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Thursday, 22 September 2011
Page: 6872


Senator WONG (South AustraliaMinister for Finance and Deregulation) (15:44): I present four government responses to committee reports as listed on today’s Order of Business. In accordance with the usual practice, I seek leave to incorporate the documents in Hansard.

Leave granted.

The documents read as follows—

GOVERNMENT RESPONSE TO SENATE ECONOMICS COMMITTEE INQUIRY INTO THE GROCERYCHOICE WEBSITE

Committee Recommendation 1

The committee recommends that the Commonwealth Auditor General investigate the tender process undertaken by the Australian Competition and Consumer Commission in relation to the data collection contract for the GROCERYchoice website.

Noted

The Auditor-General has discretion to exercise his powers and is not subject to direction in relation to whether or not a particular audit is to be conducted. The Auditor General considered this matter and determined that further investigation was not warranted.

Committee Recommendation 2

The committee recommends that the Australian Competition and Consumer Commission take more care in the future to monitor and assess the performance of contractors that undertake data collection on its behalf.

Noted

The Australian Competition and Consumer Commission (ACCC) is an independent statutory authority. The Government has confidence in the ACCC's ability to manage its contractor arrangements in accordance with the Financial Management and Accountability Act 1997 and the Commonwealth Procurement Guidelines.

Committee Recommendation 3

The committee recommends that the Government reveal its plans for an industry operated grocery price data website.

Noted

The Government does not intend to mandate an industry-run website which compares grocery prices.

The Government notes that there has been an increase in the provision of online grocery price content by major supermarkets. The Government welcomes this move and encourages industry to continue to improve access to accurate, up-to-date information to assist consumers to make better informed purchasing decisions.

Committee Recommendation 4

The committee recommends that the Government note the unfair manner in which its contractual arrangements with CHOICE were prematurely terminated by the Minister for Competition Policy and Consumer Affairs, the Hon. Dr Craig Emerson MP, without affording CHOICE a right of reply, and ensure that such unprofessional and discourteous conduct does not occur again.

Not accepted

The Government met with all relevant parties, including CHOICE, prior to making its decision to terminate the Grocerychoice website. Following these consultations, the Government determined that it was not feasible to implement the originally envisaged Grocerychoice proposal.

Committee Recommendation 5

The committee recommends that both the Government and the Australian Competition and Consumer Commission note that the operation of the GROCERYchoice website was prejudicial and unfair to independent retailers.

Not accepted

The Grocerychoice website was designed to improve transparency in the grocery market and to help consumers locate the cheapest overall grocery prices and supermarket chain in their area.

The selection of supermarkets for the Grocerychoice survey was generally restricted to those with a total floor area of greater than 1,000 square metres. However, a small number of exceptions to this were required where a sufficient number of supermarkets of this size did not exist. The survey was designed carefully to exclude 'express' or 'convenience' stores.

Committee Recommendation 6

Additionally and specifically, the committee recommends that the Australian Competition and Consumer Commission apologise to Tasmanian Independent Retailers for unfairly comparing small independent retailers to major chain supermarkets in its price surveys for the GROCERYchoice website, thereby disadvantaging smaller operators and contributing to undeserved negative press in the Mercury on 7 August 2008.

Noted

The ACCC is an independent statutory authority. The Government trusts that the ACCC will make its own decisions with respect to this matter.

Committee Recommendation 7

The committee recommends that the Australian Competition and Consumer Commission investigate any potential breaches of the Trade Practices Act 1974 in relation to the role played by the Australian National Retailers Association in negotiations with CHOICE on the GROCERYchoice website.

Noted

The ACCC is an independent statutory authority established under the Competition and Consumer Act 2010 (CCA, previously the Trade Practices Act 1974). The ACCC is tasked with the enforcement of the CCA including the prohibitions on anti-competitive conduct set out in Part IV of the CCA.

The Minister is specifically prohibited by the CCA from giving the ACCC a direction regarding its performance or the exercise of its powers under the anti-competitive conduct provisions of the CCA.

Whether anti-competitive conduct concerns arise in the context of trade associations advocating on behalf of their members will depend on the facts of each case. The Government understands that the ACCC has not identified any concerns under the competition provisions in the CCA with regard to the conduct of any party in relation to the Grocerychoice website.

Committee Recommendation 8

The committee recommends that the Government learn from this episode of waste and mismanagement and ensure that such inappropriate and careless spending does not occur again in the future, noting that now, more than ever, value for money for the taxpayer should be a top priority.

