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Tuesday, 3 February 2009
Page: 67


The ACTING DEPUTY PRESIDENT (Senator Hurley)—Pursuant to standing orders 38 and 166, I present documents listed below which were presented to the President, the Deputy President and temporary chairs of committees since the Senate last sat. In accordance with the terms of the standing orders, the publication of the documents was authorised. I also present documents and responses to resolutions of the Senate as listed below. In accordance with the usual practice and with the concurrence of the Senate I ask that the government responses be incorporated in Hansard.

The list read as follows—

Committee reports

   Legal and Constitutional Affairs Committee—Report, together with the Hansard record of proceedings and documents presented to the committee—Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (received 12 December 2008)

   Environment, Communications and the Arts Committee—Report, together with the Hansard record of proceedings and documents presented to the committee—Commonwealth Radioactive Waste Management (Repeal and Consequential Amendment) Bill 2008 (received 18 December 2008)

Government responses to parliamentary committee reports

   Joint Standing Committee on the National Capital and External Territories—Report—The way forward: Inquiry into the role of the National Capital Authority (received 11 December 2008)

   Parliamentary committee reports. President’s report on government responses outstanding as of June 2008 (received 16 December 2008)

   Parliamentary Joint Committee on Intelligence and Security—Review of security and counter terrorism legislation (received 23 December 2008)

   Parliamentary Joint Committee on Intelligence and Security—Inquiry into the proscription of ‘terrorist organisations’. under the Australian Criminal Code (received 23 December 2008)

   Finance and Public Administration Committee—Report—Knock, knock who’s there? The Lobbying Code of Conduct (received 15 January 2009)

   Joint Committee of Public Accounts and Audit—411th report: Progress on equipment acquisition and financial reporting in Defence (received 27 January 2009)

Ministerial statement

Immigration—Changes to the 2008-09 skilled migration program—Ministerial statement by the Minister for Immigration and Citizenship (Senator Evans).

Government documents

Australian Building and Construction Commissioner—Report for 2007-08. [Received 22 December 2008]

Australian Communications and Media Authority—Communications report for 2007-08. [Received 5 December 2008]

Australian Crime Commission—Report for 2007-08. [Received 9 January 2009]

Australian Electoral Commission—Report for 2007-08—Correction. [Received 2 February 2009]

Australian Landcare Council—Report for 2007-08. [Received 11 December 2008]

Australian Law Reform Commission—Report No. 104—Fighting words: A review of sedition laws in Australia, July 2006—Government response. [Received 23 December 2008]

Australian Political Exchange Council—Report for 2006-07. [Received 22 December 2008]

Australian Rail Track Corporation Ltd (ARTC)—Report for 2007-08. [Received 16 December 2008]

Classification Board and Classification Review Board—Reports for 2007-08—Addendum. [Received 24 December 2008]

Commonwealth Electoral Act 1918—2008 Redistribution into electoral divisions— Western Australia—Report, together with composite maps [2] and compact disc of supporting information. [Received 16 January 2009]

Dairy Australia Limited—Report for 2007-08. [Received 18 December 2008]

Department of Education, Employment and Workplace Relations—Australian vocational education and training system—Report for 2007. [Received 12 December 2008]

Department of Finance and Deregulation—Consolidated financial statements for the year ended 30 June 2008. [Received 9 December 2008]

Environment Protection and Biodiversity Conservation Act 1999—National and Commonwealth Heritage Lists—Report for the period 1 January 2004 to 30 June 2008. [Received 12 January 2009]

Estimates of proposed additional expenditure for 2008-09—Portfolio additional estimates statements—Portfolios and executive departments—Health and Ageing portfolio. [Received 10 December 2008]

Executive Director of Township Leasing—Report for 2007-08. [Received 10 December 2008]

Export Wheat Commission—Report for the period 1 October 2007 to 30 June 2008. [Received 17 December 2008]

Federal Magistrates Court of Australia—Report for 2007-08—Errata. [Received 27 January 2009]

Gene Technology Regulator—Quarterly report for the period 1 July to 30 September 2008. [Received 21 January 2009]

High Court of Australia—Report for 2007-08. [Received 16 December 2008]

Inquiry into the case of Dr Mohamed Haneef—

Report by the Hon. John Clarke QC, November 2008. [Received 23 December 2008]

Government response. [Received 23 December 2008]

Members of Parliament (Staff) Act 1984—Report for 2007-08. [Received 23 December 2008]

National Capital Authority—Report for 2007-08. [Received 9 December 2008]

National Health and Medical Research Council (NHMRC)—NHMRC Licensing Committee—Report on the operation of the Research Involving Human Embryos Act 2002 for the period 1 April to 30 September 2008. [Received 15 December 2008]

Native Title Act 1993—Native title representative bodies—Central Land Council—Report for 2007-08. [Received 10 December 2008]

Pharmaceutical Benefits Pricing Authority—Report for 2007-08. [Received 18 December 2008]

Private Health Insurance Administration Council—Report for 2007-08 on the operations of the registered health benefits organisations. [Received 17 December 2008]

Tax expenditures statement 2008, dated January 2009. [Received 29 January 2008]

Reports of the Auditor-General

Auditor-General—Audit reports for 2008-09—

No. 12—Performance audit—Active after-school communities program—Australian Sports Commission. [Received 10 December 2008]

No. 13—Performance audit—Government agencies’ management of their websites—Australian Bureau of Statistics; Department of Agriculture, Fisheries and Forestry; Department of Foreign Affairs and Trade. [Received 16 December 2008]

No. 14—Financial statement audit—Audits of the financial statements of Australian Government entities for the period ended 30 June 2008. [Received 17 December 2008]

No. 15—Performance audit—The Australian Institute of Marine Science’s management of its co-investment research program—Australian Institute of Marine Science. [Received 18 December 2008]

No. 16—Performance audit—The Australian Taxation Office’s administration of business continuity management—Australian Taxation Office. [Received 22 December 2008]

No. 17—Performance audit—Administration of Job Network outcome payments—Department of Education, Employment and Workplace Relations. [Received 28 January 2009]

Departmental and Agency Contracts—Order for Production of Documents—Document

Departmental and agency contracts for 2008—Letter of advice—Department of Agriculture, Fisheries and Forestry.

Departmental and Agency Appointments—Order for Production of Documents—Documents

Departmental and agency appointments—Additional estimates—Letters of advice—

Agriculture, Fisheries and Forestry portfolio agencies. [Received 2 February 2009]

Australian Institute of Family Studies portfolio agencies. [Received 2 February 2009]

Broadband, Communications and the Digital Economy portfolio agencies. [Received 29 January 2009]

Defence portfolio agencies. [Received 30 January 2009]

Infrastructure, Transport, Regional Development and Local Government portfolio agencies. [Received 30 January 2009]

Treasury portfolio agencies. [Received 2 February 2009]

Veterans’ Affairs portfolio agencies. [Received 30 January 2009]

Departmental and Agency Grants—Order for Production of Documents—Documents

Departmental and agency grants—Additional estimates—Letters of advice—

Agriculture, Fisheries and Forestry portfolio agencies. [Received 2 February 2009]

Attorney-General’s portfolio agencies. [Received 27 January 2009]

Australian Institute of Family Studies portfolio agencies. [Received 2 February 2009]

Defence portfolio agencies. [Received 30 January 2009]

Department of Broadband, Communications and the Digital Economy. [Received 29 January 2009]

Infrastructure, Transport, Regional Development and Local Government portfolio agencies. [Received 30 January 2009]

Treasury portfolio agencies. [Received 2 February 2009]

Veterans’ Affairs portfolio agencies. [Received 30 January 2009]

Senate Committee Reports—Register 2008 Supplement—Document

Senate Committee Reports—Consolidated register of Senate committee reports—2008 supplement.

Business of the Senate—1 January to 31 December 2008—Document

Business of the Senate—1 January to 31 December 2008.

Questions on Notice Summary—Document

Questions on notice summary—12 February to 31 December 2008.

Standing Order 37(3)—Access to Committee Documents—Documents

Standing order 37(3)—Access to committee documents—Reports to the Senate [2].

Auditor-General—Audit Report No. 18 of 2008-09—Document

Auditor-General—Audit report no. 18 of 2008-09—Performance audit—The administration of grants under the Australian political parties for democracy program—Department of Finance and Deregulation.

Environment—Pesticides—Document

Environment—Pesticides—Letter to the President of the Senate from the Minister for Agriculture, Fisheries and Forestry (Mr Burke) responding to the resolution of the Senate of 25 November 2008, dated 13 January 2009.

Industry—Fishing—Moreton Bay—Document

Industry—Fishing—Moreton Bay—Letter to the President of the Senate from the Premier of Queensland (Ms Bligh) responding to the resolution of the Senate of 27 November 2008, dated 2 January 2009.

Environment—Tasmania—Tarkine Forest—Document

Environment—Tasmania—Tarkine Forest—Letter to the President of the Senate from the Minister for Infrastructure, Transport, Regional Development and Local Government (Mr Albanese) responding to the resolution of the Senate of 1 December 2008, dated 22 December 2008.

Environment—South Australia—Trees For Life—Document

Environment—South Australia—Trees For Life—Letter to the President of the Senate from the Chief Executive Officer, Trees For Life (Ms Dundon) responding to the resolution of the Senate of 2 December 2008, dated 11 December 2008.

Ordered that the Business of the Senate for 1 January to 31 December 2008 be printed.


The government responses read as follows—

AUSTRALIAN GOVERNMENT RESPONSE REPORT OF THE JOINT STANDING COMMITTEE ON THE NATIONAL CAPITAL AND EXTERNAL TERRITORIES

THE WAY FORWARD - INQUIRY INTO THE ROLE OF THE NATIONAL CAPITAL AUTHORITY

Minister for Home Affairs

DECEMBER 2008

Introduction

On 19 February 2008, the Minister for Home Affairs, the Hon Bob Debus MP, requested the Joint Standing Committee on the National Capital and External Territories (‘the Joint Standing Committee’) to inquire into and report on the role of the National Capital Authority (‘the Authority’).

The terms of reference for the inquiry required the Joint Standing Committee to review the:

  • administration of the National Capital Plan (‘the Plan’);
  • Authority’s governance arrangements;
  • level of oversight required to achieve the highest standards in design in the Australian Capital Territory (ACT);
  • opportunities for greater cooperation with ACT Government planning authorities; and
  • promotion of the national capital.

The Joint Standing Committee identified three key objectives for its inquiry:

  • to ensure that the Commonwealth protect and promote the unique design of Canberra because it represents the intrinsic character of the national capital;
  • where possible, align land administration with planning jurisdiction; and
  • foster greater co-operation and collaboration between the Commonwealth and the ACT Governments on planning and related matters.

