation, including this committee, no later than November 2011.

Agreed in principle

The Government agrees that the definition of corruption must be clear and appropriate, noting that the definition has relevance beyond the Law Enforcement Integrity Commissioner Act 2006. The Government accordingly agrees that the Attorney-General's Department will work with relevant agencies to clarify the definition of corruption for the purposes of the Law Enforcement Integrity Commissioner Act 2006 and undertake public consultation on this issue.

The outcome of this work could be either guidance concerning the definition or an amendment to the Law Enforcement Integrity Commissioner Act 2006 to clarify the definition itself.

The development of an effective draft definition of corruption will require research and careful discussion of the issues that is likely to take several months.

Recommendation 7:

The committee recommends that ACLEI and the Australian Public Service Commission continue to collaborate in the development of ethics training provided to public servants to include corruption prevention using ACLEI's specialised experience and knowledge.

Agreed

The Government agrees that ACLEI and the Australian Public Service Commission collaborate as appropriate in the development of ethics training provided to public servants to promote the importance of appropriate behaviour, including avoidance of corrupt activity.

Recommendation 8:

The committee recommends that the Law Enforcement Integrity Commissioner Act 2006 be amended so as to provide a mechanism by which the Public Service Commissioner, with the consent of the Integrity Commissioner, could request assistance, including on behalf of any head of a Commonwealth agency, in investigating a serious corruption issue. Such a request would be made after consideration of whether ACLEI's unique experience and powers meant that ACLEI could provide greater investigatory value than the Australian Federal Police. Furthermore, to avoid overburdening ACLEI to the detriment of its primary law enforcement focus, such an arrangement should be funded by the requesting agency.

Noted

The Government encourages agencies to share expertise and resources in appropriate circumstances. It is important to ensure that the core work of ACLEI in investigating corruption issues within law enforcement agencies is not adversely affected.

This recommendation has the potential to constitute an open-ended second tier of agencies that could be subject to ACLEI oversight. The Government considers that any extended role for ACLEI in assisting Commonwealth agencies more broadly might be most appropriately more in the nature of an advisory role, rather than an investigative role. The investigative role is appropriately discharged by the AFP.

Conferring a referral role on the Public Service Commissioner would add a layer of procedural complexity in most cases. The exception would be in those matters where the Public Service Commissioner was personally investigating the suspected misconduct of an agency head under section 41(1)(f) of the Public Service Act; in those instances the Public Service Commissioner would consult the AFP about the carriage of matters that raised potential issues of serious corruption.

Recommendation 9:

The committee recommends that the Law Enforcement Integrity Commissioner Act 2006 be amended so as to include a 'more conveniently dealt with' clause that would enable the Integrity Commissioner to refer to the Commonwealth Ombudsman issues that are not, or through the course of investigation, it is discovered are not, corruption issues but which do relate to misconduct.

Noted

The Government notes that the Integrity Commissioner currently may provide information to the Commonwealth Ombudsman, where this is appropriate. The Attorney-General's Department will continue to liaise with the Integrity Commissioner and the Commonwealth Ombudsman to ensure that these existing arrangements remain suited to their purpose.

In general, the Ombudsman has no jurisdiction in relation to misconduct in APS agencies. Allegations of suspected misconduct by an APS employee should always be passed to the relevant agency head. If the allegation concerns misconduct by an agency head, including failure to deal properly with misconduct by his/her employee(s), that is a matter that can only be inquired into by the Public Service Commissioner.

Recommendation 10:

The committee recommends that the Australian Government conduct a review of the Commonwealth integrity system with particular examination of the merits of establishing a Commonwealth integrity commission with anticorruption oversight of all Commonwealth public sector agencies, taking into account the need to retain the expertise of ACLEI in the area of law enforcement.

Noted

The Government's approach to preventing corruption is based on the premise that no single body should be responsible. Instead, a strong constitutional foundation (the separation of powers and the rule of law) is enhanced by a range of bodies and government initiatives that promote accountability and transparency. This distribution of responsibility creates a strong system of checks and balances.