Noted

The Government has confidence in the framework provided by the Financial Management and Accountability Act 1997 (FMA Act), which establishes a positive and personal obligation on every agency Chief Executive to manage the affairs of their agency in a way that promotes the 'proper use' of Commonwealth resources.

Proper use is defined in section 44 of the FMA Act as the efficient, effective, economical and ethical use of Commonwealth resources that is not inconsistent with the policies of the Commonwealth. Although the concepts of efficient and effective already encompassed the concept of economical, the Government inserted the term 'economical', with effect from 1 March 2011, to emphasise the requirement to avoid waste and increase the focus on the level of resources that the Commonwealth applies to achieve outcomes.

Senator Xenophon Recommendation 1

That the government improves competition in the groceries sector by requiring supermarkets to provide full price transparency to enable and empower consumers with pricing information before they shop, enabling greater entry to the market by independents and small retailers; and by addressing geographic price discrimination, predatory pricing and other anti competitive practices.

Noted

The Government is committed to encouraging competition in the groceries sector and has undertaken a range of measures to increase opportunities for entrants and promote competition. To date, the Government has:

changed the foreign investment policy to extend the timeframe for the development of vacant commercial land;

clarified the predatory pricing provisions in the Competition and Consumer Act 2010 (CCA);

provided information about the Australian retail grocery industry in international trade forums to attract new entrants into the Australian market; and

introduced a mandatory, nationally-consistent unit pricing regime to enable consumers to easily compare different brands or product sizes.

In addition, on 16 June 2011, the Government introduced the Competition and Consumer Legislation Amendment Bill 2011. This Bill includes proposed amendments to clarify the operation of the mergers and acquisitions provisions of the CCA in relation to 'creeping acquisitions'. These amendments were previously introduced in 2010, but lapsed at the time of the 2010 Election.

The Government is also working with the States and Territories, through the Council of Australian Governments, to ensure that any unnecessary or unjustifiable planning and zoning restrictions that protect existing businesses from new and innovative competitors are eliminated. To assist in this process, in April 2010, the Government requested that the Productivity Commission undertake a study of the operations of the states and territories' planning and zoning systems. The Productivity Commission released its report, Performance Benchmarking of Australian Business Regulation: Planning, Zoning and Development Assessments, on 16 May 2011. The report identifies best practice approaches to support competition in land use markets.

Further, the ACCC has announced agreements with major supermarket operators to phase out restrictive provisions in supermarket leases. Coles, Woolworths, ALDI, Franklins, SPAR, Foodworks, Metcash and Supabarn have all agreed with the ACCC that they will not include restrictive provisions in any new supermarket leases. For existing supermarket leases, the supermarket operators have also agreed that they will not enforce any restrictive provisions beyond five years after the commencement of trading.

The Government notes that a prohibition on geographic price discrimination was considered and rejected by the Senate Standing Committee on Economics in its inquiry into the Trade Practices Amendment (Guaranteed Lowest Prices - Blacktown Amendment) Bill 2009, which proposed to amend the CCA. 

Senator Xenophon Recommendation 2

That the system of dealing with tenders by the ACCC be improved and more transparent given the curious and unsatisfactory explanation given for why Informed Sources was not awarded this tender on the basis of cost and its prior work with the ACCC.

Noted

The ACCC is an independent statutory authority. The Government has confidence in the ACCC's ability to manage its contractor arrangements in accordance with the Financial Management and Accountability Act 1997 and the Commonwealth Procurement Guidelines.

Senator Xenophon Recommendation 3

That prior to any government-run or government funded price comparison website being established in the future, significant time be allocated towards planning, modelling and consultation so to ensure effectiveness, relevance and requirements of such a website.

Noted

The Government does not intend to re establish a government-run website which compares grocery prices.

Senator Xenophon Recommendation 4

That companies providing bids for government projects identify any potential conflict of interest and that they be required to provide detailed information on how confidentiality and integrity of the project will be adhered to. Further, that an ongoing audit of their work be carried out at random intervals throughout the project, regardless of whether an incident has first arisen to cause suspicion.

Noted

The Government is confident that the Commonwealth Procurement Guidelines and Fraud Control Guidelines under the Financial Management and Accountability Act 1997 provide agencies with the appropriate framework to effectively manage their contractor arrangements, including conflicts of interests.

Senator Xenophon Recommendation 5

That the Trade Practices Amendment (Guaranteed Lowest Prices - Blacktown Amendment) Bill 2009 is enacted, to deal effectively with the anti-competitive practice of geographic price discrimination.

Noted

As noted in the Government's response to Senator Xenophon Recommendation 1, a prohibition on geographic price discrimination was considered and rejected by the Senate Standing Committee on Economics in its inquiry into the Trade Practices Amendment (Guaranteed Lowest Prices - Blacktown Amendment) Bill 2009.

