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Tuesday, 10 February 2015
Page: 316


Senator BRANDIS (QueenslandDeputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (17:14): I present four government responses to committee reports as listed at item 13 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—

AUSTRALIAN GOVERNMENT RESPONSE TO THE SENATE ENVIRONMENT AND COMMUNICATIONS REFERENCES COMMITTEE REPORT:

Environmental offsets

DECEMBER 2014

Report on S enate inquiry into environmental offsets Response to recommendations

Introduction

Environmental offsets are measures that seek to compensate for the residual adverse impact of an action on the environment and achieve equivalent environmental outcomes. Under national environmental standards all reasonable steps should first be taken to avoid and then mitigate adverse impacts on the environment, before environmental offsets are considered.

Offsets can provide an important and scientifically-robust means to deliver environmental outcomes while achieving social and economic benefits associated with Australia ' s development.

Use of environmental offsets has grown over the past decade. Internationally, Australia is among a number of countries that have adopted the use of environmental offsets as part of the environmental assessment and approval process. Within Australia, the Commonwealth and all states have legislation or policies in place on environmental offsets.

EPBC Act environmental offsets policy (2012)

The Australian Government utilises offsets through its regulation of environmental impacts under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The EPBC Act environmental offsets policy (2012) guides the use of offsets under national environmental law. The policy is accompanied by the offsets assessment guide, which is a metric that is used to determine the suitability of offsets for listed threatened species and ecological communities. It measures an offset against a relevant impact to determine whether the offsets proposal is suitable, and whether the net environmental impacts are acceptable.

The EPBC Act environmental offsets policy applies to all matters of national environmental significance protected under the EPBC Act with the exception of water resources in relation to coal seam gas and large coal mine developments, which was added as a new matter of national environmental significance after the release of the policy.

The offsets policy applies to offsetting requirements in terrestrial and aquatic (including marine) environments and for both project-by-project assessments and strategic assessments approved under Parts 9 and 10 of the EPBC Act, respectively. The policy has had effect for all referrals made since 2 October 2012, and to projects that were undergoing assessment and had not had a proposed approval decision made by 2 October 2012.

The EPBC Act environmental offsets policy and the offsets assessment guide were released in October 2012. The policy and guide were developed following detailed research and stakeholder consultation. This included the release of a consultation draft for public comment, targeted stakeholder engagement with peak industry and environmental bodies and close collaboration with researchers from the Australian National University and University of Queensland through the National Environmental Research Program. The development of the policy also gave consideration to the Business and Biodiversity Offsets Program Standard on Biodiversity Offsets (2012).

The offsets policy articulates the role offsets play under the EPBC Act and how suitable offsets are determined. It makes a significant contribution toward the establishment of national standards for environmental offsets.

One-Stop Shop

The Australian Government is working towards delivery of a One-Stop Shop for environmental approvals. States and territories will only be accredited when they can demonstrate that their processes meet high environmental standards. The standards are on the Department's website at http://www.environment.gov.au/system/files/resources/40e7000f-4d52-47fe-9a61-ff2b321aec3b/files/standards-accreditation-2014_0.pdf. The standards are based on requirements of Commonwealth law and will facilitate the maintenance of environmental outcomes through the One-Stop Shop.

The standards specify that any offsets delivered through an accredited process must achieve long-term environmental outcomes for matters protected under the EPBC Act and be consistent with either the EPBC Act Environmental Offsets Policy, or another policy which achieves the objects of the EPBC Act to an equivalent or better level.1

The Government has developed an assurance framework which will put in place arrangements to provide ongoing confidence to the Government and the public in the long term durability and effectiveness of the regulatory arrangements under the One-Stop Shop policy. This will provide a series of safeguards designed to provide ongoing confidence about environmental outcomes and the effectiveness of the regulatory system.

The Committee ' s recommendations

There remain opportunities to improve the implementation of offsets. Recent audit reports of offsets required as conditions of approval under the EPBC Act have identified issues in relation to ensuring protective mechanisms are attached to the title of a property in a timely fashion. There are a number of causes of these delays, including the complexities of negotiating with land owners for the protection and management of areas proposed as offsets as well as the legal complexities of registering a restrictive covenant on a title. There may be an opportunity for the Commonwealth to work with states and territories to streamline covenanting arrangements to achieve better outcomes for approval holders and the environment. The states and territories have responsibility for the legal mechanisms available to secure offsets and changing these mechanisms would ultimately be a decision for the states.