On 16 July 2008, the Joint Standing Committee tabled its report The Way Forward - Inquiry into the Role of the National Capital Authority (‘the Report’).

The Government will take the opportunity of this latest Joint Standing Committee report to consider how best to meet the Commonwealth’s obligation to the national capital. Issues considered in the process may be outside the scope of the Joint Standing Committee’s specific recommendations, but will address the issues raised.

The Government acknowledges the important work of the Joint Standing Committee and wishes to maintain the momentum created by the inquiry and Report. However, the Government will not immediately commit to all the current recommendations because it might need to implement the recommendations differently after a review of planning and land management responsibilities (discussed in the Government’s response to Recommendation 14).

Background

The Authority was established in 1989, under the Australian Capital Territory (Planning and Land Management) Act 1988 (‘the Act’). The Authority comprises five members: currently a part-time Chairperson; a full-time Chief Executive; and three part-time non-executive members.

The functions of the Authority are established under section 6 of the Act. The functions are:

  

(a)   to prepare and administer the National Capital Plan;

(b)   to keep the Plan under constant review and to propose amendments to it when necessary;

(c)   on behalf of the Commonwealth, to commission works to be carried out in Designated Areas in accordance with the Plan where neither a Department of State of the Commonwealth nor any Commonwealth authority has the responsibility to commission those works;

(d)   to recommend to the Minister the carrying out of works that it considers desirable to maintain or enhance the character of the national capital;

(e)   to foster an awareness of Canberra as the national capital;

(f)   with the approval of the Minister, to perform planning services for any person or body, whether within Australia or overseas; and

(g)   with the Minister’s approval, on behalf of the Commonwealth, to manage national land designated in writing by the Minister as land required for the special purposes of Canberra as the national capital.

The Act establishes the Plan, which ensures that Canberra and the Territory ‘are planned and developed in accordance with their national significance’. The Act also establishes the Territory Plan, which ensures, in a manner not inconsistent with the Plan, that the ACT is planned and developed to provide the people of the Territory with an attractive, safe and efficient environment in which to live and work and have their recreation.

The powers of the Minister are established by section 7(1) of the Act, which allows the Minister to give the Authority general direction, in writing, as to the performance of its functions.

The process for developing and amending the Plan is set out in sections 14 to 23 of the Act. In performing this function, the Authority has the independence to propose amendments to the Plan, which the Minister may approve.

Summary of the Report

The Joint Standing Committee proposed that the governance arrangements of the Authority should allow more independence to the Authority, commensurate with its status as a statutory authority. The Joint Standing Committee also recommended the development of a single integrated planning document for the ACT, comprising the National Capital Plan and the Territory Plan. The plan would be integrated through agreed definitions and clear geographic boundaries.

Chapters 1-3 of the Joint Standing Committee’s report provide a summary of the Joint Standing Committee’s role, previous reviews undertaken of the Authority and the role of the Authority. Recommendations are contained in Chapter 2 and Chapters 4-11.

The Joint Standing Committee’s report contains 22 recommendations. The Government accepts 13 of those recommendations in full, in part or in principle.

The Government does not accept four recommendations that primarily relate to delegating planning powers to the ACT, the functions of the proposed National Capital Consultative Council and providing funding for a three dimensional digital plan.

The Government notes that the proposed Council is similar in form to the Minister for Home Affairs’ Minister’s Canberra Consultative Forum. This forum enables ACT region representatives to express their views to the Minister for Home Affairs and the ACT Chief Minister. The Government considers that any changes to the Forum and the establishment of a new council should only have a consultative function, rather than any specific decision-making or recommendatory functions.

The Government has noted five recommendations relating to: the position of Commonwealth Architect; airport planning; the preparation of a joint sustainable transport plan; resourcing for the Authority; and an independent review mechanism for certain decisions of the Authority.

The Government considers that the creation of the position of Commonwealth Architect may duplicate the role or the services currently available to the Authority.

Recommendation 1: That the Commonwealth Government affirm its direct and enduring commitment to the future of Canberra as a planned national capital on behalf of all Australians.

The Government accepts this recommendation.

The Commonwealth has an enduring interest and commitment to the future of Canberra as a planned national capital on behalf of all Australians. The ACT is vested in the Commonwealth by virtue of section 125 of the Constitution for establishing the Seat of Government. Canberra is the home of our democratic institutions such as the Parliament of Australia and the High Court. Canberra is a unique capital city. It is one of only four capital cities in the world that has been planned as a capital city from its inception.

Canberra is also home to the memorials that honour the men and women who sacrificed their lives to protect the interests and values of the people of Australia. In Canberra, icons of national significance, like the National Museum of Australia, reflect our national identity, ideals and aspirations.

The Government affirms its direct and enduring commitment to the future of Canberra as a planned national capital on behalf of all Australians.

Recommendation 2: That the Australian Capital Territory (Planning and Land Management) Act 1988 be amended to include the following provisions:

  • That the National Capital Authority board consists of a Chairperson and seven members.
  • That a minimum of two National Capital Authority board members be from the ACT region.
  • That a person appointed as a National Capital Authority board member by the Commonwealth Government must have qualifications or expertise relevant to a field related to the Authority’s functions as set out in section 6 of the Australian Capital Territory (Planning and Land Management) Act 1988.
  • That the Chief Executive no longer have ex-officio status on the National Capital Authority board.
  • That the appointment of Chief Executive should be made on recommendation of the National Capital Authority board and the Chief Executive be fully accountable to the board.

The Government accepts this recommendation in part.

The Government agrees in principle to amending the Act to provide for the Authority comprising a minimum of five and a maximum of seven members. However, the Government will consider the overall structure of the Authority in the context of the inter-governmental committee that will consider how to best align and streamline planning and land management (discussed in the Government’s response to Recommendation 14).

The Government also agrees that greater engagement of local and national perspectives is one way of ensuring that the ACT and Commonwealth Government interests in the development of the national capital are properly considered.

The Government does not agree that the Chief Executive should not be a member of the Authority. The Chief Executive will continue to remain on the Authority board, while being responsible for staff of the Authority as an Agency Head for the purposes of the Public Service Act 1999 and the Financial Management and Accountability Act 1997. The Chief Executive will continue to provide operational and advisory support to the Authority in the exercise of its statutory functions.

Recommendation 3: That the Australian Capital Territory (Planning and Land Management) Act 1988 be amended to require the Chairperson of the National Capital Authority to appear twice a year before the Joint Standing Committee for the National Capital and External Territories.

The Government accepts this recommendation in principle.

The Government supports increased accountability measures to allow for greater scrutiny of the operations of the Authority. The Chairperson should be accountable for the Authority’s performance of its statutory functions. The Government notes that the appropriate mechanism to achieve the objective of this recommendation is an amendment to the Joint Standing Committee’s Standing Resolution of Appointment and will refer consideration of the change to the Committee Secretariat.

Recommendation 4: That a National Capital Consultative Council be established. This Council would have representatives from the Commonwealth Government and the ACT Government, the community and business. The Council would be co-chaired by the responsible Minister and the ACT Chief Minister.

The Government accepts this recommendation in principle

The Government agrees that consultative mechanisms enabling the Commonwealth to hear from the ACT Government, ACT community and business representatives would provide valuable information and support to the reform process.

The Government notes that the Minister for Home Affairs has an existing Canberra Consultative Forum and will consider whether this forum can form the basis for a National Capital Consultative Council.

The Forum, and its predecessor, the Canberra Region Ministerial Forum, has been a longstanding mechanism for fostering links between the Commonwealth Government, the ACT Government and the Canberra business community.

The Council will assist the Government in its further consider the planning relationship between the Commonwealth Government and the ACT Government in the context of its review to streamline planning and land management responsibilities in the ACT (discussed in the Government’s response to Recommendation 14).

Recommendation 5: That the Commonwealth Government establish the position of Commonwealth Architect within the Department of the Prime Minister and Cabinet.

The Government notes this recommendation.

The Government, including the Authority and the responsible Minister, has the power to obtain any advice it requires in the performance of its functions. This includes obtaining architectural services. Section 44 of the Act allows the Minister, upon recommendation of the Authority, to appoint a committee to give advice to the Authority or to assist in the performance of its functions.

The Government expects that the Authority will continue to seek advice of highly skilled and experienced architects when required. The Government will also retain the ability to obtain architectural advice on its building and/or land management projects through normal departmental procurement mechanisms.

The Government is also concerned that the creation of the position of Commonwealth Architect may only serve to duplicate and complicate the role of the Authority in the exercise of its statutory functions relating to planning and development of areas of land in the ACT.

If the Government is provided with further evidence that the position of Commonwealth Architect is desirable, and will not duplicate the functions of the Authority, then it may be considered further.

Recommendation 6: That the Australian Capital Territory (Planning and Land Management) Act 1988 be amended to require all draft amendments to the National Capital Plan and all proposed works (with the exception of de-minimus works) in the Parliamentary Zone to be referred to the Joint Standing Committee on the National Capital and External Territories for its consideration and report, if necessary, within three months.

The Government accepts this recommendation in principle.

The Government values the important role the Joint Standing Committee plays in scrutinising and reporting on draft amendments to the Plan. Since its inception, the Joint Standing Committee has undertaken several reviews of the Authority and its operations.

However, the Joint Standing Committee is established by resolution of appointment of both Houses of Parliament. The Speaker of the House of Representatives and the President of the Senate must introduce amendments to the resolution. Both Houses of Parliament must agree to any amendment to the resolution of appointment of the Joint Standing Committee.

The Government is encouraged by the Joint Standing Committee’s resolve to review all draft amendments to the Plan and all proposed works (with the exception of de-minimus works) in the Parliamentary Zone. The Government notes that any expansion of the Joint Standing Committee will likely involve an increase in responsibilities and administrative burdens to the Joint Standing Committee. The Joint Standing Committee has indicated that it is willing to accept this eventuality.

The Government will consider how best to implement this recommendation in the context of its review to streamline planning and land management responsibilities in the ACT (discussed in the Government’s response to Recommendation 14).

Recommendation 7: In the interest of improving uniformity between the two planning systems, the Development Assessment Forum model should be assessed by the National Capital Authority for its relevance and application to the National Capital Plan and a report provided to the Joint Standing Committee and Minister within three months from the date of the Government Response to this report.

The Government accepts this recommendation in principle.

The Government will ask the Authority to make an assessment of the relevance and application of the Development Assessment Forum model in the context of its review to streamline planning and land management responsibilities in the ACT (discussed in the Government’s response to Recommendation 14).

Recommendation 8: That existing relevant Commonwealth and Territory legislation be amended to protect the heritage of all Designated Areas in Canberra.