 

Australian Government Response to the Senate Standing Committee on Environment, Communications and the Arts Committee Report:

Operations of the Environment Protection and Biodiversity Conservation Act 1999 (First, Second and Final Reports)

September 2011

AUSTRALIAN GOVERNMENT RESPONSE TO THE SENATE INQUIRY INTO THE OPERATION OF THE ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 (CTH)

The Senate Standing Committee on Environment, Communications and the Arts commenced an inquiry into the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) in 2008. The Inquiry produced two reports: the first report, tabled on 18 March 2009, covered the operation of the EPBC Act generally and the second report, tabled on 30 April 2009, covered the interaction between the EPBC Act and the Regional Forest Agreement Act 2002 (Cth).

On 13 March 2009, the then Minister for the Environment, Heritage and the Arts, the Hon Peter Garrett AM MP wrote to the independent reviewer of the EPBC Act, Dr Allan Hawke and requested that Dr Hawke consider the findings and recommendations of the Senate Inquiry in his Independent Review of the EPBC Act.

The recommendations of the Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (the Review Report) have taken into account the recommendations of the Senate Inquiry. The Australian Government Response to the Senate Inquiry is based on the Australian Government Response to the Review Report.

The Australian Government Response to the Review Report has been released and can be found at:

http://www.environment.gov.au/epbc/publications/epbc-review-govt-response.html

 

Senate Inquiry Recommendation

Australian Government Response

1. The committee recommends that the objects of the Act be amended to remove the words 'to provide for' from section 3(1)(a) and 3(1)(ca).

Not agreed

The Australian Government does not agree to amend the objects of the Act. The government view is that the objects of the EPBC Act are already sufficiently clear and that there is no need to change them at the present time.

See also the response to Recommendations 1 and 3 of the Review Report.

2. The committee recommends that the appropriateness of a greenhouse trigger under the Act and the nature of any such trigger, should it be required, be carefully considered in light of the findings of the independent review and in the context of the government's overall response to climate change, in particular the CPRS.

Noted

See the government response to Recommendation 10 of the Review Report.

3. The committee recommends that, having regard to the conclusions of the review of the National Framework for the Management and Monitoring of Australia's Native Vegetation currently underway, and in light of advice from the Threatened Species Scientific Committee, the government should consider including a land clearing trigger in the Act.

Noted

The Review Report, after careful consideration, did not recommend a land clearing trigger due to difficulties in defining significant impact and the existence of land clearance controls at state and territory level.

The Australian Government agrees with the Review Report and does not support the inclusion of a land clearing trigger in the EPBC Act. The government notes that the EPBC Act already regulates land clearing which will have, has had or is likely to have a significant impact on a matter of national environmental significance (NES), for example where the vegetation proposed to be cleared is a significant area of habitat for a threatened species. The government proposes to include 'ecosystems of national significance' as a new matter of NES within the amended Act. This will further improve protection of native vegetation: see also the government response to Recommendation 8 of the Review Report.

4. The committee recommends that the government give urgent consideration to increasing the resources available to the department in the areas of assessment, monitoring, complaint investigation, compliance, auditing projects approved under Part 3, and enforcement action.

Noted

The Australian Government's response to Recommendation 62 of the Review Report states that it will explore options for recovering some or all of the costs of administering the Act, and that the pace and scale of implementation of the reform package will be directly determined by cost recovery.

Appropriate cost recovery arrangements can more equitably share the costs of protecting the environment between the community and those who derive a private benefit and a social licence from an activity that is approved under the Act. Cost recovery will also allow environmental assessments and approvals to keep pace with Australia's growing economy.

The government will be undertaking a comprehensive consultation process on potential cost recovery arrangements in accordance with the Australian Government Cost Recovery Guidelines. This will directly inform a Cost Recovery Impact Statement to ensure that government is fully informed in taking a decision on potential new cost recovery arrangements, and on the subsequently determining the size and scale of the reform package.

5. The committee recommends that the department undertake regular evaluation of the long-term environmental outcomes of decisions made under the Act, and that the government ensure agency resources are adequate to undertake this new activity.

Agreed in principle

The Australian Government's response to the Review Report agrees to:

Further investigate a system for National Environmental Accounts (see the response to Recommendation 67)

Audit the outcomes of environmental approval (see the response to Recommendation 24); and

Establish a broad compliance and performance audit power (see the response to Recommendation 61).

Together, these initiatives will significantly increase the capacity of the department to evaluate outcomes.