The policy and offsets assessment guide were scheduled to undergo a technical review one year after its release and a complete review of effectiveness against the aims of the policy every five years thereafter. The performance of the offsets policy against the stated objectives will be evaluated as part of these review processes. The one year technical review has been temporarily delayed to allow consideration of state and territory processes that may be accredited through the One-Stop Shop policy.

The EPBC Act offsets policy also commits to the development of a register for offsets, and that once completed, that information on offsets be made publicly available where it is possible to do so. This work is currently being considered in the context of improved coordination and display of environmental information across the jurisdictions that will support the Government's One-Stop Shop policy.

Response to committee report

Recommendation

Response

Recommendation 1: The committee recommends that the EPBC Act be amended to expressly recognise environmental offsets and to include the principles in the offsets policy as relevant considerations for the Minister in making decisions about conditions of approval relating to offsets

Not agreed.

The Australian Government has integrated the principles of the EPBC Act environmental offsets policy into the environmental assessment and approval process. The principles are therefore considered in approval decisions where offsets are relevant and it is not necessary to specifically include these considerations in the EPBC Act.

Recommendation 2: The committee recommends that the policy be revised to provide further clarity on the principle of additionality.

 

Recommendation 3: The committee recommends that the Department ensure that all offsets adequately reflect the principles of additionality, and are not granted in relation to areas that are already protected under existing Commonwealth, state or territory legislation or policy.

Noted.

The EPBC Act environmental offsets policy requires that offsets must be additional to what is already required, or determined by law or planning regulations, or agreed to under other schemes or programs.

Recommendation 4: The committee recommends that offsets be used as a last resort.

 

Noted.

The EPBC Act environmental offsets policy provides that offsets should only be considered if residual impacts are significant, and only following implementation of all reasonable avoidance and mitigation measures.

Recommendation 5: The committee recommends that, prior to approval being given for actions under the EPBC Act, the mitigation hierarchy be rigorously implemented, with a greater emphasis on avoidance and mitigation.

Noted.

The mitigation hierarchy is followed in considering approvals and conditions, and in assessing the adequacy of proposed offsets under the EPBC Act. The EPBC Act environmental offsets policy states that avoidance and mitigation measures are the primary strategies for managing the potential significant impact of a proposed action. Offsets will not be considered until all reasonable avoidance and mitigation measures are considered, or acceptable reasons are provided as to why avoidance and mitigation of impacts is not reasonably achievable.

Recommendation 6: The committee recommends that the policy be revised to provide greater guidance on developments in which offsets are unacceptable, including a list of 'red flag' areas, such as world heritage and critically endangered communities and species.

Not agreed.

The Australian Government acknowledges that the application of offsets for some protected matters, for example, World Heritage, may not always be appropriate. These decisions are made on a case-by-case basis. Offsets do not enable proposals with unacceptable residual impacts to be approved. Under the EPBC Act, the final decision as to whether a proposal will be approved rests with the Minister, including whether a proposal will have unacceptable residual impacts. The offsets policy makes it clear that the avoid, mitigate and offset hierarchy must be followed, and offsets used only when all reasonable avoidance and mitigation options have been considered.

Recommendation 7: The committee recommends that environmental offsets related to any particular development or activity should be clearly identified prior to approval being given for that development or activity.

Agreed in principle.

The EPBC Act environmental offsets policy states that offsets should be identified in a timely manner so as to reduce the risk of the offset not succeeding. Where offsets are unable to be clarified prior to approval, the proponent is required to identify and secure the required offsets, which must meet the offsets policy principles, in approval conditions within a specified timeframe.

Recommendation 8: The committee recommends that all environmental offsets plans and strategies, required as part of the conditions of approval under the EPBC Act, be published on the Department's website.

Agreed in principle.

Information concerning referrals and assessments under the EPBC Act, including approval conditions, is already made available on the Department of the Environment website. This includes requirements in approval conditions for approval holders to publish plans.

Under the One-Stop Shop policy and assurance framework, the Australian Government is working with the states and territories to improve information exchange and public access to environmental information.

Recommendation 9: The committee recommends that the Department expedite the development of a publicly available nationally coordinated register of environmental offsets.

Agreed in principle.