The Government accepts this recommendation in principle.

The Government understands that, although the ACT can list heritage places in Territory Land that is Designated Area, the usual statutory systems of the ACT and Commonwealth governments to protect the places do not generally apply. The Government will work with the ACT Government to consider how best to implement this recommendation in the context of aligning and streamlining planning and land management responsibility (discussed in the Government’s response to Recommendation 14).

Recommendation 9: That the role of the National Capital Authority be clarified to include promotion of the national cultural icons located in the Central National Area.

The Government accepts this recommendation in principle.

The Authority’s current promotion function under section 6(e) of the Act is to foster an awareness of Canberra as the national capital. The Government accepts that greater clarity may be given to this particular function to provide certainty as to the scope and purpose of the Commonwealth’s role in this area.

Recommendation 10: That the National Capital Consultative Council prepare a domestic and international tourism and marketing plan for the national capital for consideration by both the ACT and Commonwealth Governments in their next respective budgets. In addition, the Committee recommends that such a plan factor in the Centenary of Canberra celebrations in 2013.

The Government does not accept this recommendation.

Under Schedule 4 of the Australian Capital Territory (Self-Government) Act 1988, the ACT Government has responsibility for governing matters relating to tourism. The Government recognises that the Commonwealth has a responsibility to promote the national capital for its national significance. However, the Government considers that the preparation of a joint tourism and marketing plan would enmesh the Commonwealth Government in areas of traditional responsibility of the ACT Government.

The Government agrees that the Centenary of Canberra in 2013 is an opportunity to celebrate the role of Canberra as a national capital to Australia. Australians should be afforded an opportunity to experience and learn more about Canberra as a national capital.

The Government is committed to celebrating and commemorating Canberra’s centenary and will work with the ACT Government to ensure that there is a national celebration of the capital as a place of national significance and meaning that represents our national identity, heritage, culture and democratic values.

The Government is canvassing options for how best to celebrate and commemorate Canberra’s centenary in consultation with the ACT Government.

Recommendation 11: That the Department of Infrastructure, Transport, Regional Development and Local Government consult with the National Capital Authority to ensure that the Airport Master Plan and the major development plan is in line with the National Capital Plan.

The Government notes this recommendation.

The Airports Act 1996 (‘the Airports Act’) and associated regulations provide a comprehensive regulatory regime to ensure orderly land use planning and development of the leased Commonwealth airports. The Airports Act requires the airport lessee companies prepare key planning documents such as master plans, major development plans and environmental management strategies. Airport lessee companies must provide a 60 business day public consultation period prior to lodgement of the plan/strategy with the Minister for Infrastructure, Transport, Local Government and Regional Development. This provides the community with the opportunity to scrutinise an airport’s planning intentions and proposed developments, including environmental and other impacts.

Airport lessee companies must also advise in writing State, Territory and Local Government planning authorities of their intention to submit a draft major development plan to the Infrastructure Minister. In deciding whether or not to approve the plan, the Infrastructure Minister must have regard to the outcome of the consultations undertaken by the airports lessee company.

On 10 April 2008, the Infrastructure Minister announced the Government's commitment to the development of a National Aviation Policy Statement.

The Government recognises that a key challenge at major airports is integrating planning for the development of airport sites with consideration of the impacts of development outside airports. The National Aviation Policy Statement is a more appropriate forum to consider the planning issues for Canberra International Airport, within a whole-of-Government framework.

The National Aviation Policy Green Paper will outline possible policy directions, settings and reforms for the Australian aviation industry and will be released for public comment in the latter half of 2008. A Government White Paper will be finalised in mid-2009 addressing each of the key short, medium and long term challenges identified.

Recommendation 12: That the National Capital Consultative Council make recommendations to the Commonwealth Government for a policy to govern future locations of Commonwealth Government agencies in Canberra.

The Government does not accept this recommendation.

The Government considers that the proposed National Capital Consultative Council, or the existing Minister’s Canberra Consultative Forum, should not have specific decision or recommendatory powers but should remain a consultative forum. However, the Government acknowledges the impact of the Commonwealth’s accommodation decisions on the ACT and the ACT’s town centres. The Government commits to working with the ACT Government to ensure that it is consulted on matters that are relevant to the holistic development of Canberra as the national capital.

Recommendation 13: That the Commonwealth and the ACT Government prepare a joint Sustainable Transport Plan which is recognised in both the National Capital Plan and the Territory Plan.

The Government notes this recommendation.

The Government acknowledges that there should be close consultation between the Commonwealth and ACT Governments in developing a sustainable approach to Canberra’s transport needs and that planning needs to take account of transport implications.

The Government does not agree that the transport issue should be considered solely within the planning framework. The Government will work with the ACT Government to canvass options for how this recommendation may be implemented.

Recommendation 14: That, as a possible interim measure to resolve duplication, the Commonwealth consider amendments to the Australian Capital Territory (Planning and Land Management) Act 1988 to permit the National Capital Authority and ACT Planning and Land Authority to negotiate a memorandum of understanding to delegate the planning jurisdiction for Territory Land which has designated status under the National Capital Plan from the NCA to ACTPLA. Such delegation would need to be accompanied by the necessary resources to fulfil these functions.

The Government does not accept this recommendation.

The multi-layered framework for planning and land management in the ACT creates a significant amount of confusion for stakeholders wishing to develop, maintain or enhance areas of the national capital.

The Government does not consider that a Memorandum of Understanding, permitting the ACT Planning and Land Authority to be a delegate under the Act, would achieve a reduction in the complexities associated with planning and land management responsibilities.

However, the Government is seeking to reduce duplication in responsibilities between the Commonwealth and ACT planning authorities. The Government will establish an inter-governmental committee comprised of representatives of Commonwealth departments, the ACT Government and other stakeholders.

The inter-governmental committee will determine options for how best to simplify the planning and land management responsibilities that are divided amongst several stakeholders in the ACT. The inter-governmental committee will report to the Government with options for implementation as soon as practicable.

Recommendation 15:That, in the interests of removing unnecessary complexity and red tape:

  • ‘Special Requirements’ be removed from the National Capital Plan;
  • All areas of National Land previously subject to Special Requirements be converted to Designated Areas; and
  • Any areas of Territory Land previously subject to ‘Special Requirements’ where the Commonwealth has a significant and enduring planning interest be converted to Designated Areas until a broader review of the National Capital Plan and Territory Plan is undertaken to assess whether such areas should be considered for future gazettal as National Land.

The Government accepts this recommendation in principle.

The Government will consider how best to implement this recommendation through the options prepared by the inter-governmental committee for simplification of planning and land management responsibilities in the ACT.

Recommendation 16: The strategic goal of ecologically sustainable development should be embedded as a major principle in the Australian Capital Territory (Planning and Land Management) Act 1988.

The Government accepts this recommendation in principle.

The Government considers that the United Nations Environmental Program Melbourne Principles for Sustainable Cities provide a comprehensive and integrated understanding of sustainable development principles for cities which should inform any changes to the simplification of the planning system in ACT. The Melbourne Principles are accessible at: http://www.cidb.org.za/Documents/KnowledgeCentre/melbourne_principles.pdf

The Government is committed to encouraging ecologically sustainable development. The Government will consider the best ways to encourage ecologically sustainable development in Canberra through the options prepared by the inter-governmental committee for simplifying the planning and land management responsibilities in the ACT and the review of the Commonwealth’s national capital responsibilities.

Recommendation 17: That the Australian Capital Territory (Planning and Land Management) Act 1988 be amended to enshrine the policies and principles of national significance as described in the proposed National Capital Land Use Plan in a schedule of the Act, and that the proposed Implementation Strategy be included as a disallowable instrument. The Act should also be amended to specify a requirement for the National Capital Land Use Plan and Implementation Strategy to be reviewed every three to five years.

The Government accepts this recommendation in principle.

The Government acknowledges that the meaning of national significance in the Plan should be clarified and established within the legislation establishing the ACT’s planning system.

The Government will consider how best to implement this recommendation through the options prepared by the inter-governmental committee for simplification of planning and land management responsibilities.

Recommendation 18: That the National Capital Authority and ACT Planning and Land Authority form a joint working group to achieve a single integrated document which:

  • Comprises the statutory plans, and agrees on clear geographic boundaries between the two plans based on the committee’s objective that, where possible, land administration be aligned with planning jurisdiction;
  • includes harmonised language, definitions and structure;
  • provides guidelines for interpretation of the two plans;
  • provides advice to the Commonwealth Government on enshrining the policies and principles relating to national significance across the Australian Capital Territory in the form of the National Capital Land Use Plan in the Australian Capital Territory (Planning and Land Management) Act 1988; and
  • provides advice to the Commonwealth and ACT Governments on the key elements of the Implementation Strategy.

The Government accepts this recommendation in principle.

The Government intends to simplify complexities and ambiguities, particularly relating to definitions, used in both the National Capital Plan and the Territory Plan. The Government recognises that the development of a single integrated framework and the simplification of terms and guidelines has positive benefits for individuals and businesses seeking to develop areas of land in the ACT.

The Government will work closely with the ACT Government to establish the best ways to implement this recommendation. This will be achieved through the options prepared by the inter-governmental committee for simplification of planning and land management responsibilities.

Recommendation 19: That the National Capital Authority be resourced to participate in the working parties and reviews as required.

The Government notes this recommendation.

The Government will work with the Authority to ensure its full participation and engagement in the inter-governmental review of planning and land management responsibilities in the ACT.

Recommendation 20: That any draft amendment(s) to the National Capital Plan proposing uplift of Designated Areas and a formal geographic re-alignment of planning jurisdiction be referred to the Joint Standing Committee on the National Capital and External Territories for inquiry.

The Government accepts this recommendation in principle.

The Government agrees that significant changes to the planning system and the Plan should be subject to the scrutiny of the Joint Standing Committee. However, the framework for the inter-governmental committee establishing options for simplification of the planning system in the ACT is yet to be determined. The Government does not wish to pre-empt any decision it may take about the future use of Designated Areas and/or the geographic realignment of planning and land management responsibilities in the ACT.

The Government will consider how best to implement this recommendation in the context of aligning and streamlining planning and land management responsibilities in the ACT.

Recommendation 21: That, in the interest of aligning the National Capital Authority’s planning system with the ACT’s, the Australian Capital Territory (Planning and Land Management) Act 1988 be amended to include a provision for decisions on development applications made under the Act to be subject to review through the Commonwealth Administrative Appeals Tribunal.

The Government notes this recommendation.

The Government is committed to balancing the concerns of ACT residents about planning and development decisions with protecting the Commonwealth’s interests in the development of the national capital. The Government will consider this recommendation through the options prepared by the inter-governmental committee for simplification of planning and land management responsibilities in the ACT.