6. The committee recommends that the Independent Review of the EPBC Act and / or the ANAO examine the effect of existing bilateral agreements on the quality of environmental assessments of matters of national environmental significance. The committee suggests that particular regard be given to the transparency of, public engagement in, and appeal rights in relation to assessments performed under a bilateral agreement, compared to the conditions that would have existed had the assessment been performed under the EPBC Act.

Noted

The findings of the Review Report support the continuation of bilateral agreements. In its response to the Review Report, the Australian Government has committed to the development of national standards for environmental impact assessment and for accrediting decisions by states in relation to matters of national environmental significance. While these standards have yet to be developed, the government is committed to the principle of equivalent protection: that is, any State and Territory legislation that is accredited should deliver an equivalent level of environment protection and due process, to that which would otherwise apply under the EPBC Act. See also the government response to Recommendation 4 of the Review Report.

7. The committee recommends that the government review the interaction between the EPBC Act and the Fisheries Management Act in relation to the conservation of fish species and relevant assessment processes.

Agreed in principle

The Australian Government agrees to amend the EPBC Act to streamline the interaction between the fisheries assessment provisions in Parts 10, 13 and 13A. The government will also improve the interaction between the EPBC Act and the Fisheries Management Act by linking the Commonwealth Fisheries Harvest Strategy Policy framework with the threatened species listing process for marine fish under the EPBC Act. The government will be undertaking a further review of the Fisheries Management Act 1991 to address potential duplication with the EPBC Act.

8. The committee recommends that the process for nomination and listing of threatened species or ecological communities be amended to improve transparency, rigour and timeliness. Changes that should be considered include:

Either requiring publication of the Scientific Committee's proposed priority assessment list or reducing ministerial discretion to revise the priority list under section 194K; and

Reducing the maximum period allowed for an assessment under section 194P(3).

 

Agreed In-Principle

In responding to the Review Report, the Australian Government has agreed to the establishment of a single list of nationally threatened species and ecological communities. The Government will be working with state and territory governments to establish a harmonised listing process.

The Government supports increased transparency in the species listing processes and agrees to publicly release the advice of the new Biodiversity Scientific Advisory Committee (see response to Recommendation 44).

 

9. The committee recommends that government policy regarding the use of 'offsets' for habitat conservation state that the use of offsets:

is a last resort;

must deliver a net environmental gain; and

should not be accepted as a mitigating mechanism in instances where other policies or legislation (such as state vegetation protection laws) are already protecting the habitat proposed for use as an offset.

Agreed in part

See the Australian Government's response to Recommendation 7 of the Review Report, which agrees to lead consideration by a suitable inter-jurisdictional forum of a national system or national standards to provide consistency across jurisdictions for biodiversity banking and the use of offsets. The Government will release a policy on environmental offsets to provide greater certainty for business and improve environmental outcomes.

10. The committee recommends that consideration be given to expanding the scope for merits review in relation to ministerial decisions under the Act, particularly in relation to:

whether an action is a controlled action,

assessment decisions; and

decisions on whether a species or ecological community is to be listed under the Act.

The committee recommends that the independent review examine this possibility in the first instance, and that the process of consideration should include consultation with the Administrative Appeals Tribunal.

 

Noted

The Australian Government regards controlled action, assessment decisions and listing decisions as inappropriate for merits review.

The controlled action and assessment approach decisions are preliminary “filtering” decisions to determine whether the environmental impact assessment regime of the Act has been triggered, and if so, what level of assessment is appropriate. The short statutory timeframes for making such decisions reflect the Parliament's desire for an efficient and timely process as set out in the Objects of the Act. The government considers that there is no environmental benefit to be gained by merits review of these preliminary decisions and there is considerable risk of frustrating an efficient and timely process.

In reaching these conclusions the government notes that the Review Report stopped short of recommending a change. Indeed, the Review Report drew attention to the fact that merits review of these decisions could slow down the process. The Review Report also queried whether the nature of the controlled action decision makes it suitable for merits review. The government agrees with both these points: see also the government responses to Recommendations 48, 49 and 50 of the Review Report.

The government also considers that decisions on whether to list a species or ecological community under the Act are inappropriate for merits review. As outlined in the government's response to Recommendation 15 of the Review Report, the listing process is based on an independent and rigorous scientific assessment by the Threatened Species Scientific Committee. The government supports continuation of this process under the amended Act.

The government agrees that there is scope to improve the transparency and quality of the decision-making process. This will be achieved through the implementation of the changes contained in the government's responses to Recommendations 44-46.

The government notes that the independent review process included consultation with the Administrative Appeals Tribunal.