The establishment of a nationally coordinated register of environmental offsets would require the cooperation of all the states and territories. Initial work is currently being undertaken on the development of a register for offsets for EPBC Act approvals.

Under the One-Stop Shop policy and assurance framework, the Australian Government is working with the states and territories to improve information exchange and public access to environmental information.

Recommendation 10: The committee recommends that the Department develop a separate offsets policy in relation to the marine environment.

Noted.

The principles of the EPBC Act environmental offsets policy apply to offsetting requirements in both the terrestrial and aquatic, including marine, environments. The Australian Government is working with the states and territories to develop and implement more detailed approaches to marine offsets, including through strategic approaches such as the Reef Trust.

Recommendation 11: The committee recommends that the Department carefully verify all calculations and information provided by proponents in relation to environmental offsets.

Noted.

Information provided by proponents during environmental assessments, including proposed offsets, is thoroughly assessed by the Department of the Environment. The EPBC Act assessment process involves a thorough assessment of proposed offsets in accordance with the policy and using the offsets assessment guide.

Recommendation 12: The committee recommends that the scheduled technical review of the policy be commenced as soon as possible. The technical review should be made publicly available and should consider evidence provided to this committee in relation to the Offsets Assessment Guide.

Agreed.

The EPBC Act environmental offsets policy and offsets assessment guide play a key role in the Standards for Accreditation, which facilitate the maintenance of strong environmental outcomes through the One-Stop Shop policy. The technical review of the offsets assessment guide will commence following the implementation of the One-Stop Shop. Negotiations for the One-Stop Shop will continue on the basis of the established offsets policy and guide. Information and experience gained through the negotiations will then inform the technical review.

Recommendation 13: The committee recommends that resource and staffing levels within the Department should be sufficient to ensure adequate monitoring capacity in relation to approvals of conditions under the EPBC Act, including conditions relating to offsets.

Agreed.

The Department of the Environment has recently introduced a strategic risk-based approach to compliance monitoring and auditing of approval conditions imposed under the EPBC Act, including approval conditions concerning offsets. This will achieve higher-value compliance and enforcement outcomes, and, ultimately, better protection of Australia's environment and heritage.

In addition to the development of a risk-based project-prioritisation model, the Department has more than doubled the number of staff responsible for monitoring compliance with conditions since August 2011. In effect this means that the Department has more monitoring resources focused towards achieving the greatest environmental benefit.

Recommendation 14: The committee recommends that the Department's compliance audit program be extended to include an evaluation of the progress of offsets granted as conditions of approval under the EPBC Act in achieving their intended environmental outcomes.

Agreed.

The implementation of offsets required under the EPBC Act is evaluated by the Department of the Environment in management plans and compliance reports required by approval holders.

The Department of the Environment has recently introduced a strategic risk-based approach to compliance monitoring and auditing of approval conditions imposed under the EPBC Act, including approval conditions concerning offsets.

The Australian Government recognises the value of focusing regulatory effort on measuring outcomes, rather than monitoring process or administrative requirements.

The Government is currently exploring how to facilitate a more outcomes-based approach to environmental approvals, which will enable better measurement of the outcomes of EPBC Act approvals. For example, applying more outcomes-based offset conditions to environmental approvals would allow compliance audits to focus on the environmental outcomes achieved by offsets.

Recommendation 15: The committee recommends that the scheduled five-year review of the policy include consultation and evaluation of the extent to which offsets are achieving positive environmental outcomes.

Agreed.

The performance of the EPBC Act environmental offsets policy against the stated objectives will be evaluated as part of these review processes.

Recommendation 16: The committee recommends that the Department reviews the mechanisms for securing offsets under the EPBC Act with a view to ensuring that the strongest possible legal mechanisms are used or developed, if required, to secure offsets in perpetuity.

Noted.

The EPBC Act environmental offsets policy includes a requirement to consider suitable legal mechanisms to protect offsets and provides guidance on acceptable delivery mechanisms. The states and territories have responsibility for the various legal mechanisms available to secure offsets. Approval conditions concerning offsets under the EPBC Act work within the parameters of those mechanisms. There is an opportunity for the Commonwealth to work with the states and territories to streamline covenanting arrangements to achieve better outcomes for approval holders and the environment.

Recommendation 17: The committee recommends that the Department revise the policy to clarify that offsets need to be protected in perpetuity and should not be subject to future development.