Recommendation 22: That the Commonwealth provide resources to the National Capital Authority to continue the development of a cost effective three-dimensional integrated plan in digital format which is available online with the purpose of gaining efficiencies in planning and enhancing consultation.

The Government does not accept this recommendation.

The Government does not consider that the development of a digital format plan for the ACT is a priority when considered against the recommendations already proposed by the Joint Standing Committee. The Government further considers that the Authority should review the need for a digital plan against proposed changes to the planning framework and the available technology.

It will be open to the Authority, should it consider it appropriate, to seek funding for such a project within the normal Government fiscal and resource allocation processes.

Other Actions

In addition to implementing the Joint Standing Committee’s recommendations, the Government has also decided to enhance the available powers of the responsible Minister.

The Government considers it appropriate for the responsible Minister, on behalf of the Commonwealth, to intervene directly in a matter that is in the national interest. The determinative power will be a reserve power, of last resort, accompanied by safeguards that require the responsible Minister to make a direction in writing and to table the direction and the reasons for the making of the direction before the Parliament.

The Act provides for the Authority to prepare and administer the Plan and to suggest amendments to the responsible Minister for his or her approval. The Minister may approve the proposed amendments or direct the Authority to consider a particular matter or make suggestions for the Authority’s consideration. However, there is no provision in the Act that allows for the breaking of a “deadlock” situation, should the Authority decline to change a proposed amendment that the Minister is not prepared to approve.

The Government will amend the Act to allow the responsible Minister to issue binding policy directions to the Authority about its operating model, including consultation and best practice business planning.

The Auditor-General recently criticised the Authority’s management of diplomatic leases. The Government has already formed an inter-departmental committee in response to a recommendation from the Auditor-General relating to the development of a whole-of-Government approach to administering diplomatic leases.


GOVERNMENT RESPONSES TO PARLIAMENTARY COMMITTEE REPORTS RESPONSE TO THE REPORT TABLED BY THE PRESIDENT OF THE SENATE ON 26 JUNE 2008

Circulated by the Leader of the Government in the Senate

Senator the Hon Chris Evans

December 2008

FOREWORD

On 26 June 2008 the President of the Senate tabled a report of outstanding government responses to Parliamentary Committee reports, listing parliamentary committee reports to which government responses were outstanding.

This document presents the government’s response to the President’s report of 26 June 2008.

A CERTAIN MARITIME INCIDENT (Select)

Report on a Certain Maritime Incident

A government response is being considered.

ADMINISTRATION OF INDIGENOUS AFFAIRS (Select)

After ATSIC - Life in the mainstream?

This report was addressed by the passage of the previous government’s legislation in 2005 which amended the Aboriginal and Torres Strait Islander Commission Act 1989. No further action required.

AUSTRALIAN COMMISSION FOR LAW ENFORCEMENT INTEGRITY (Joint, Statutory)

Examination of the annual report of the Integrity Commissioner 2006-07

Response not required.

AUSTRALIAN CRIME COMMISSION (Joint, Statutory)

Review of the Australian Crime Commission Act 2002

The response is in the final stages of preparation.

Examination of the Australian Crime Commission Annual Report 2004-2005

The response is in the final stages of preparation.

Inquiry into the manufacture, importation and use of amphetamines and other synthetic drugs (AOSD)

The response is in the final stages of preparation.

Inquiry into future impact of serious and organised crime in Australian Society

The response is in the final stages of preparation.

Examination of the Australian Crime Commission Annual Report 2006-07

The response is in the final stages of preparation.

COMMUNITY AFFAIRS LEGISLATION

Tobacco advertising prohibition

Given the bills which are the subject of this report are no longer on the Parliamentary Legislative Schedule there is no longer a context in which to provide a response.

Therapeutic Goods Amendment (Repeal of Ministerial responsibility for approval of RU486) Bill 2005

The issues in this report were dealt with during the debate on this bill in the Parliament, and no further response is required.

COMMUNITY AFFAIRS REFERENCES

Workplace exposure to toxic dust

Government response tabled in the Senate 25 September 2008.

Beyond petrol sniffing: renewing hope for Indigenous communities

Response overtaken by 2008 Senate Inquiry into Petrol Sniffing And Substance Abuse in Central Australia. The inquiry includes a response to the 2006 Report.

COMMUNITY AFFAIRS STANDING

Funding and operation of the Commonwealth State/Territory Disability Agreement

The government response is being considered and will be tabled in due course.

National Health Amendment (Pharmaceutical Benefits Scheme) Bill 2007 [Provisions]

The issues in this report were dealt with during the debate on this bill in the Parliament, and no further response is required.

Health Insurance Amendment (Medicare Dental Services) Bill 2007 [Provisions]

The issues in this report were dealt with during the debate on this bill in the Parliament, and no further response is required.

Highway to health: better access for rural, regional and remote patients

The government response is being considered and will be tabled in due course.

A decent quality of life—Inquiry into the cost of living pressures on older Australians

Presented to the President on the 5 September 2008.

Alcohol Toll Reduction Bill 2007 [2008]

Given the bill which is the subject of this report is no longer on the Parliamentary Legislative Schedule there is no longer a context in which to provide a response.

Mental health services in Australia - Interim report

Response not required.

Ready-to-drink alcohol beverages

While no response is required, the report will be taken into account when the relevant legislation is considered by the Parliament.

A matter relating to the Positron Emission Tomography (PET) Review 2000

Tabled in the Senate 13 November 2008.

CORPORATIONS AND FINANCIAL SERVICES (Joint, Statutory)

Report on the regulations and ASIC policy statements made under the Financial Services Reform Act 2001

A number of recommendations outlined in the report have been addressed. The government is considering the outstanding recommendations and will take appropriate action.

Inquiry into the review of the Managed Investments Act 1998

The government is considering the report and will prepare a response in due course.

Inquiry into Regulation 7.1.29 in Corporations Amendment Regulations 2003 (No.3), Statutory Rules 2003 No.85

The government is considering the report and will prepare a response in due course.

Money matters in the bush-Inquiry into the level of banking & financial services in rural, regional & remote areas of Australia

The response is being developed. A number of matters considered by the report have undergone substantial change since the report was tabled in 2004. This has required consideration of the recommendations against the changed industry and policy environment.

Report on the ATM fee structure

The response is being developed. A number of matters considered by the report have undergone substantial change since the report was tabled in 2004. This has required consideration of the recommendations against the changed industry and policy environment. Report is a subsidiary report to Money Matters in the Bush.

Corporations amendment regulations 2003

The dollar disclosure requirements in the Corporations Amendment Regulations (No. 10) were implemented in August 2007. The government is considering the outstanding recommendations and will take appropriate action.

Corporations Amendment Regulations 7.1.29A, 7.1.35A and 7.1.40(h)

The government is considering the report and will prepare a response in due course.

Property investment advice - Safe as houses?

The government has consulted on this matter in a Green Paper dated June 2008 and is considering the submissions provided by stakeholders. In addition, the government has secured a COAG agreement to include investment property loans in a new federal Universal Consumer Code of Conduct.

Statutory oversight of the Australian Securities and Investments Commission, December 2005

The Australian Securities and Investment Commission is an independent statutory body. Recommendations relating to ASICs operational arrangements are a matter for ASIC. Recommendations relating to government policy will be considered as part of normal government business.

Corporate responsibility: Managing risk and creating value

The government is considering the recommendations in this report and will prepare a response in due course. On 19 May 2008, the Prime Minister announced that the Australian Government would provide $2 million over three years to the St James Ethics Centre to develop the capacity of Australian businesses to identify and adopt more responsible business practices.

Statutory oversight of the Australian Securities and Investments Commission, August 2006

The Australian Securities and Investment Commission is an independent statutory body. Recommendations relating to ASICs operational arrangements are a matter for ASIC. Recommendations relating to Government policy will be considered as part of normal government business. The Government notes that subjects of recommendation three (of three) were dealt with in the context of Parliamentary debate on the Corporations Amendment (Simpler Regulatory System) Bill 2007 in both the House of Representatives and the Senate; and in the Treasury discussion paper, Review of Sanctions in Corporate Law, released in March 2007.

Corporations Amendment (Takeovers) Bill 2006 [Exposure Draft]

The recommendations were dealt with in the context of parliamentary debate on the bill in both the House of Representatives and the Senate. No further response is required.

Statutory oversight of the Australian Securities and Investments Commission, March 2007

The Australian Securities and Investment Commission is an independent statutory body. Recommendations relating to ASICs operational arrangements are a matter for ASIC. Recommendations relating to government policy will be considered as part of normal government business. The government has consulted on this matter in a Green Paper dated June 2008 and is considering the submissions provided by stakeholders.

Corporations Amendment (Insolvency) Bill 2007 [Exposure Draft]; Corporations and Australian Securities and Investments Commission Amendment Regulations 2007 [Exposure Draft]

Response to the report was included in the Second Reading Speech to the Corporations Amendment (Insolvency) Bill 2007. No further response is required.

Corporations Legislation Amendment (Simpler Regulatory System) Bill 2007 and related bills

The recommendations were dealt with in the context of parliamentary debate on the bill in both the House of Representatives and the Senate. No further response is required.

Structure and operation of the superannuation industry

The government is considering its response and will prepare a response in due course.

Statutory oversight of the Australian Securities and Investments Commission, August 2007

The Australian Securities and Investment Commission is an independent statutory body. Recommendations relating to ASICs operational arrangements are a matter for ASIC. Recommendations relating to government policy will be considered as part of normal government business.

Better shareholders - Better company: Shareholder engagement and participation in Australia

The government is considering the report and will prepare a response in due course.

CORPORATIONS AND SECURITIES (Joint, Statutory)

Report on aspects of the regulation of proprietary companies

The government is considering the report and will prepare a response in due course.

ECONOMICS LEGISLATION

Report on annual reports (No. 1 of 2006)

The government response is being prepared and will be tabled in due course.

ECONOMICS REFERENCES

Consenting adults deficits and household debt - Link between Australia’s current account deficit, the demand for imported goods and household debt

The government response is being considered and will be tabled in due course.

ECONOMIC STANDING

Private equity investment in Australia

The report has no recommendations. No response required.

Reserve Bank Amendment (Enhanced Independence) Bill 2008 [Provisions]

The government response is being finalised and will be tabled in due course.

Australia’s space science and industry sector - Interim report

Response not required.

Tax Laws Amendment (Budget Measures) Bill 2008

The government does not propose to respond, as committee’s recommendation were overtaken by the release of MYEFO on 5 Nov 2008.