 

Senate Inquiry Recommendation

Australian Government Response

Recommendation 1, Second Report:

The committee notes that the Minister for Environment has formally asked the Independent Review of the EPBC Act to consider the findings and recommendations of this inquiry (see letter 13 March 2009). Accordingly the committee recommends that the Independent Review consider the findings in this report and recommend proposals for reform that would ensure that RFAs, in respect of matters within the scope of Part 3 of the EPBC Act, deliver environmental protection outcomes, appeal rights, and enforcement mechanisms no weaker than if the EPBC Act directly applied.

Agreed-In-Part

The Australian Government notes that the Review Report considered the proposals of the second Senate Inquiry report. See the Government's response to Recommendations 38 and 39 of the Review Report.

 

Parliamentary Joint Committee on Intelligence and Security

Review of Administration and Expenditure No. 8 - Australian Intelligence Agencies

Tabled 21 June 2010

Government’s Response to Committee’s Recommendations

Recommendation 1: The Committee recommends that the Intelligence Services Act 2001 be amended to include AFP counter-terrorism elements in the list of organisations that the Committee reviews.

The Government does not support this recommendation. The Government has previously considered whether the PJCIS should extend its oversight to include Australian Federal Police (AFP) counter terrorism elements, and most recently advised the PJCIS in 2010 that the Government was not proposing to extend the mandate of the PJCIS to include oversight of the AFP’s counter terrorism functions. This is to avoid duplication with existing, extensive oversight mechanisms and to avoid placing an additional burden on the AFP requiring extra resources to meet PJCIS oversight requirements.

The AFP is not part of the Australian Intelligence Community (AIC) and, as a law enforcement agency (not a hybrid law enforcement and intelligence agency), is subject to different oversight mechanisms to the AIC. It is important that the PJCIS does not duplicate existing oversight mechanisms which already include a range of Parliamentary committees. The AFP is subject to statutory reporting on individual powers including telecommunications interception, controlled operations, control orders and surveillance devices. Significant external oversight of AFP activities is also provided by the legal system. In fact, oversight by the courts during prosecution and other processes is a key difference between the AFP and the AIC.

Specific parliamentary oversight is provided by the Parliamentary Joint Committee on Law Enforcement, which has the following functions concerning the AFP:

to monitor and to review the performance by the AFP of its functions;

to report to both Houses of the Parliament, with such comments as it thinks fit, upon any matter appertaining to the AFP or connected with the performance of its functions to which, in the opinion of the Committee, the attention of the Parliament should be directed;

to examine each annual report on the AFP and report to the Parliament on any matter appearing in, or arising out of, any such annual report;

to examine trends and changes in criminal activities, practices and methods and report to both Houses of the Parliament any change which the Committee thinks desirable to the functions, structure, powers and procedures of the Australian Crime Commission (ACC) or the AFP; and

to inquire into any question in connection with its functions which is referred to it by either House of the Parliament, and to report to that House upon that question.

As well, the AFP’s Professional Standards area provides internal oversight and is responsible for all organisational professional standards matters. The Commonwealth Law Enforcement Ombuds­man maintains an oversight role in relation to conduct issues, public complaints and has the power to initiate investigations into AFP practices and procedures. Further, the Australian Com­mission for Law Enforcement Integrity is an independent and proactive agency established to detect and prevent serious and systemic corrup­tion by the AFP and the ACC. The Independent National Security Legislation Monitor (INSLM) will conduct independent reviews of Common­wealth counter-terrorism and national security legislation and provides another oversight mechanism. The PJCIS may refer a matter to the INSLM for it to consider as part of its functions.

Recommendation 2: The Committee recommends that the Government agree to amending the Intelligence Services Act 2001 to enable specific material which does not affect current operational activity to be provided to the Committee. A small working group drawn from relevant departments, agencies and the Committee should be set up to prepare this amendment for consideration by the Government.

The Government does not support this recommendation. The current accountability framework supports the provision of candid and impartial advice to government. Expanding the role of the PJCIS by amending the Intelligence Services Act 2001, as proposed, would create ambiguity in accountability and oversight arrangements as well as duplication between the roles of the PJCIS and the Inspector-General of Intelligence and Security (IGIS). The PJCIS and the IGIS are the two primary, and complementary, pillars of external accountability arrangements for the AIC.

The Government believes the existing division of labour between the Committee and IGIS remains sound and do not want to alter this longstanding and successful arrangement. The IGIS role is to ensure that the agencies act legally and with propriety, comply with ministerial guidelines and directives and respect human rights. IGIS provides independent assurance for the Prime Minister, senior ministers and Parlia­ment as to whether Australia's intelligence and security agencies act legally and with propriety by inspecting, inquiring into and reporting on their activities.