Not agreed.

The EPBC Act environmental offsets policy states that the best legal mechanisms for protecting land are intended to be permanent and secure. The requirement for offsets is tied to the length of the impact. Offsets should be in place for the duration required to ecologically recover from the impact of the proposal.

The offsets policy also states that, where a proposal is likely to impact on an existing EPBC Act offset, there should be a referral. If determined to be a controlled action, the policy requires that the person proposing to take the action must develop an offsets package to compensate for both the impact of the proposed action, as well as the original action for which the offset was a condition of approval.

Recommendation 18: The committee recommends that the Department include requirements in conditions of approval under the EPBC Act for the secure funding of the future management of offset areas.

Agreed in principle.

The EPBC Act environmental offsets policy recognises the value of ongoing management of offsets in contributing towards a measurable conservation gain for an impacted protected matter. Many approval conditions under the EPBC Act require ongoing management of offset areas during the period of the action. Offset proposals that include management funding, where that is important for the efficacy of the proposed offset, are more likely to be accepted for approval.

Recommendation 19: The committee recommends that the Department examine and review options to ensure a more strategic approach to offsets, including encouraging greater use of 'advanced offsets'.

Agreed in principle.

The EPBC Act environmental offsets policy encourages the supply of offsets before an impact occurs. Under the One-Stop Shop policy, the Government will explore more strategic approaches to offsets, such as advanced offsets and offsets in relation to strategic assessments, in collaboration with the states and territories. The Reef Trust is another model that will facilitate more strategic approaches to offsets, through ongoing evaluation and adaptive management to focus on critical areas for investment in sustainably managing the Great Barrier Reef.

Recommendation 20: The committee recommends that a consistent national standard be developed in relation to environmental offsets based on the policy.

 

Noted.

Under the One-Stop Shop policy, states and territories will be required to meet the high environmental standards of the EPBC Act, including in relation to offsets. An assurance framework has been developed to ensure these standards are met. The provisions of the approval bilateral agreements with each state and territory will give effect to the assurance framework.

The Australian Government has released Standards for Accreditation of Environmental Approvals under the EPBC Act, which articulates the environmental standards and considerations for accreditation of state and territory approval processes through bilateral agreements. Standard 28 requires that offsets under a state process must achieve long-term environmental outcomes for matters protected under the EPBC Act and be consistent with either the EPBC Act environmental offsets policy, or another policy accredited by the Minister as achieving the objects of the EPBC Act to an equivalent or better level.

For example, the draft approval bilateral agreement with Queensland requires that Queensland applies the EPBC Act environmental offsets policy, except where the Commonwealth Minister is satisfied that the Queensland offsets policy will result in outcomes equivalent to or greater than the outcome that would be achieved under the EPBC Act environmental offsets policy.

Recommendation 21: The committee recommends that the Australian Government not accredit state and territory approval processes under the EPBC Act.

Not agreed.

The Australian Government is committed to delivering a One-Stop Shop for environmental approvals that will accredit state planning systems under national environmental law, where high environmental standards are met. The One-Stop Shop will create a single environmental assessment and approval process for nationally protected matters.

 

Response to Australian Greens minority report

Recommendation 1: The Government must refuse projects which have unacceptable impacts on matters of national environmental significance, rather than using offsets as a fig leaf to allow continued approvals.

 

Noted.

The EPBC Act environmental offsets policy clearly states that offsets do not enable proposals with unacceptable residual impacts to be approved. Offsets will not be considered until all reasonable avoidance and mitigation measures are considered.

Recommendation 2: The Government should immediately revoke the approval for the Maules Creek coal mine, and Whitehaven Coal should be prosecuted for providing the Government with false information in order to get approval for their environmentally disastrous mine at Maules Creek.

Not agreed.

The approval for Whitehaven Coal ' s Maules Creek coal mine was undertaken in accordance with the requirements of the EPBC Act.

Recommendation 3: The Government should immediately revoke approval for Waratah Coal's Galilee Coal Project.

Not agreed.

The approval for Waratah Coal ' s Galilee coal and rail project was undertaken in accordance with the requirements of the EPBC Act

Recommendation 4: The Government should immediately revoke approval for the Abbot Point coal terminal dredging and dumping.

Not agreed.