ELECTORAL MATTERS (Joint, Standing)

Civics and electoral education

Interim government response presented out of sitting in the Senate 30 October 2008 and tabled in the House of Representatives 13 November 2008.

Review of certain aspects of the administration of the Australian Electoral Commission

The government response was tabled in the Senate and the House of Representatives on 18 September 2008.

Advisory report on Schedule 1 of the Tax Laws Amendment (2008 Measures No. 1) Bill 2008

Response not required.

EMPLOYMENT, WORKPLACE RELATIONS AND EDUCATION REFERENCES

Bridging the skills divide

The government response is being considered and will be tabled in due course.

Indigenous education funding - Interim report and Final report

A government response is being considered and will be tabled in due course.

Student income support

On 13 March 2008, the Minister for Education, the Hon Julia Gillard MP announced a major Review of Australian Higher Education to examine the future directions of the higher education sector, including consideration of widening access to higher education and the role of student support programs in promoting social inclusion and individual opportunity. The Review will report to the government by the end of 2008. In the context of the change of government and given the timing of the Review, the Senate Inquiry report has been overtaken by Higher Education Review. For this reason, the government does not propose to respond to the Senate Inquiry Report.

EMPLOYMENT, WORKPLACE RELATIONS AND EDUCATION STANDING

Workforce challenges in the transport industry

The government response is being considered and will be tabled in due course.

Quality of school education

A government response is being considered and will be tabled in due course.

ENVIRONMENT, COMMUNICATIONS AND THE ARTS STANDING

The effectiveness of the broadcasting codes of practice

The government response is being considered and will be tabled in due course.

ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS REFERENCES

Regulating the Range, Jabiluka, Beverley and Honeymoon uranium mines

The report was overtaken by the previous government’s response to the House of Representatives Standing Committee on Industry and Resources Australia’s uranium: Greenhouse friendly fuel for an energy hungry world, tabled on 29 March 2007. Therefore, no response is required.

Lurching forward, looking back: Budgetary and environmental implications of the Government’s Energy White Paper

The report has been overtaken by events and the government will not be tabling a response.

The performance of the Australian telecommunications regulatory regime

The government does not propose to respond to the report as it has been overtaken by events.

Living with a salinity - a report on progress: The extent and economic impact of salinity in Australia

The government response is currently being updated to reflect the new NRM Program, Caring for our Country, input from other areas of the Department of Agriculture, Fisheries and Forestry and other Departments. The response is expected to be tabled in the first quarter of 2009.

About time! Women in sport and recreation in Australia

A government response to the report is being prepared and will be tabled in due course.

ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS STANDING

Conserving Australia - Australia’s national parks, conservation reserves and marine protected areas

The government’s response is being considered and will be tabled in due course.

Indigenous art - Securing the future - Australia’s Indigenous visual arts and craft sector

The government response was tabled on 8 August 2008.

Sexualisation of children in the contemporary media

The government response is being considered and will be tabled in due course.

FINANCE AND PUBLIC ADMINISTRATION REFERENCES

Staff employed under the Members of Parliament (Staff) Act 1984

A government response is being considered.

Matter relating to the Gallipoli Peninsula

The government response is being considered and will be tabled in due course.

Government advertising and accountability

A government response is being considered.

FINANCE AND PUBLIC ADMINISTRATION STANDING

Department and agency contracts - Second report on the operation of the Senate order for the production of lists of departmental and agency contracts (2003-06)

Government response tabled in the Senate 26 August 2008.

Transparency and accountability of Commonwealth public funding and expenditure

Interim response provided to the committee on 16 April 2008. The final response is being prepared and will be tabled in due course.

Commonwealth Electoral Amendment (Democratic Plebiscites) Bill 2007 [Provisions] - Interim report

The recommendations were dealt with in the context of Parliamentary debate on the bill in the House of Representatives and the Senate. No response required.

Annual reports (No.2 of 2007)

The government response is being prepared and will be tabled in due course.

Annual reports (No. 1 of 2008)

The government response is being prepared and will be tabled in due course.

Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2008 Budget and Other Measures) Bill 2008

The government response is being considered and will be tabled in due course.

FOREIGN AFFAIRS, DEFENCE AND TRADE (Joint, Standing)

Inquiry into Australia’s trade with Mexico and the region

The government response was tabled in the Senate and the House of Representatives

18 September 2008.

Australia’s aid program in the Pacific

The government response was tabled in the Senate and the House of Representatives 27 November 2008.

Review of the Defence annual report 2005-2006

The government response was tabled in the Senate and the House of Representatives

13 November 2008.

FOREIGN AFFAIRS, DEFENCE AND TRADE LEGISLATION

Export Finance and Insurance Corporation Amendment Bill 2006

The recommendations were dealt with in the context of parliamentary debate on the bill in both the House of Representatives and the Senate. No further response is required.

FOREIGN AFFAIRS, DEFENCE AND TRADE REFERENCES

The removal, search for and discovery of Ms Vivian Solon - Final report

A government response was tabled in the Senate 27 November 2008.

FOREIGN AFFAIRS, DEFENCE AND TRADE STANDING

Blue water ships: consolidating past achievements

The recommendations of the Senate Standing Committee from Foreign Affairs, Defence and Trade Inquiry into Naval Shipbuilding will be addressed through the articulation of Strategic Industry Capabilities in the Defence White Paper.

Reforms to Australia’s military justice systems - second progress report

No government response required as there were no recommendations.

Australia’s public diplomacy: building our image

The government is considering the response, which will be tabled when approved.

Reforms to Australia’s military justice system: Third progress report

No government response required as there were no recommendations.

HOUSING AFFORDABILITY IN AUSTRALIA (Senate Select)

A good house is hard to find: Housing affordability in Australia

The government response is being considered and will be tabled in due course.

INTELLIGENCE AND SECURITY (Joint, Statutory)

Review of security and counter terrorism legislation

The response is being considered and will be tabled in due course.

Inquiry into the proscription of terrorist organisation under the Australian Criminal Code

The response is being considered and will be tabled in due course.

Review of the re-listing of the Kurdistan Workers’ Party (PKK)

The response is being considered and will be tabled in due course.

LEGAL AND CONSTITUTIONAL AFFAIRS STANDING

Unfinished business: Indigenous stolen wages

The government response is being considered and will be tabled in due course.

Crimes Legislation Amendment (Child Sex Tourism Offences and Relation Measures) Bill 2007 [Provisions]

Dealt with in the context of parliamentary debate on the bill; no further response required.

Telecommunications (Interception and Access) Amendment Bill 2008

Dealt with in the context of parliamentary debate on the bill; no further response required.

Stolen Generation Compensation Bill 2008

The government response is being considered and will be tabled in due course.

LEGAL AND CONSTITUTIONAL REFERENCES

Reconciliation: Off track

The government response is being considered and will be tabled in due course.

The road to a republic

A government response is being considered.

MEDICARE (Senate, Select)

Medicare - healthcare or welfare? and Second report: Medicare Plus: the future for Medicare?

These reports have become out of date with the passage of time and the government does not propose to respond.

MENTAL HEALTH (Select)

A national approach to mental health - from crisis to community -Final report

This report has been overtaken by further national reforms in this area and the recently released final report of the Senate Community Affairs Committee Inquiry into mental health services in Australia: Towards Recovery: mental health services in Australia, tabled on 25 September 2008 to which the government response is being considered. Hence no further action is being taken on A national approach to mental health - from crisis to community.

MIGRATION (Joint, Standing)

Negotiating the maze - Review of arrangements for overseas skills recognition, upgrading and licensing

The government response is being revised for further consideration.

Temporary visas…permanent benefits: Ensuring the effectiveness, fairness and integrity of the temporary business visa program

The government response will be finalised following the review of the Subclass 457 visa program.

MINISTERIAL DISCRETION IN MIGRATION MATTERS (Senate, Select)

Report

The government response is being revised to reflect the government’s recent changes and reform agenda in respect to ministerial intervention arrangements.

PUBLIC ACCOUNTS AND AUDIT (Joint, Statutory)

Developments in aviation security since the Committee’s June 2004 Report 400: Review of aviation security in Australia - An interim report (Report No. 406)

Sent to Joint Committee of Public Accounts and Audit for tabling on 23 October 2008.

Review of Auditor-General’s reports tabled between 18 January and 18 April 2005 (Report No. 407)

The government response is being prepared and will be tabled in due course. Finance’s response to recommendations 2 and 13 was provided 3 September 2007.

Developments in aviation security since the Committee’s June 2004 Report 400: Review of aviation security in Australia (Report No. 409)

Sent to Joint Committee of Public Accounts and Audit for tabling on 23 October 2008.

Tax administration (Report No. 410)

Government response was tabled in the Senate and House of Representatives 13 November 2008.

PUBLICATIONS (Joint, Standing)

Printing standards for documents presented to Parliament

The government response is being considered and will be tabled in due course.

RURAL AND REGIONAL AFFAIRS AND TRANSPORT LEGISLATION

An appropriate level of protection? The importation of salmon products: A case study of the administration of Australian quarantine and the impact of international trade arrangements

Government response was tabled in the Senate 25 September 2008.

Biosecurity Australia’s import risk analysis for pig meat

Government response was tabled in the Senate 25 September 2008.

Administration of Biosecurity Australia - Revised draft import risk analysis for bananas from the Philippines

Government response was tabled in the Senate 25 September 2008.

Administration of Biosecurity Australia - Revised draft import risk analysis for apples from New Zealand

Government response was tabled in the Senate 25 September 2008.

The administration by the Department of the Agriculture, Fisheries and Forestry of the citrus canker outbreak

Government response was tabled in the Senate 25 September 2008.

RURAL AND REGIONAL AFFAIRS AND TRANSPORT REFERENCES

Iraqi wheat debt - repayments for wheat growers

The government’s response is being reviewed in consultation with relevant agencies and will be tabled once approved.

RURAL AND REGIONAL AFFAIRS AND TRANSPORT STANDING

Water policy initiatives - Final report

The report has been overtaken by events and the government will not be tabling a response.

Australia’s future oil supply and alternative transport fuels - Final report

The response has been prepared and will be tabled in due course.

Options for addition water supplies for South East Queensland

Government response was tabled in the Senate 4 December 2008.

TREATIES (Joint Standing)

Treaties tabled on 27 March and 9 May 2007 (86th report)

Response not required.

Treaties tabled on 12 March 2008 (91 st report)

The government response is being considered and will be tabled in due course.


Parliamentary Joint Committee on Intelligence and Security

Review of Security and Counter-Terrorism Legislation

Tabled 4 December 2006

(Note: This Review took into account recommendations made by the Security Legislation Review Committee (Sheller Committee)

Government response to recommendations

(Note: Any legislative amendments to Part 5.3 of the Criminal Code require the approval of the majority of the States and Territories in accordance with the Inter-Governmental Agreement on the Counter-Terrorism Laws.)