For more specific and operational issues, IGIS is well positioned to oversee agencies’ activities. The independence of the Office of the IGIS and the scope of its powers ensure that operational decisions, intelligence assessments and informa­tion to aid government decision making are not subject to public or partisan contention. The Government notes that the importance of the IGIS role is recognised in Recommendation 8, concerning the resources for that Office.

Under the current arrangements, the PJCIS notes that the AIC provides it with ‘significant and meaningful information’ to support the Committee’s review of the AIC’s administration and expenditure in the Government’s view. The current practices for briefing the PJCIS on delicate matters work well to facilitate this.

Recommendation 3: The Committee recommends that the Australian Government monitor resources allocated to e-security to ensure they are adequate.

The Government supports this recommendation. The Government considers cyber security to be one of Australia’s top national security priorities, as recognised in the 2008 National Security Statement. Australia’s ever increasing dependence on information and communications technology means the Govern­ment must remain vigilant to emerging online threats. Cyber security threats pose a range of challenges to Australian Internet users, business and Government—and all systems connected to the Internet are potential targets. Australia’s national security, economic prosperity and social wellbeing are critically dependent upon the availability, integrity and confidentiality of a range of information and communications technology.

Australia’s security and intelligence agencies have stated publicly that they are experiencing increasingly sophisticated attacks on systems in the public and private sectors. As the quantity and value of information has increased so too have the efforts of malicious actors. For example, ASIO's mandate includes working with domestic stakeholders in government and private enterprise to counter all aspects of foreign nation state espionage—including electronic espionage. ASIO has expressed concerns about the scale and reach of electronic espionage against Australian interests, both in government and commercial computer systems, as it presents resource challenges.

The Government has allocated resources for cyber security across portfolios and agrees it would be prudent to keep this matter under review. Any proposals brought forward for additional funding would need to comply with the Budget Process and Operational Rules. A number of relevant mechanisms have been initiated since the release of the Committee’s Review. These mechanisms are intended to ensure adequate consideration is given to resources aspects, including distribution among relevant agencies:

The Department of the Prime Minister and Cabinet (PM&C) undertakes a Coordinated National Security Budget as part of the annual Budget cycle. This is informed annually by the Department of Finance and Deregulation’s National Security Funding Compendium, a self reporting stocktake of national security funding across the Commonwealth; and

In addition to these annual processes, PM&C is developing a Cyber White Paper, scheduled for release in mid-2012, which will outline how government, industry and the community can work together to address the challenges and risks that arise from greater digital engagement. The White Paper will consider the entire spectrum of cyber issues including consumer protection, cyber safety, cyber crime, cyber security and cyber defence. Part of the White Paper process will be an analysis of the current rate of effort and resources allocated to cyber-related activities, which the Government believes will further assist in fulfilling the requirements of this recommendation.

Recommendation 4: The Committee recommends that the Australian Government review the medium and long term accom ­ modation requirements of those members of the Australian Intelligence Community pres ­ ently housed in multiple locations in Canberra. Where multiple locations for a single agency diminish operational effectiveness or effici ­ ency, consideration should be given to plan ­ ning alternative longer term accommodation at the one site.

The Government, in principle, supports this Recommendation, however, believes that many of the accommodation issues identified at the time of the report have now been resolved. This was achieved through the establishment of a dedicated ASIO building (due for completion in 2012), as well as provision for the leasing of a new building for ONA.

Recommendation 5: The Committee recommends that, should the proposal to amend the open access period of the Archives Act 1983 proceed, consideration should be given to special provisions for AIC documents to be exempted, on a case by case basis, from release at 20 years.

The Government notes this recommendation.

The ‘open access’ period in the Archives Act 1983 (Archives Act) has been amended since the release of the Committee’s Review by the Freedom of Information Amendment (Reform) Act 2010. These amendments reduced the open access period for most Commonwealth records from 30 years to 20 years. While the amendments do not contain special provision for AIC documents, there are exemptions in the Archives Act available for sensitive information which warrants protection from public disclosure, including exemptions for information concerning security, defence and international relations and information communicated in confidence. The changes to the open access period began on 1 January 2011 and will be phased in over a 10-year period.

An Access Examination Working Group formed in 2008 has supported ongoing formal and informal consultation between the National Archives of Australia and agencies about the release of information concerning security, defence and international relations and information communicated in confidence. The working group is chaired by the National Archives and its membership is made up of representatives from the Department of the Prime Minister and Cabinet, Department of Defence, Department of Foreign Affairs and Trade, the Australian Federal Police and security agencies.