The approval for the North Queensland Bulk Ports Abbot Point coal terminal capital dredging project was undertaken in accordance with the requirements of the EPBC Act

Recommendation 5: Any existing offset areas already secured must be protected in perpetuity and not subject to further development.

Not agreed.

The various legal mechanisms available to secure offsets are the responsibility of the states and territories. The EPBC Act environmental offsets policy requires that suitable legal mechanisms for offsets be considered and must work within the parameters of those mechanisms to enable the best legal security that is practicable. The requirement for offsets is tied to the length of the impact. Offsets should be in place for the duration required to ecologically recover from the impact of the proposal.

The offsets policy also states that, where a proposal is likely to impact on an existing EPBC Act offset, there should be a referral. If determined to be a controlled action, the offsets policy requires that the person proposing to take the action must develop an offsets package to compensate for both the impact of the proposed action, as well as the original action for which the offset was a condition of approval.

______________

1 Standards for Accreditation of Environmental Approvals under the Environment Protection and Biodiversity Conservation Act 1999, p. 11-12.

 

AUSTRALIAN GOVERNMENT RESPONSE TO THE RECOMMENDATIONS OF THE SENATE LEGAL AND CONSTITUTIONAL AFFAIRS REF ERENCES COMMITTEE IN ITS REPORT:

Current investigative processes and powers of the Australian Federal Police in relation to non-criminal matters

February 2015

Introduction

The Australian Government welcomes the recommendations of the Senate Legal and Constitutional Affairs References Committee (the Committee) in its report Current investigative processes and powers of the Australian Federal Police in relation to non-criminal matters (the report).

The Committee received eight submissions. The Australian Federal Police (AFP) prepared a written submission dated March 2014 and a supplementary submission dated April 2014 for the Committee. The Attorney-General's Department (AGD) did not prepare a written submission, but endorsed both the AFP's submission and the supplementary submission. The AFP and the Commonwealth Director of Public Prosecutions (CDPP) appeared before the Committee at a public hearing held on 7 April 2014. On 5 May 2014, the Committee provided two written questions on notice to AGD concerning issues raised by the Rule of Law Institute of Australia in relation to the use of search warrants and production notices during investigations under the Proceeds of Crime Act 2002 (Cth) (POC Act). On 9 May 2014 AGD responded to these questions on notice.

The Committee's report was published on 15 May 2014. The report makes nine recommendations relating to investigations in support of civil action under the POC Act.

In responding to the recommendations, the Government has taken advice from the following Commonwealth Government departments and agencies with responsibility for and expertise in matters relating to investigations in support of civil actions under the POC Act:

the Attorney-General's Department

the Australian Federal Police, and

the Commonwealth Director of Public Prosecutions.

Agreed.

The Government notes that the AFP provides training to investigators that focusses on proceeds of crime and asset confiscation. The AFP will refresh its training and investigative guidance resources to address more directly the nature of investigations in support of proceeds of crime actions.

Recommendation 2:

That, when making applications for search warrants under s 225 of the POC Act, the AFP presents all relevant information to the issuing magistrate, including full details of any other information gathering activities undertaken by the AFP in relation to the matter and whether such activities are ongoing.

Agreed.

The Government agrees that when making applications for search warrants under the POC Act, the issuing officer should be presented with all relevant information.

As part of normal practice the AFP makes all relevant information available to issuing officers when making an application for a search warrant under the POC Act. The matters examined by the Committee in relation to this recommendation arose because quality assurance was not as stringent as it should have been in this specific instance. The AFP established the Investigations Standards and Practices portfolio in April 2014 to mitigate against this issue occurring again, and to ensure consistency against standards and practices within AFP investigations.

Agreed.

The AFP considers it best practice for its investigators to have with them copies of the relevant legislation when seeking the authorisation of warrants, orders or otherwise, from relevant judicial authorities under the POC Act. This is already part of AFP standard local procedures and has been reinforced through an all staff reminder issued on 21 May 2014.

Recommendation 4:

The Commonwealth Government investigates options for distinguishing literary proceeds matters from other matters under the POC Act with particular consideration given to:

-retaining literary proceeds matters within the POC Act, and amending the POC Act to distinguish clearly between literary proceeds matters and other proceeds of crime matters; or

- removing literary proceeds matters from the POC Act altogether and creating standalone legislation to deal with literary proceeds matters.