Recommendation

Response

Rationale / Community education and publicity

1. The Committee recommends that the Government support/sponsor a study into the causes of violent radicalisation in Australia to inform Australia’s counter terrorism strategy.

The Government supports this recommendation.

The Government recognises that communities have an important role to play in protecting our national security and is committed to engaging the community on a range of national security matters. Considerable research has already been undertaken by Australian and overseas universities and think tanks on the causes of violent radicalisation. The Government is actively considering how best to take this forward in the Australian context. Several jurisdictions have already undertaken relevant studies and begun specifically targeted programs.

In addition, as an ongoing task, the Attorney-General’s Department (the Department) has undertaken considerable work to educate communities and create public awareness of the counter-terrorism laws. This has included the distribution of pamphlets in eight different languages spoken in Australia and has involved Departmental officers speaking at public forums. Future activities could involve extending the range of languages in which information pamphlets are produced (depending on community needs), preparing supplementary explanatory material where a significant change to the counter-terrorism laws is introduced and providing presentations to a range of community groups and stakeholders about impending key amendments to counter-terrorism legislation. In order to enhance the effectiveness of existing education and public awareness programs, attention will be directed towards extending counter-terrorism public information arrangements.

Further reviews

2. The Committee recommends that:

(a) the Government appoint an independent person of high standing as an Independent

Reviewer of terrorism law in Australia.

(b) the Independent Reviewer be free to set his or her own priorities and have access to all necessary information;

(c) the Independent Reviewer report annually to Parliament

(d) the Intelligence Services Act 2001 be amended to require the PJCIS to examine the reports of the Independent Review tabled in the Parliament.

The Government supports the development of a framework for the regular reviewing of the counter- terrorism legislation through the establishment of a new statutory office in the Prime Minister’s Portfolio, to be known as the National Security Legislation

Monitor, reporting to Parliament.

Ongoing review of the counter-terrorism legislation is consistent with the Government’s policy imperative to ensure the laws operate in an effective and accountable manner

The National Security Legislation Monitor will bring a more consolidated approach to ongoing review of the laws. This will avoid the past practice of ad hoc reviews on particular aspects which has resulted in a less holistic approach and can be resource-intensive for both the reviewing body and the relevant agencies involved in the review.

It is only after there has been experience with the legislation that its practical operation and effectiveness, and implications for national security and human rights can be fully assessed. A formal mechanism for regularly examining the use of the laws and drawing out lessons from their practical operation would ensure ongoing improvement of those laws.

Effectiveness and Implications:

Impact on Arab and Muslim

Australians

3. The committee recommends that Australian police forces review their media policies to ensure that official statements do not prejudice the right to fair trial and are sensitive to the wider implications for the community

The Government supports this recommendation.

See discussion for recommendation 1.

4. The Committee recommends

that AGD increase its efforts to ensure comprehensive information about the terrorism law regime is available to the public in appropriate community languages.

The Government supports this recommendation.

See discussion for recommendations 1 and 3.

5. The Committee recommends that Australia’s counter terrorism strategy encompass:

(a) a commitment to the rights of Muslims to live free from harassment and enjoy the same rights extended to all religious groups in Australia;

(b) wide dissemination of information about mechanisms for complaint or redress in relation to law enforcement, intelligence agencies and the media; and

(c) a statement on the importance of informed and balanced reporting to promote social cohesion.

The Government supports this recommendation. See discussion for recommendation 1.

Treason

6. The Committee recommends that:

(a) the offence of treason be restructured so that conduct constituting treason apply only to persons who owe allegiance to Australia or who have voluntarily placed themselves under Australia’s protection;

(b) the conduct of others, which falls within the scope of paragraphs 80.1(1)(a)(b)(c), should be dealt with separately;

(c) the offence of assisting the enemy under paragraph 80.1(e) and (f) be clarified to cover ‘material assistance’;

(d) paragraph 80.1(f) be amended to require knowledge of the existence of armed hostilities.

The Government supports in part recommendation 6. The Government supports sub-recommendation (a) in relation to providing an allegiance or duty requirement within the treason offence. Historically, it was always intended that the treason offence contain an allegiance element. Therefore, it is important that the provision expressly state this so it is clear that the presence of a betrayal of an allegiance or duty to the state is integral to the operation of the treason offence.

The Government supports sub-recommendation (c).

The offence already requires that assistance provided to the enemy be real or concrete and not mere rhetoric or expressions of dissent. Clarifying the conduct standard as one of ‘material assistance’ is reflective of how the offence is intended to operate. The ALRC made similar recommendations in its Report entitled Fighting Words: A Review of Sedition Laws in Australia (ALRC 104) (see recommendation 11-2)

The Government does not support sub-recommendations 6(b) and 6(d). In recommendation 6(b), the PJCIS recommends that the types of treasonable conduct set out in subsections 80.1(a)-(c) be separated. Implementation of the recommendation would not serve to improve the operation of the offence.

Recommendation 6(d) proposes amending the fault elements of the treason offence. This is not supported as it would confine the scope of the offence to those circumstances where the defendant knew about the existence of armed hostilities. The offence in section 80.1(f) currently requires that a person intentionally engage in conduct which is intended to assist an enemy (either country or organisation) which is engaged in armed hostilities against the Australian Defence Force. In proving that a person intended to assist the enemy, the prosecution would be required to prove that the defendant was aware that the ADF was engaged in armed hostilities against the enemy and provided assistance regardless. The defence of ‘good faith’ applies to the treason offence.

Definition of Terrorist Act

7. The Committee recommends that the requirement that the person intends to advance a political, religious or ideological cause be retained as part of the definition of terrorism.

The Government supports recommendation 7 in relation to retaining the element ‘intention to advance a political, religious or ideological cause’ as part of the definition of terrorist act. The definition of terrorist act focuses on the motive associated with a terrorist act that distinguishes such violence from other non- terrorist acts.

Advocacy

8. The Committee recommends that the current exemption for advocacy, protest, dissent and industrial action be retained as part of the definition of terrorism.

The Government supports recommendation 8 in relation to retaining the current exemption for advocacy, protest, dissent and industrial action within the definition of terrorist act. The policy objective in introducing this qualification was to distinguish terrorism from acts of legitimate political protest or unlawful civil protest with no ‘terrorist act’ connection.

Psychological harm

9. The Committee recommends that psychological harm not be included in the definition of a terrorist act. Alternatively, that the Government consult with the States and Territories on this issue and give consideration to the question in light of other amendments to the definition.

The Government supports the alternative option in this recommendation to consult the States and Territories to give consideration to including psychological harm within the definition of terrorist act.

The general definition of harm in the Criminal Code includes harm to a person’s mental health, whether temporary or permanent. In order to ensure consistency within the Criminal Code, the notion of harm which applies to the definition of ‘terrorist act’ in section 100.1(2)(a) (being serious harm that is physical harm) could be expanded to include psychological harm. Psychological harm can be just as damaging as physical harm. Fear associated with the threat of terrorism or the implications associated with the commission of a terrorist act manifest beyond tangible physical harm.

Amendment to the definition would be consistent with the recommendations made by the Sheller Committee and the submissions made to the PJCIS by bodies such as the Law Institute of Victoria and the Gilbert & Tobin Centre of Public Law.

Threat of a terrorist act

10. The Committee recommends that ‘threat’ of terrorist act be removed from the definition of terrorism and be dealt with as a separate offence.

The Government supports in principle recommendation 10, and will consult the States and Territories on clarifying the application of ‘threat of action’ within the definition of terrorist act.

As the Sheller Review and PJCIS review both raised issues in relation to the concept of threat within the definition, a clarification to the definition would assist in making it clear that the threats of action relate to damage which is likely to be caused as a result of the terrorist threat as opposed to damage which is actually caused by a terrorist act.

International organisations

11. The Committee recommends that the definition of terrorism recognise that international organisations may be the target of terrorist violence.

The Government supports recommendation 11 to recognise that international organisations, such as the United Nations, may be the target of terrorist violence.

Law of armed conflict

12. The Committee recommends that to remove doubt the definition of terrorism be amended to include a provision or a note that expressly excludes conduct regulated by the law of armed conflict.

The Government does not support recommendation 12.

Acts of terrorism may still occur during armed conflict; therefore the unqualified exclusion of armed conflict will encourage misapplication of the principles of public international law. The express exclusion of conduct regulated by the law of armed conflict from the definition of terrorist act would neither add to nor detract from Australia’s international obligations and is unlikely to add clarity to the operation of relevant Criminal Code provisions.

Hoax offence

13. The Committee recommends that a separate hoax offence be adopted but that penalties reflect the less serious nature of a hoax as compared to a threat of terrorism.

The Government supports recommendation 13.

The Criminal Code currently contains offences for the commission of hoaxes that are made either via the post or a telecommunications network. However, if a terrorist-related hoax is committed without the use of the post or a telecommunications network, it will not be captured by the offence. Given the potential for a terrorist-related hoax to cause significant alarm to the community and to divert valuable law enforcement and emergency services, the creation of a terrorist-related hoax offence is warranted.

14. Advocacy as basis for listing terrorist organisation

(a) The Committee does not recommend the repeal of ‘advocacy’ as a basis for listing an organisation as a terrorist organisation but recommends that this issue be subject to further review.

(b) The Committee recommends that ‘risk’ be amended to ‘substantial risk.

The Government supports recommendation 14.

The advocacy criteria will be reviewed by the 2010

COAG review.

Recommendation 14(b) provides that section 102.1

(1A) (the definition of advocacy) be amended so as to require there to be a ‘substantial’ risk that a person be led by the statement/praise to engage in a terrorist act as opposed to a ‘risk’.

It has always been intended that the risk threshold associated with an organisation directly praising the doing of a terrorist act be real and apparent on the evidence presented and not fanciful or speculative.

Accordingly, the inclusion of the word ‘substantial’ would expressly confirm that the level of risk associated with advocacy is not mere risk but heightened risk. Such an amendment would also be consistent with the language of the Criminal Code in relation to the concept of risk, for example, substantial risk in the definition of recklessness.

Terrorist organisations

15. The Committee recommends that the Government consider:

(a) replacing the membership offence with an offence of participation in a terrorist organisation; and

(b) whether ‘participation’ should be expressly linked to the purpose of furthering the terrorist aims of the organisation.

The Government does not support this recommendation.

The concept of ‘participation’ is less formal than the concept of membership in an organisation and therefore has the propensity to introduce a level of ambiguity if included as an offence provision.