The Government has undertaken and continues to undertake significant work to improve the Commonwealth integrity system. This work includes:

Developing Australia's first National Anti-Corruption Plan, an initiative announced by then Minister for Justice the Hon Brendan O'Connor MP in September 2011. In developing the Plan, the Government will examine evolving corruption threats to Australia's national interests and ways to reduce corruption risks. The Plan will also clarify the roles and responsibilities of the range of bodies that promote accountability and transparency, including the overall lead responsibility for Commonwealth anti-corruption policy development and agency coordination.

The implementation of revised Common­wealth Fraud Control Guidelines, issued by the Minister for Home Affairs and Justice on 24 March 2011, that place a greater emphasis on fraud prevention and instilling a culture of fraud awareness in Government agencies.

Working towards the establishment of a Parliamentary Integrity Commissioner (PIC), to undertake a range of functions including providing advice to parliamentarians on ethical issues, and upholding a Parliamentary Code of Conduct. The Government has referred the matter of a Parliamentary Code of Conduct, including the role of the PIC, to the House of Representatives Privileges and Members' Interests Committee and the Senators' Interests Committee. The House Committee released a discussion paper at the end of the 2011 Spring sittings. The Senate Committee is expected to report back in the 2012 Winter sittings.

Significant reforms to managing federal judicial complaints, which were announced by the Attorney-General in March 2011, to introduce greater transparency and accounta­bility in judicial complaints handling. The reforms include developing a framework to assist Chief Justices of the Federal Court, the Family Court and the Chief Federal Magistrate to manage complaints about judicial officers that are referred to them and the re-introduction of the Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill into Parliament.

The current review of Australia's implementation of the United Nations Convention Against Corruption (UNCAC). UNCAC is a binding global instrument on anti-corruption that establishes detailed mechanisms for the prevention and criminalisation of corruption, as well as international cooperation, asset recovery and information exchange.

Recent changes to the Financial Management and Accountability Regulations 1997 to enhance the role of Audit Committees. In particular, Chief Executives will be encouraged, wherever practically possible, to appoint at least one independent member. The changes also broaden the functions that an audit committee may also undertake, such as reviewing the effectiveness of an agency's governance arrangements and reviewing the adequacy of an agency's risk management framework, internal control environment and legislative compliance.

Development of a Public Interest Disclosure Bill to establish further whistleblower protections in the Commonwealth public sector. The Bill would give effect to the Government response of 17 March 2010 to the report of the House of Representatives Standing Committee on Legal and Constitutional Affairs titled Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector.

The Government considers it appropriate to implement these measures before considering whether any further review should be conducted, and notes that on the available evidence there is no convincing case for the establishment of a single overarching integrity commission.

Government Response to the Joint Standing Committee on Foreign Affairs, Defence and Trade's Human Rights Sub-Committee Report:

Human rights in the Asia-Pacific: Challenges and opportunities

Recommendation 1

The Committee recommends that

The Australian delegations to its bilateral human rights dialogues with China and Vietnam include parliamentary representation from the Human Rights Sub-Committee of the Joint Committee on Foreign Affairs, Defence and Trade; and that

The Department of Foreign Affairs and Trade provide the Human Rights Sub-Committee with an annual briefing on the outcomes of these dialogues, and on any other bilateral human rights dialogues that may later be established with countries in the Asia-Pacific.

The Government supports this recommend­ation and acknowledges the value of parliament­ary representatives participating in bilateral human rights dialogues. It has been the practice of successive governments to invite representa­tives of the Australian Parliament (including members of the Human Rights Sub-Committee of the JSCFADT) to participate in delegations.

The Department of Foreign Affairs and Trade would be pleased to provide briefings to the Human Rights Sub-Committee on the outcomes of bilateral dialogues.

Recommendation 2

The Committee recommends that AusAID adopt a human rights-based approach to guide the planning and implementation of development aid projects.