Recommendation 6: The Committee recommends that the Australian Government review the potential adverse effects of the effi ­ ciency dividend on the Australian Intelligence Community having particular regard to the Joint Committee of Public Accounts and Audit report The efficiency dividend and small agencies: Size does matter.

The Government does not support this recommendation. The efficiency dividend is an integral part of the devolved financial management framework where agencies are provided with the flexibility and autonomy to spend the funds appropriated directly to them by the Parliament. Successive governments have used the efficiency dividend as an effective mechanism to secure public service efficiencies, thus allowing the Australian taxpayer to share in these gains. It also important to recognise the significant funding growth in the AIC over the last decade, which materially outweighs the size of the efficiency dividend for these agencies.

In relation to the Joint Committee of Public Accounts and Audit report ‘The efficiency dividend and small agencies: Size does matter’, it should be noted that the Government did not agree to a blanket exemption for small agencies but, rather, stated that it continued to consider it appropriate that all Commonwealth entities continue to operate efficiently and make further productivity gains, irrespective of their size. It did accept that, from time to time, circumstances may arise in individual entities that magnify the impact of the efficiency dividend, and it concluded that such situations should be addressed individually on their merits by seeking additional funding through the budget process.

The subsequent review ‘Report of the Review of the Measures of Agency Efficiency’, which was commissioned by the Government to examine the best way of promoting efficiency in government on a continuing basis, was released in April 2011. In its response to this review, the Government agreed to allow flexibility in the application of the efficiency dividend by enabling Portfolio Ministers to reallocate the efficiency dividend between agencies within their portfolio with effect from the 2011-12 Budget.

Recommendation 7: The Committee recommends that the Intelligence Services Act 2001 be amended to include a provision requiring the ANAO to report to the Committee on its review of the AIC.

The Government does not support this recommendation. As the Committee will be aware, the Auditor-General Act 1997 sets out the responsibility of the Auditor-General to report to the Parliament. The Act also provides the Auditor-General with discretion in the conduct of his or her functions or powers (Section 8 of the Act refers). Successive Auditors-General have been responsive to requests by the Parliament and Parliamentary Committees, including to appear and discuss issues of importance to Committees. The Auditor-General supports the continuation of this practice.

Against this background, the Auditor-General would prefer the current arrangements, which involve the Auditor-General responding to a request from the Committee, remain in place in lieu of a legislative approach, for which there is no direct precedent. The Government agrees with the Auditor-General’s view.

Recommendation 8: The Committee recommends that, due to the increased activities of the Australian Intelligence Com ­ munity and the additional functions required of the IGIS, the budget of the Office of the Inspector General of Intelligence and Security be increased.

The Government does not support this recommendation. The Inspector-General of Intelligence and Security, Dr Vivienne Thom, has advised that the resources (including staff) currently available to her are sufficient to ensure that her Office can provide effective oversight of the activities of the AIC. She is able to prioritise and reallocate resources when inquiries arise.

The Inspector-General regularly reviews the resourcing of her office, especially as and when new inquiries are commenced. Supplementary funding may be requested if the Inspector General considers that any particular inquiry requires resources additional resources. Dr Thom has advised that, in her experience, when such supplementary funding is requested, the Government has made it available. For example, funding for the office was supplemented to the value of:

$434,000 for the conduct of the inquiry into the actions of actions of relevant Australian agencies in relation to the arrest and detention overseas of Mr Mamdouh Habib from 2001 to 2005, which commenced in January 2011; and

$40,000 for the conduct of the inquiry allegations of inappropriate vetting practices by the Defence Security Authority, which commenced in June 2011.

 

 

Joint Standing Committee on Treaties

Report 116: Review into treaties tabled on 24 and 25 November 2010, 9 February and 1 March 2011; Treaties referred on 16 November 2010

Government Response

Recommendation 4

The Committee supports the Exchange of Letters implementing Amendments to Article 3, and to Annex G, of the Australia New Zealand Closer Economic Relations trade Agreement (ANZCERTA) and recommends binding treaty action be taken.

Recommendation 5

The Committee recommends the Minister of Innovation, Industry, Science and Research report to the Committee on the measures implemented to address the impact of “duty drawback” on Australia's structured apparel sector under the amendments to Article 3 and to Annex G of ANZCERTA, and monitor the ongoing effects on the sector after 2012.