Training

16. The Committee recommends

that the training offence be redrafted to define more carefully the type of training targeted by the offence. Alternatively, that the offence be amended to require that the training could reasonably prepare the individual or the organisation to engage in, or assist with, a terrorist act.

The Government supports in part recommendation 16 in relation to clarifying that the offence does not capture legitimate activities (such as those provided by humanitarian aid organisations).

The purpose of the terrorist organisation offences is to ensure that terrorist organisations are disbanded. In order to achieve this, it is appropriate that providing training to, or receiving training from, such organisations is an offence without the training itself having to be connected to a terrorist act.

Terrorist financing

17. The Committee recommends that:

(a) it be a defence to the offence of receiving funds from a terrorist organisation that those funds were received solely for the purpose of the provision of representation in legal proceedings; and

(b) that the legal burden be reduced to an evidential burden.

The Government does not support recommendation

17.

The Government does not support recommendation 17(a) as section 102.6(3) already provides that if funds are received for the sole purpose of funding legal representation, then the transaction does not fall within the ambit of the offence with the defendant bearing a

legal burden of proof. This subsection effectively operates as a defence and as such recommendation 17(a) is already accommodated within the legislative framework.

Further, the Government does not support recommendation 17(b). This legal burden requires the defendant to prove on the balance of probabilities that the funds were received solely for the purposes of legal representation. It is preferable that the defendant be required to prove the issue on the balance of probabilities as opposed to merely pointing to evidence which suggests that a reasonable possibility exists (evidential burden) because the evidence concerned will be readily available to the defendant but not the prosecution.

Support to a terrorist organisation

18. The Committee recommends that the offence of providing support to a terrorist organisation be amended to ‘material support’ to remove ambiguity.

The Government supports recommendation 18.

Describing the type of support which will qualify for the purpose of the offence as ‘material support’ does not represent an elevation of the conduct standard because the level of support which must be proven needs to be real and concrete. This amendment will serve to clarify that the level of support required goes beyond ‘mere support’.

Association offence

19. The Committee recommends that the offence of ‘associating with a terrorist organisation’ be re-examined taking into account the recommendations of the Sheller Committee.

The Government supports recommendation 19. The Government will refer the matter for examination by the new National Security Legislation Monitor once appointed.

Strict liability

20. The Committee recommends that strict liability provisions applied to serious criminal offences that attract the penalty of imprisonment be reduced to an evidential burden.

The Government notes recommendation 20. The Government will refer the matter for examination by the new National Security Legislation Monitor once appointed.

Financing of terrorism

21. The Committee recommends that:

(a) section 103.1 be amended by inserting ‘intentionally’ after ‘the person’ in paragraph (a) and removing the note;

(b) that recklessness be replaced with knowledge in paragraph (b).

(c) the Committee recommends that paragraph 103.2(1)(b) be redrafted to make clear that the intended recipient of the funds be a terrorist.

The Government does not support recommendation

21. The note within the offence makes it clear that the fault element in paragraph 103.1(a) of the terrorist financing offence is intention by virtue of the application of section 5.6 of the Criminal Code.

Further, elevating the standard of proof from recklessness to knowledge would be contrary to the standard Criminal Code fault element for a circumstance which is recklessness.

The PJCIS suggests that further clarity can be achieved by amending s 103.2(1)(b) to specify that the intended recipient of the funds is a ‘terrorist’. The inclusion of this term has no definitional point of reference as the term ‘terrorist’ is not used in the Criminal Code. Also, the use of the term ‘terrorist’ instead of ‘person’ in the offence would pre-emptively suggest that it has already been established that the person the subject of the offence is a person who has engaged in a terrorist act.

Charter of the United Nations Act

22. The Committee recommends that:

(a) external merit review of a decision to list a person, entity or asset under section 15 of the COUNA should be made available in the Administrative Appeals Tribunal;

(b) section 15 and regulation 6 be amended so that the Minister must be satisfied on reasonable grounds that the person, entity, asset or class of assets fall within the scope of UNSCR 1373;

(c) COUNA should be amended to provide that a person or entity listed by regulation is entitled to seek review as a step in the process of review by the Sanctions Committee.

The Government supports in part recommendation

22.

(a) The Government does not support recommendation 22(a) but supports amendment of COUNA to incorporate a periodic review mechanism. As noted by the PJCIS, judicial review of decisions by the Minister for Foreign Affairs to list a person, entity or asset under section 15 of the COUNA is available under the ADJR Act. There is also a mechanism in COUNA under which a person or entity listed by the Minister for Foreign Affairs under section 15 may apply to the Minister to have the listing revoked (see section 17 of the COUNA).

(b) The Government supports recommendation 22(b) but notes that the legislation has been amended since the publication of the PJCIS report and section references in that report are now outdated. Regulation 6 referred to in the first PJCIS report no longer exists.

Pursuant to changes introduced in the International Trade Integrity Act 2008, the relevant regulation is now regulation 20. The Government agrees that section 15 and regulation 20 should be amended to replace the word ‘satisfied’ with ‘satisfied on reasonable grounds’. This would bring Australia in line with international best practice which is reflected in the guidelines produced by the UN Counter-Terrorism Directorate and the Financial Action Task Force.

(c) The Government does not support recommendation 22(c).

All designations by the UN Al-Qaida and Taliban Sanctions Committee established pursuant to UNSCR 1267 are given effect through incorporation by reference in regulations made under section 6 of the COUNA. This is in accordance with Australia’s international obligations and Australia has no

discretion in relation to individuals and entities listed or de-listed by this Committee. It is therefore inappropriate to provide for a review mechanism under COUNA.

Customs

23. That the Customs Act be amended to specify that access to passenger information for the purpose of another law of the Commonwealth is limited to the investigation of serious crimes proscribed by regulation.

The Government does not support recommendation

23.

Adopting this recommendation would limit Customs’ ability to access passenger information for legitimate border security purposes other than the investigation of serious crimes.

Customs

24. The Committee recommends that:

(a) the Customs Act be amended to specify that retention of passenger information be permitted for a limited time in order to conduct analysis;

(b) that the Minister for Customs report to the Parliament on the status of negotiations with European States in relation to passenger information.

The Government supports in principle recommendation 24.

(a) The Customs Act currently allows the Australian Customs Service to retain data which is operationally necessary to perform its border security function. However, the Government agrees that it is important

that strict privacy principles are followed when data is retained by law enforcement and security agencies. The Privacy Commissioner conducts regular audits of Customs’ records to ensure privacy principles of storage, handling and retention of data are strictly followed.

(b) The European Union —Australia Passenger Name Record Agreement was signed on 30 June 2008. The Agreement has been presented to Parliament through the Joint Standing Committee on Treaties.

Customs

25. The Committee recommends that the Privacy Commissioner retain an ongoing oversight role in relation to passenger name records, which includes biannual monitoring of the Passenger Analysis Unit.

The Government supports recommendation 25 in relation to the oversight role of the Privacy Commissioner.

The Privacy Commissioner and Customs have entered into an agreement to establish a rolling PAU privacy compliance audit program. Under the agreement, the Office of the Privacy Commissioner will perform a privacy audit of the Passenger Analysis Unit biennially

26. The Committee recommends that:

(a) the subject of a seizure warrant involving entry to premises should be provided with a statement of rights and obligations;

(b) that Customs bears the onus of proving the basis of the seizure.

The Government will give further consideration to

recommendation 26 to ensure there are appropriate safeguards within all law enforcement and security seizure powers. A whole of government approach should be settled on this issue prior to determining an approach for specific warrants under the Customs Act. The Government does not support recommendation 26(b) which is understood to be directed at applications for return of goods after they have been lawfully seized. The Government considers that where Customs have lawfully seized an item in an investigation after obtaining a warrant issued by a judicial officer (in which the applicant would have had the onus of establishing the necessity in all the circumstances of the seizure in question), a person whose items have been seized should be required to prove why those seized items should be returned to them.

 

Inquiry into the proscription of ‘terrorist organisations’ under the Australian Criminal Code

Tabled 20 September 2007 Government response to recommendations

(Note: Any legislative amendments to Part 5.3 of the Criminal Code require the approval of the majority of the States and Territories in accordance with the Inter-Governmental Agreement on the Counter-Terrorism Laws.)

 

Recommendation

Response

The implications and community impacts of proscription

Recommendation 1:

The Committee recommends that:

(a) The Attorney-General’s Department develop a communication strategy that is responsive to the specific information needs of ethnic and religious communities;

(b) There be direct consultation on the management of visa security assessments between ASIO, the Inspector-General of Intelligence and Security and the UN High Commission for Refugees.

The Government supports recommendation 1(a).

As noted in the Government response to the recommendations of the PJCIS’ report entitled Review of Security and Counter-Terrorism Legislation, the Attorney-General’s Department has undertaken considerable work to educate communities and create public awareness of the counter-terrorism laws. Future activities may involve extending the range of languages in which information pamphlets are produced, preparing supplementary explanatory material where there is a significant change to counter-terrorism laws, and providing presentations to a range of community groups and stakeholders about impending key amendments to counter-terrorism legislation.

The Government notes recommendation 1(b). ASIO is conscious of the need to avoid unnecessary delay in dealing with the significant volume of matters for which it must undertake a security assessment, and has implemented a number of strategies to this end. This activity is monitored by the IGIS who is periodically briefed on ASIO’s progress. Unlike the proscription legislation contained in the Criminal Code, security assessments deal only with individuals and not with groups.

The Government is committed to ensuring Australia is fully compliant with its obligations under the Refugees Convention and will raise and address any issues of concern when Australian representatives next meet with the UNHCR.

Selection of Entities

Recommendation 2:

The Committee recommends that the criteria ‘ideology and links to other networks and groups’ be restated so that:

(a) the link between acts of terrorist violence and the political, ideological or religious goals it seeks to advance is clearly expressed;

(b) links to other networks and groups that share the same world view is identified as a separate criteria.

The Government supports this recommendation by requiring ASIO and the Attorney-General’s Department to develop an unclassified protocol which outlines the key indicators which are taken into consideration when determining whether an organisation meets the statutory test for proscription. This recommendation refers to the six non-statutory factors ASIO uses as a guide to inform them when assessing whether an organisation meets the legislative requirements for listing as a terrorist organisation under the Criminal Code. The ‘six ASIO criteria’ were initially referred to by the former Director-General of ASIO, at a hearing on 1 February 2005 during the PJCIS’ review of the listing of six terrorist organisations. These criteria do not form an exhaustive list of issues considered by ASIO as ASIO considers a wide range of security factors when providing advice on organisations.

Procedural Issues

Recommendation 3:

The Committee recommends that the mandate of the Committee to review the listing and re-listing of entities as ‘terrorist organisations’ for the purpose of the Criminal Code be maintained.