Noted.

Not agreed.

The Government does not consider that distinguishing more clearly in legislation between literary proceeds matters and other matters under the POC Act would significantly assist law enforcement officers or a magistrate to fulfil their functions in relation to an investigation of a literary proceeds matter or further the policy aims of the POC Act. More effective support to literary proceeds investigations could be afforded by providing clear guidance to law enforcement officers and to magistrates regarding the protocols associated with investigations of literary proceeds matters. This will be achieved through implementation of recommendations 1-3 of the Committee's report.

In considering this recommendation, the Government has taken into account that creating a separate regime for literary proceeds orders—whether within the POC Act or in standalone legislation—would add to the complexity of legislation. Keeping literary proceeds orders with other kinds of orders within the POC Act aligns with the Government's commitment to legislative clarity.

Literary proceeds actions, like the majority of actions in the POC Act, are civil, rather than criminal in nature and the information-gathering mechanisms contained in these provisions are common across a range of civil proceedings. The name of the Act reflects the policy intent of the laws to ensure that criminals do not profit from their crimes, and does not imply criminality on the part of the companies that are party to investigations under the Act. The Government does not agree with the view expressed by the Committee that the name of the POC Act may give rise to the impression that any company investigated under its provisions must be involved in criminal activity.

Not agreed.

The Government considers that in order for the AFP to conduct effective investigations under the POC Act, it is important that the AFP retains flexibility in the choice of investigatory tools it may employ. The full suite of information gathering and investigatory powers provided for under the POC Act should be available to the AFP in investigations of proceeds of crime matters. The Government considers that implementation of this recommendation would potentially hamper investigations of proceeds of crime matters.

The Government also considers that it is possible that in some circumstances, issuing a production order prior to obtaining a search warrant is likely to prejudice an investigation by putting a person on notice that they are being investigated, thus giving them the opportunity to move their assets out of the reach of law enforcement.

Recommendation 6:

The Commonwealth Government investigates options for introducing enforceable undertakings powers as an option available to law enforcement agencies during literary proceeds investigations.

Not Agreed.

At a hearing before the Committee on 7 April 2014, the AFP indicated that it was open to considering the viability of introducing enforceable undertakings in literary proceeds investigations. Such undertakings, which would be voluntarily entered into, would require an organisation to notify the AFP that it has granted, or will grant, a benefit to a person who the AFP suspects has committed a relevant offence. Following this consideration, the AFP has determined that enforceable undertakings would be of no operational benefit in literary proceeds matters. The process of negotiating an enforceable undertaking is likely to be complex and would require both the AFP and the relevant organisation to expend considerable time and resources, particularly as the commercial interests of an organisation in publishing a story are unlikely to align with the aims of a POC Act investigation to prevent the flow of literary proceeds.

As a result of these complexities, negotiating an enforceable undertaking is unlikely to be a viable option for either police or media organisations, especially in circumstances where the payment of literary proceeds is imminent. Delay caused by protracted negotiations is likely to impede and frustrate the ability of the AFP to lawfully acquire information relevant to the payment of literary proceeds.

Not agreed.

The Government considers that implementing this recommendation would introduce further impediments to investigations of proceeds of crime matters and would frustrate the ability of the AFP to lawfully acquire information during investigations of proceeds of crime matters.

Any person or organisation that is party to a police investigation is required to comply with relevant laws. The Government does not support creating specific arrangements for media organisations, as distinct from other organisations or individuals, during investigations of criminal matters. In order to effectively investigate suspected criminal behaviour, it is important that the AFP should have timely access to all relevant information, irrespective of the nature of the organisation that is in control or possession of that information. The introduction of enforceable protocols during investigations by the AFP may also generate uncertainty concerning the interaction of such protocols with existing obligations under the POC Act.

Recommendation 8:

The AFP and relevant media and publishing stakeholders develop guidelines to be observed during the execution of search warrants on the premises of media organisations in circumstances where a claim of journalists' privilege is made.

Agreed in principle.

Journalists' privilege is currently recognised in section 126H of the Evidence Act 1995 (Cth), which provides protection for confidential journalists' sources during court proceedings, and ensures that journalists and their employers cannot be compelled to identify a confidential informant in court.