The Department of Foreign Affairs and Trade (the Department) notes the Recommendations in Item 6 of the Joint Standing Committee on Treaties (JSCOT) Report 116 concerning the Exchange of Letters Constituting an Agreement between the Government of Australia and the Government of New Zealand to amend Article 3 of the Australia New Zealand Closer Economic Relations Trade Agreement, and Exchange of Letters Constituting an Agreement between the Government of Australia and the Government of New Zealand to amend Annex G of the Australia New Zealand Closer Economic Relations Trade Agreement.

The Department is pleased that JSCOT's Recommendation 4 of Item 6 supports the Exchange of Letters Constituting an Agreement between the Government of Australia and the Government of New Zealand to amend Annex G of the Australia New Zealand Closer Economic Relations Trade Agreement (ANZCERTA) and recommends binding treaty action be taken. Action to amend ANZCERTA is at an advanced stage. The amendments will reduce the administrative burden on businesses, facilitate eligibility of duty-free entry of goods into both markets, and provide greater consistency between the ANZCERTA Rules of Origin and those of other trade agreements negotiated by Australia. It will ensure ANZCERTA remains the benchmark for Australia's free trade agreements.

In relation to JSCOT's Recommendation 5 of Item 6, the Department notes that it is the principle agency responsible for implementing Australia's obligations as a signatory to ANZCERTA. The Department notes that New Zealand and Australia both have duty drawback schemes. The Department of Innovation, Industry, Science and Research (Innovation) and the Treasury are the principle agencies responsible for policy oversight of Australia's Duty Drawback Scheme, which is administered by the Australian Customs and Border Protection Service (Customs and Border Protection). Duty drawback payments enable Australian exporters to obtain a refund of customs duty paid on imported goods where those goods will be treated, processed or incorporated in other goods for export; or are exported without being used or consumed while in Australia. Innovation advises that Australian exporters are able to apply for duty refunds under duty drawback arrangements, including duty paid on imported inputs to goods exported to New Zealand under ANZCERTA.

The Department and Innovation have an ongoing commitment to monitoring the effects of ANZCERTA on all Australian industry and will continue to monitor the ongoing effects on Australia's structured apparel sector after 2012. Innovation advises that successive Governments have demonstrated their commitment to an internationally competitive Australian Textile, Clothing and Footwear (TCF) industry. The latest TCF innovation package is designed to provide incentives to promote innovation and associated investment to those sectors of the industry facing the greatest adjustment in the context of trade liberalisation. It is expected that this investment in innovation will lead to the development of a sustainable and internationally competitive Australian TCF industry, by supporting the development of new products and processes, particularly at the high-tech, high-value end of the market. Innovation continues to work with the TCF industry to facilitate the implementation of the TCF innovation package.

Recommendation 10

The Committee recommends that all future amendments to the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL) be tabled in Parliament in sufficient time for the view of Parliament to be taken into consideration before the period for objections to the amendment ends.

Noted.

Most amendments to MARPOL enter into force automatically. These amendments are usually technical in nature and are aimed at improving or formalising international standards. There is no requirement for States Parties to MARPOL to ratify them or to otherwise do anything for the amendments to enter into force. Amendments to MARPOL are usually adopted at meetings of the Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO) which are held three times in each biennium. States Parties usually have a period of about 12 months following adoption during which time they can lodge objections to the amendments with IMO. To date Australia has not seen the need to object to any amendments to MARPOL. Australia has been involved in the work to develop the amendments.

The Department of Infrastructure and Transport (the Department) acknowledges that the amendments to MARPOL considered at the Committee's hearing on 25 March 2011 were tabled after the period during which Australia could lodge an objection to the amendments had passed. The Department will endeavour to ensure that all amendments to MARPOL which are adopted at future MEPC meetings are tabled prior to the expiration of the period during which Australia could lodge an objection.

Recommendation 11

The Committee recommends that all future amendments to the Convention Establishing the Multilateral Investment Guarantee Agency and International Finance Corporation Articles of Agreement be tabled in Parliament in sufficient time for the view of Parliament to be taken into consideration before the amendments come into force.

The Government accepts this recommendation. The Government shares the Committee's desire to have amendments to these Acts considered by Parliament before they come into force. As noted in the Committee's report, there was insufficient time for the current amendments to receive parliamentary consideration due to the voting schedule at the World Bank and the 2010 Federal Election. As far as possible, future amendments will be provided to the Committee before they come into force.

Recommendation 14

The Committee recommends that the Attorney-General report to the Committee on any proposed amendments to the Commonwealth or State and Territory law in support of the Council of Europe Convention on Cybercrime.

Done.

The Attorney-General wrote to the Chair of JSCOT on 1 July 2011 reporting on the Cybercrime Legislation Amendment Bill 2011, which contains the measures necessary for Australia's accession to the Council of Europe Convention on Cybercrime.