The Government supports this recommendation. Section 102.1A of the Criminal Code provides for the Committee to review the listing and re-listing of terrorist organisations by the Government. The maintenance of these provisions will ensure that the Criminal Code provides a transparent and accountable mechanism for the Government to outlaw terrorist organisations and organisations that threaten the integrity and security of Australia or another country.

Recommendation 4:

The Committee recommends that the Government give consideration to reverting to the initial legislative approach of postponing commencement of a listing until after the disallowance period has expired. The Committee recognises that the Attorney-General should, in exceptional cases, retain the power to begin the commencement of a listing on the date the instrument is lodged with FRLI where the Attorney-General certifies that there are circumstances of urgency and the immediate commencement of the listing is required for reasons of national security.

The Government supports this recommendation and will adopt the practice of giving consideration to delaying the commencement of a listing regulation (when an organisation is listed for the first time) until after the Parliamentary disallowance period has expired. As recognised by the PJCIS, flexibility must be maintained within this approach so in circumstances where the Attorney-General considers that a listing should commence immediately (for example for security reasons), there remains scope for a regulation to commence when it is lodged with the Federal Register of Legislative Instruments (FRLI).

Recommendation 5:

The Committee recommends that strict liability not be applied to the terrorist organisation offences of Division 102 of the Criminal Code.

The Government notes recommendation 5 in line with recommendation 20 of the PJCIS Report on the Review of Security and Counter-Terrorism Legislation. The Government will refer the strict liability components of the offences for examination by the new National Security Legislation Monitor once appointed.

Recommendation 6:

The Committee recommends that:

(a) a regulation listing an entity should cease to have effect on the third anniversary of the date it took effect; and

(b) the Government consult with the Committee on streamlining the administration of proscription to enable periodic review of multiple listings during the parliamentary cycle.

The Government supports this recommendation.

The Government will further consult with the Committee on streamlining the administration of proscription.

Recommendation 7:

The Committee recommends that:

(a) the Attorney-General’s Department be responsible for the publication of comprehensive data on the application of terrorism laws;

(b) an Independent Reviewer be established and the Committee be conferred with responsibility for examining the Independent Reviewer’s reports to Parliament;

(c) the application of the proscription power be included in the review of counter-terrorism laws scheduled for 2010 under the auspices of the Council of Australian Governments.

The Government supports these recommendations.

(a) Refer to the comment on recommendation 1.

(b) Refer to Government response to the PJCIS Report on the Review of Security and Counter- Terrorism Legislation.

(c) The Government supports the recommendation that the proscription power be included in the review of counter-terrorism laws scheduled for the 2010 COAG review.

 


GOVERNMENT RESPONSE TO SENATE STANDING COMMITTEE ON FINANCE AND PUBLIC ADMINISTRATION REPORT

KNOCK, KNOCK... WHO’S THERE? THE LOBBYING CODE OF CONDUCT

January 2009

INTRODUCTION

The Australian Government welcomes the report of the Senate Standing Committee on Finance and Public Administration into the Lobbying Code of Conduct ‘Knock, knock... who’s there? The Lobbying Code of Conduct’.

The Lobbying Code of Conduct (the Code) was adopted by the Government in May 2008 to promote trust in the integrity of government processes and ensure that contacts between lobbyists and Australian Government representatives are conducted in accordance with public expectations of transparency, integrity and honesty.

In adopting the Code, the Government recognised that lobbying is a legitimate activity and part of the democratic process. However, there was a concern that Government representatives who are the target of lobbying activities are not always fully informed as to the identity of the people who have engaged a lobbyist to speak on their behalf. The Government considered that this information can be fundamental to the integrity of its decisions and should be freely available to those who are lobbied and to the wider public.

RESPONSE TO RECOMMENDATION

The Committee made one recommendation.

Recommendation 1

That the Senate Standing Committee on Finance and Public Administration conduct an inquiry into the operation of the Lobbying Code of Conduct in the second half of 2009.

Response

The Government notes the Committee’s recommendation.

The Government will keep the operation of the Register of Lobbyists under review and, if necessary, will consider the need for any changes to the Code and the way the Register operates.

COALITION SENATORS’ MINORITY REPORT

The Deputy Chair of the Committee, Senator Mitch Fifield, with Senator Concetta Fierravanti-Wells and Senator Scott Ryan, lodged a minority report with six recommendations.

Recommendation 1

That the Cabinet Secretary’s powers to exclude a lobbyist from the register be devolved to the Secretary of the Department of the Prime Minister and Cabinet.

Response

The Government does not support Recommendation 1 of the Minority Report.

The Government considers it is entirely appropriate that the Minister responsible for the Code, the Cabinet Secretary, have absolute discretion under the Code to direct the Secretary of the Department of the Prime Minister and Cabinet not to register a lobbyist or individual, or to remove a lobbyist or individual from the Register.

The Government expects that this power would be exercised rarely and only after affording natural justice to the individual or individuals concerned as is required under clause 10.5 of the Code. The Government notes that, to date, no lobbyist has been refused registration or removed from the Register at the direction of the Cabinet Secretary.

Recommendation 2

That a decision to exclude an individual or entity from the register be subject to appeal to the Administrative Appeals Tribunal, to ensure that legal resource is not cost prohibitive.

Response

The Government does not support Recommendation 2 of the Minority Report.

The Lobbying Code of Conduct has been established by Executive decision and any decisions made under the Code are not subject to appeal to the Administrative Appeals Tribunal (AAT).

The Government notes that the AAT does not have any power to review decisions of Ministers or officials unless they are made under an Act, Regulation or other legislative instrument that provides specifically that the decision is subject to review by the AAT.

The Code provides for natural justice to be afforded to effected lobbyists and there are avenues of legal appeal if necessary.

Recommendation 3

That coverage of the Code be expanded to embrace unions, industry associations and other businesses conducting their own lobbying activities.

Response

The Government does not support Recommendation 3 of the Minority Report.

The purpose of the Register of Lobbyists is to allow Ministers and officials to establish whose interests a lobbyist represents when they seek to influence Government officials.

Ministers and public servants cannot determine whose interests a third party lobbyist is promoting unless the lobbyist discloses that information to them.

Concerns about transparency do not arise in relation to in-house lobbyists and employees of peak industry bodies, trade unions and religious organisations, as it is clear whose interests they represent when they lobby Government representatives.

Recommendation 4

That post-employment restrictions on MOPS staff be removed from the Code.

Response

The Government does not support Recommendation 4 of the Minority Report. Clause 7 of the Code provides that persons who were, after 1 July 2008, employed in the Offices of Ministers or Parliamentary Secretaries under the Members of Parliament (Staff) Act 1984 (the MOP(S) Act) at Adviser level and above, as well as senior public servants and senior members of the Australian Defence Force, are prohibited, for a period of 12 months after they cease their employment, from engaging in lobbying activities, as a third-party lobbyist, relating to any matter that they had official dealings with in their last 12 months of employment. This is consistent with the policy underpinning the Code: that Ministers and other Government representatives have a right to know who stands to benefit from lobbying activities.

The Code therefore does not restrict former senior ministerial staff members from lobbying on behalf of companies that employ them after they cease their employment. However, it does impose a temporary restriction on their ability to work as third-party lobbyists on behalf of clients who operate in an area in relation to which they had official dealings in their last 12 months as a member of staff.

Former Ministers (and Parliamentary Secretaries) are subject to greater restrictions under the Standards of Ministerial Ethics. Ministers and Parliamentary Secretaries are required to undertake that, for a period of 18 months after ceasing to be a Minister, they will not lobby, advocate or have business meetings with members of the Government, public service or Defence Force on any matter that they had official dealings as a Minister in their last 18 months in office. This restricts a former Minister or Parliamentary Secretary from lobbying Government representatives during the specified period, even in an in-house capacity.

Recommendation 5

That the status of the Code Q&A section on the PM&C website be clarified to establish whether it forms part of the Code itself.

Response

The Government supports Recommendation 5 of the Minority Report.

The operation of the Register of Lobbyists is underpinned by the Lobbying Code of Conduct. The Questions and Answers (Q&As) on the Register of Lobbyists website (http://lobbyists.pmc.gov.au/lobbyistsregister/) do not form part of the Code. They have been designed to provide further information about the application of the Code.

However, to avoid any ambiguity or potential misunderstanding a preamble has been added to the Q&As page on the Lobbyists Register website confirming that the Q&As do not form part of the Code, but have been designed to provide guidance on the Code and the operation of the Register.

Recommendation 6

That the Code should not be expanded to apply to non-executive members of either House of Parliament nor to non-ministerial MOPS staff.

Response

The Government notes Recommendation 6 of the Minority Report.

The Executive cannot regulate the activities of Members of Parliament and any attempt to do so might amount to an improper interference with the free performance by a Member of his or her duties as a Member, contrary to section 4 of the Parliamentary Privileges Act 1987.

The Government notes that individual senators and members and non-ministerial staff can adopt the Code to limit their contacts with third-party lobbyists to those on the Register if they wish.


Government Response to the Parliamentary Joint Committee on Public Accounts and Audit Report 411 - Progress on equipment acquisition and financial reporting in Defence.

Recommendation

The committee recommends the Department of Defence address the Committee’s findings and provide an update to the Committee at a public hearing to be held 12 months from the tabling of this report.

Response

Agreed. The Department of Defence will provide the Committee with an update of its progress at a public hearing to be held around August 2009.

Defence notes and agrees with the findings made by the JCPAA in Report 411 Progress on equipment acquisition and financial reporting in Defence.

Defence is committed to continuous improvement in financial management and the Chief Finance Officer Group is happy to advise the committee that for the first time in seven years Defence received an unqualified audit report for its 2007-08 financial statements.

However, the CFOG agrees with the Committee that the large investment in financial training should be accompanied by the development of techniques to measure the effectiveness of this investment. Going forward, the key evaluation metrics to assess the financial training requirement and effectiveness will be based on areas of financial management risk and identified financial weaknesses. These metrics will be regularly monitored with reference to Defence’s controls framework, audit findings and compliance reporting issues.

In relations to Kinnaird Reform, the Defence Materiel Organisation wishes to reassure the Committee that it continues to work with Defence to improve the effectiveness and efficiency of procurement and containment activities.

The need to continue with reforms underway in the DMO and in defence capability development processes is a key theme of David Moritmer’s review of defence procurement and sustainment. The report entitled “Going to the Next Level” was tabled in the Parliament on 23 September by the Minister for Defence.

The DMO worked with the ANAO, with respect to the Major Projects Report, and the pilot report was tabled in the Parliament in November 2008. The report provides a standardised suite of information, and offers improved transparency and accountability.

Ordered that the committee reports be printed.