In considering this recommendation, the Government has noted that the privilege enjoyed by journalists is not the same as legal professional privilege. Whereas legal professional privilege applies during investigations of criminal matters, journalists' privilege does not apply during criminal investigations. Journalists' privilege in Australia is a product of evidence law, and is relevant to the admissibility of evidence in court proceedings only.

The AFP will work with relevant stakeholders to develop a search warrant execution protocol. The protocol would apply only in circumstances where a journalist has agreed with an informant to keep the informant's identity confidential. Generally speaking, the journalist's source in a literary proceeds matter will be known to the AFP, because it is the exploitation of the individual's criminal notoriety that is the basis for seeking the literary proceeds order. For this reason, the protocol would also apply only where the informant is not the subject of the proceeds of crime investigation.

Not agreed.

As noted above, journalists' privilege in Australia is a product of evidence law and is only relevant to the admissibility of evidence during court proceedings

The Government considers that this recommendation, if implemented, would in practice elevate journalists' privilege to the same status as legal professional privilege in that the status of the material subject of the claim would need to be adjudicated by a court prior to any access by investigators. Implementing this recommendation would introduce further impediments to the investigation of proceeds of crime matters, and therefore frustrate the ability of the AFP to lawfully acquire information during such investigations.

 

AUSTRALIAN GOVERNMENT RESPONSE TO THE JOINT STANDING COMMITTEE ON THE NATIONAL CAPITAL AND EXTERNAL TERRITORIES:

Report on the visit to the Indian Ocean Territories

21-25 October 2012

August 2014

Recommendation 1

The Committee recommends that the Australian Government, as a matter of urgency, commit sufficient funds to give effect to the recommendations of the Expert Working Group on Christmas Island, as set out in its final report.

Noted. Australian Government agencies have been implementing the accepted recommendations, within available capital resources.

Recommendation 2

The Committee recommends that the Australian Government formulate a vision or strategic plan in direct consultation with the island communities for the future of the IOTs. This vision will articulate:

better governance and administrative arrangements

a greater degree of administrative autonomy

a commitment to the funding and implementation of existing strategies commissioned by the Commonwealth in respect of

   - economic development

   - the provision of services

   - protection of the environment

the aspirations and needs of the island communities

how different aspects of government policy will be coordinated.

Noted. The Minister with responsibility for the Indian Ocean Territories has asked the Department of Infrastructure and Regional Development to review the current arrangements to ensure the most efficient and effective service delivery approach is in place for the IOT.

Recommendation 3

The Committee Recommends that the Australian Government develop a formal mechanism to allow consultation with and feedback from the Indian Ocean Territories ' communities in relation to the application of Western Australian law to the IOTs and the negotiation and implementation of SDAs.

Noted. The Administrator of Christmas Island and the Cocos (Keeling) Islands is the Minister's representative on island and provides the linkage between the communities and the Commonwealth, including feedback from the community in relation to the application of legislation and Service Delivery Arrangements. The Australian Government released the 2013-14 IOT Budget Book on 3 April 2014 to provide greater transparency. The Department of Infrastructure and Regional Development will also develop a service feedback form to be rolled out in 2014.

Recommendation 4

The Committee recommends that the Australian Government conduct a full biosecurity assessment of the IOTs.

Noted. The Australian Government is conducting such an assessment on Norfolk Island and will look to the outcomes of that study before forming a view on its applicability to the IOT.

Recommendation 5

The Committee recommends that the Australian Government develop and commit to an economic strategy for the Indian Ocean Territories to transition the economy of the IOTs from its current situation, heavily reliant on a mining or government activity, to one based on sustainable private sector activity. This strategy is to be formulated by the Australian Government in conjunction with the local communities.

Noted. The economic base for Christmas Island and Cocos (Keeling) Islands is extremely narrow and the opportunities to diversify are limited. The Australian Government looks to support new opportunities in the economy based on comparative advantage. Accordingly, the Australian Government has extended the mine lease, is fostering a market garden and is supporting tourism activities by supporting local associations.

Recommendation 6

The Committee recommends that as part of its overall economic strategy for the Indian Ocean Territories and in the context of creating environmental management investment, the Australian Government commit to the extension of the current mining leases and re-examine new mining leases on Christmas Island.

Supported. A new mine lease with Phosphate Resources Limited was signed on 27 June 2013. This provided the mine with an extended lease until 2034 which will allow for continued employment and investment, including workforce renewal.