The Australian Government promotes and protects human rights through its aid program, including in the areas of gender, disability, good governance, health, education, and law and justice. While the Government does not label it a 'rights-based approach', human rights principles are integrated into the planning and implement­ation of development aid projects.

The Independent Review of Aid Effectiveness, commissioned by the Australian Government in November 2010, released their report in April 2011. The report noted that Australia's aid program is 'rich in activities that advance Australia's commitment to human rights'. The Panel also saw an opportunity to improve clarity and communication about the links between the aid program and human rights.

The Government's response 'An Effective Aid Program for Australia' (July 2011) meets this challenge by incorporating human rights into one of its key development objectives:

Improving governance in developing countries to deliver services, improve security, and enhance justice and human rights for poor people; and to improve overall effectiveness in aid delivery in partnerships between host governments and aid agencies.

Many aspects of AusAID's current policies and activities are working to advance human rights within the Asia-Pacific region. For example:

The Human Rights Fund, established in 1996, is an important mechanism for supporting human rights activities in the Asia-Pacific region through the aid program. It supports the Office of the United Nations High Commissioner for Human Rights; the Asia Pacific Forum of National Human Rights Institutions; and the Government's Human Rights Grants Scheme (HRGS).

The HRGS provides grant funding to non-government organisations and human rights institutions based or operating in developing countries. The HRGS is an important component of AusAID's overall approach to human rights and aims to build human rights capacity in areas of need across the world, including the Asia-Pacific region.

The Government's 'Development for All' strategy aims to ensure that persons with disabilities are included in, and benefit equally from, development assistance and is an important part of the aid program's broader human rights agenda. The strategy contributes to meeting our obligations under the UN Convention on the Rights of Persons with Disabilities (CRPD) by addressing the barriers experienced by persons with disabilities to social and economic opportunities throughout the Asia-Pacific.

The promotion of gender equity and the empowerment of women in partner countries is an overarching objective of Australia's aid program. AusAID is committed to ensuring the needs, priorities and interests of women are considered in all development activities and at every stage of the development process.

Recommendation 3

The Committee recommends that in responding to the need to make progress in the region on embracing and implementing the universal human rights principles contained in the core human rights treaties, the Australian Government should review its current strategies, consult closely with key regional stakeholders, and consider work already being undertaken on this issue. This should include consideration of:

human rights education to enhance understand­ing in the region of the content, benefits and practical local application of these treaties; and

ongoing support for countries to meet reporting and other participation obligations in the United Nations human rights system.

The Government supports, and will continue to implement, this recommendation.

The Government has various strategies for promoting increased ratification of, and adherence to, core human rights treaties: bilaterally (through representations, dialogues and the aid program), regionally (through support for regional organisations that promote human rights) and multilaterally (through the United Nations). These strategies are kept under review.

The Government acknowledges the import­ance of consultation and engagement with key stakeholders and continues to look for ways to seek stakeholder views effectively. In promoting human rights in the region, the Government works closely with non-government organisations (NGOs), National Human Rights Institutions, and relevant authorities. The Government also recognises the importance of ongoing human rights education in the Asia-Pacific region, which it pursues through programs such as the Australia Awards initiative (for further information please see response to recommendation 4).

Through its aid program, the Government currently provides targeted funding and technical support to a number of countries in the Asia-Pacific region to assist them to meet their international human rights treaty obligations. For example:

Australia's bilateral Human Rights Technical Cooperation (HRTC) programs with China and Vietnam have assisted the Vietnamese and Chinese Governments to meet their treaty reporting obligations and to incorporate aspects of these treaties into their domestic legal frameworks. This support has, in part, assisted China to draft national legislation on domestic violence. Vietnamese Government institutions have linked this assistance to major policy and legislative reform such as the enacted Law on Legal Education and Dissemination, the Gender Equality Law, the Law on Domestic Violence and the draft Law on Disability.

In East Timor, the aid program has supported the development of a new national disability policy and strategy on disability. In Cambodia, Australia supported the development of disability rights legislation. A new program of support will enable the Royal Government of Cambodia to ratify, and then implement, the Convention on the Rights of Persons with Disabilities (CRPD).

Australia provides funding to the Regional Rights Resource Team of the Secretariat of the Pacific Community (SPC/RRRT), which offers professional and technical support to build human rights capacity within Pacific Island governments and civil society organisations, including advice concerning obligations relating to international human rights treaties. SPC/ RRRT assists individual Pacific Island countries to develop appropriate legislation for the protection and promotion of civil society organisations and supports civil society in advocating for the establishment of human rights machinery in specific countries.

 Recommendation 4

The Committee recommends that the Australian Government establish a scholarship fund to enable individuals from non-government organisations and civil society groups in Asia and the Pacific, who work in human rights or relevant fields, to attend approved human rights courses in Australia.

The Government supports this recommend­ation and is pleased to report to the Committee that it is already being implemented through programs such as the Australia Awards initiative and the Australian Leadership Awards Fellow­ships.

The Australia Awards initiative, funded from the aid program, provides scholarships (up to 3700 in 2014) for study in Australia largely at the postgraduate level, and professional development opportunities in developing countries and in Australia.

The Australia Awards provide opportunities to address needs across governments, the private sector, NGOs and civil society. Individuals from non-government organisations and civil society groups in Asia and the Pacific are eligible for the Awards and can undertake approved human rights courses and other human rights training in Australia. AusAID works closely with whole-of-government and development partners to encourage applications that focus on priority issues, including human rights. In 2009 and 2010, students from Nepal, Indonesia, Bangladesh, Pakistan and Vietnam were enrolled in human rights courses at Australian universities through AusAID-funded scholarships.

Since 2007, AusAID has funded five human rights-related programs through the Australian Leadership Awards (ALA) Fellowships. The Fellowships are designed to provide short-term opportunities for study, research and professional attachment programs in Australia delivered by Australian organisations. For example, Justice Equality Rights Access International Ltd (JERA International) received an award in 2010 to host 12 Fellows from the All China Women's Federation and Research Centre for Human Rights and Humanitarian Law and the Peking University Law School for Human Rights.

Training is also provided to NGOs and civil society groups in developing countries under the Human Rights Grants Scheme. In 2009-10, seven grants were provided to train representatives from NGOs on human rights issues.

Recommendation 5

The Committee recommends that the Australian Government appoint a special envoy for Asia-Pacific regional cooperation on human rights, to undertake consultations with countries in Asia and the Pacific, and report to the Government within 12 months. The special envoy should engage in discussion in the region on how Australia can best support regional approaches to the protection and promotion of human rights, and the redress for human rights violations in the Asia-Pacific. The special envoy's responsibilities should be determined by the Minister for Foreign Affairs, but could include:

undertaking high-level political consultations about the establishment of a Pacific subregional human rights mechanism and a wider Asia-Pacific regional mechanism; and

consulting with government officials and key regional non-government stakeholders.

The Government does not support this recommendation.

While recognising the desirability of greater regional cooperation on human rights, the Government notes that evidence presented to the Committee strongly cautioned against Australia being seen to be the driving force behind the establishment of a regional human rights mechanism. The Government considers that supporting practical, grassroots activities and initiatives is a more effective way to promote human rights in the Asia-Pacific. This is considered more likely to achieve broad support from countries in the region for human rights objectives.

The Government also notes that its network of Posts throughout the Asia-Pacific often perform a similar function to the one proposed for a Special Envoy on Human Rights, including providing advice on how Australia can support regional human rights initiatives. For example, the Australian embassies in Jakarta and Singapore provided extensive information and advice to Canberra over a number of months on the negotiations surrounding the formation of the ASEAN Inter-Governmental Commission on Human Rights (AICHR).

This advice informed Prime Minister Gillard's announcement in October 2010 at the ASEAN-Australia Summit in Hanoi that Australia would provide funding to support engagement between the Australian Human Rights Commission and AICHR so that the two Commissions could build strong linkages. In addition, Australian Heads of Mission regularly make representations on human rights concerns to foreign governments in the region and Posts routinely report to Canberra on human rights issues.

The Australian Government is pleased with the recent appointment of a Human Rights Adviser by the Pacific Islands Forum Secretariat. The Government encourages and supports the human rights activities being undertaken by the Pacific Islands Forum Secretariat and the Regional Rights Resource Team (SPC/RRRT) of the Secretariat of the Pacific Community, including their work to explore a regional, demand-driven human rights mechanism.

The Australian Government also supports the Pacific Islands Law Officers' Network (PILON) in complementing the Pacific Islands Forum's efforts to improve the protection and promotion of human rights in the region. PILON's initiatives and activities in this respect are coordinated through the PILON Secretariat. For example, PILON members were encouraged at the 2009 meeting to consider their own legislative frame­works for compliance with international human rights instruments. In 2010, the PILON Secretar­iat, temporarily based in the Commonwealth Attorney General's Department, coordinated and distributed to members a discussion paper on the implications of a regional human rights charter for the Pacific. The Australian Government will continue to participate in PILON human rights activities and initiatives, coordinated through the PILON Secretariat.

JOINT STANDING COMMITTEE ON TREATIES

REPORT 110: TREATIES TABLED ON 18, 25 (2) AND 26 NOVEMBER 2009 AND 2 (2) FEBRUARY 2010

GOVERNMENT RESPONSE

Recommendation 3: Exchange of Notes constituting an Agreement between the Government of the United States of America and the Government of Australia to amend the Agreement concerning Space Vehicle Tracking and Communication Facilities of 29 May 1980, as amended

Recommendation 3: The Committee recommends that the Minister for Foreign Affairs write to all other ministers to remind them that, when they are planning to enter into a treaty, they must factor in the agreed 15 to 20 sitting day timeframe for the Committee to conduct its inquiry.

The Government agrees with the Committee that requests for the expeditious consideration of a treaty should be reserved for exceptional circumstances. The Acting Minister for Foreign Affairs, the Hon Dr Craig Emerson MP, wrote to Ministers on 16 September 2011 to remind them of the need to factor in the 15 to 20 sitting day timeframe when tabling treaty actions.

Treaty tabling timeframes are also highlighted in the 2011 edition of Signed, Sealed and Delivered - Treaties and Treaty Making: Officials' Handbook. This handbook contains the domestic and international legal framework supporting treaties and sets out the steps involved in treaty making, including critical timelines and individ­ual departments' and agencies' responsibilities. It is widely distributed and readily available to assist officials from all Commonwealth agencies. When dealing with line agencies about tabling treaties, Treaties Secretariat staff regularly reinforce the information regarding the import­ance of maintaining the timelines set out in Signed, Sealed and Delivered. The need to factor in the agreed timeframe for Committee inquiries and deliberations in respect of treaty actions is also emphasised in the annual Treaty Seminar conducted by the Treaties Secretariat of the Department of Foreign Affairs and Trade.

Recommendations 4-7: Extradition Treaty between Australia and the Republic of India and the Treaty between Australia and the Republic of India on Mutual Legal Assistance in Criminal Matters

The Government thanks the Committee for its consideration of the Extradition Treaty between Australia and the Republic of India and the Treaty between Australia and the Republic of India on Mutual Legal Assistance in Criminal Matters. The Government provides the following responses to the Committee's recommendations.

Recommendation 4: The Committee recommends that new and revised extradition agreements should explicitly provide a requirement that the requesting country provide annual information concerning the trial status and health of extradited persons and the conditions of the detention facilities in which they are held.

The Government does not accept this recommendation.

The Committee suggests that implementing this recommendation would mitigate perceived risks resulting from the introduction of the 'no evidence' standard in Australian extradition practice in 1986. The Government does not consider that the removal of the prima facie case requirement is directly relevant to the question of human rights protections available to a person following his or her surrender to another country. An assessment of whether or not an application for extradition has met the prima facie standard of evidence is separate from consideration of post-extradition issues such as the person's trial status, health and conditions of detention.

Further, and more importantly, the Govern­ment considers that the most appropriate time at which to examine any potential human rights concerns is before extradition occurs. The extensive review process during extradition proceedings provides ample opportunity for any such concerns to be raised and investigated.

This approach is consistent with Australia's obligations under international human rights law and mirrors Australia's approach to considering the risk of human rights abuses before an individual is removed from Australia under the Migration Act 1958. It is also consistent with international extradition practice. It is likely that current and potential extradition partners would not be prepared to accept the inclusion of explicit monitoring obligations in extradition arrange­ments with Australia.

The extradition process in Australia includes extensive procedural safeguards. These safeguards are included in the Extradition Act 1988, as well as in bilateral treaties. For example, Article 4(3)(d) of the Extradition Treaty between Australia and the Republic of India provides for the refusal of an extradition request where the Requested State believes that the surrender is likely to have exceptionally serious consequences for the person whose extradition is sought, including because of the person's age or state of health. This is in addition to other internationally accepted grounds of refusal, such as where the death penalty may be imposed or where the Requested State has substantial grounds to believe that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person's race, sex, religion, nationality or political opinion.

Further, as noted in the Government Response to Report 91 of the Committee, Australia has established monitoring mechanisms in relation to Australian nationals who have been extradited overseas. This monitoring is able to be conducted because of the consular rights provided for under the Vienna Convention on Consular Relations and the resources provided to support Australia's consular network. The consular role reflects the Australian Government's particular responsibility for assisting its nationals while overseas.

Also consistent with the Government Response to Report 91, the Government has agreed to include additional information on persons extradited from Australia in the Annual Reports of the Attorney-General's Department, including information on:

extradition requests granted by Australia and the categories of the relevant offences by reference to the countries which made the request the number of Australian permanent residents extradited, and any breaches of substantive obligations under bilateral extradition agreements noted by Australian authorities.

Recommendation 5: The Committee recommends that all Australians who are subject to extradition should receive a face to face meeting with an Australian consular official, except where the person has made explicit their objection to consular assistance to the satisfaction of consular officers.

The Government accepts this recommendation. Current Australian Government procedures ensure that, wherever practically and legally possible, consular officials visit Australians who are imprisoned overseas at least annually, and normally more frequently than this. In some limited circumstances, face to face meetings may not be practicable or necessary. For example, in a large country such as the United States where there are significant numbers of Australians imprisoned, they are widely dispersed and consular staff are familiar with the standard of prison conditions, consular assistance can be provided satisfactorily via regular telephone calls to the prisoner.

Recommendation 6: The Committee recommends that, when a foreign national is extradited from Australia to a third country, the Australian Government formally advise the government of that person's country of citizenship that one of its nationals has been extradited from Australia to a third country.

The Government accepts this recommendation in principle. When foreign nationals are detained in Australia for the purposes of extradition, law enforcement officers will generally inform them that they are entitled to request that their consular authorities be informed of their detention, and consular authorities are entitled to visit and communicate with the person. In accordance with the constraints of disclosure of personal information under the Privacy Act 1988, the Government will only notify the extraditee's country of citizenship of their detention and extradition if the individual consents to the disclosure of personal information.

Recommendation 7: The Committee supports the Extradition Treaty between Australia and the Republic of India and the Treaty between Australia and the Republic of India on Mutual Legal Assistance in Criminal Matters and recommends that binding treaty action be taken.

The Government accepts this recommendation. Regulations have been made under the Extradition Act 1988 and the Mutual Assistance in Criminal Matters Act 1987. The treaties entered into force on 20 January 2011.