Recommendation 7

The Committee recommends that as part of its overall economic strategy for the Indian Ocean Territories, the Australian Government commit to the implementation of existing strategies commissioned by the Commonwealth to develop tourism in the Indian Ocean Territories, and develop long term arrangements to secure air services, including subsidising flights to Asia, and improve tourism-related infrastructure and facilities.

Not supported. The Australian Government considers that airline services should operate on as commercial a basis as possible with minimal underwriting. The Department of Infrastructure and Regional Development will be reviewing existing contracts to ensure that appropriate services are delivered at the lowest cost. It is not Government policy to subsidise flights to Asia.

Recommendation 8

The Committee recommends that the Australian Government commit to the reopening of the casino on Christmas Island and that it facilitate the approval process to allow this to happen if a proposal comes forward.

Noted. While the Government supports economic and tourism development for Christmas Island, broader Government and community consultation would be required prior to any consideration of a proposal to re-establish a casino.

Recommendation 9

The Committee recommends that the Australian Government commit to extending and upgrading mobile telephone services in the Indian Ocean Territories to provide access to 3G/4G telephone services.

Not supported. Mobile telephony is a commercial service provided by the private sector.

Recommendation 10

The Committee recommends that the Australian Government provide road funding to the Indian Ocean Territories on a more flexible basis, with longer grant periods, rolling funding, and more local discretion upon how the funds are used.

Not supported. As part of the Indian Ocean Territories budget, the Shires receive funding equivalent to road and Financial Assistance Grant payments. The Department of Infrastructure and Regional Development has worked with the Shires to improve road planning and the delivery of maintenance services. This delivers better outcomes for the community than extending timeframes. Further, the Department has established a ten year road plan. Where there are extenuating circumstances, such as unusual weather conditions, extending timeframes is taken into account as part of normal business processes. This provides for a more strategic approach.

Recommendation 11

The Committee recommends that the Australian Government commit funds to the sealing of the road to the Immigration Reception and Processing Centre as a matter of priority.

Supported. This work has commenced under the ten year road plan, within the available budget.

Recommendation 12

The Committee recommends that the Australian Government review its policy towards shipping of freight by plane and ship to the Indian Ocean Territories with a view to leveraging off Commonwealth efficiencies to find the most cost effective outcome for the communities in the IOTs.

Noted. Shipping services operate on a commercial basis. Air passenger and freight services are tendered and there is some underwriting where needed but they operate where possible on a commercial basis. The Australian Government regularly reviews its policies, programmes and contractual arrangements to ensure the delivery of efficient and effective services.

Recommendation 13

The Committee recommends that the Australian Government provide funds for the construction of a recreation centre/cyclone shelter on West Island as a matter of urgency.

Not supported. The current cyclone shelter on West Island is adequate for the current resident population. A new combined cyclone/recreation centre is not able to be constructed within available capital resources.

Recommendation 14

The Committee recommends that the Department of Immigration and Citizenship develop a cyclone contingency plan for its operations on the Cocos (Keeling) Islands which will provide safe accommodation meeting Australian cyclone standards on island for asylum seekers in the event of a cyclone without undue risk or inconvenience to the local community.

Noted. The former Quarantine Station on West Island is not currently being utilised to accommodate illegal maritime arrivals and has not been required for this purpose since October 2013. Therefore, there is currently no operational need for cyclone shelter facilities on this site. Notwithstanding this, contingency plans have been developed for use in the event of a cyclone or extreme weather event on the Cocos (Keeling) Islands. The local emergency management committee, through the Territory Controller (the senior officer of the Australian Federal Police assigned to community policing duties in the Territory), will direct the placement of people, including any illegal maritime arrivals that may be present on the islands, in the event of an emergency.

Recommendation 15

The Committee recommends that the Australian Government urgently address the insurance problems facing the communities of the Indian Ocean Territories, if necessary by investigating the provision of insurance to those communities.

Not supported. A number of remote communities are experiencing similar issues of insurance affordability and availability. Australian Government policy maintains that insurance is a market-driven issue. In similar situations some communities have engaged in cooperative action to gain access to insurance and increase coverage. Cooperative action could be through industry bodies who may maintain insurance schemes for their members or the use of brokers for collective insurance.

Recommendation 16

The Committee recommends that the Australian Government provide the necessary funding to implement a comprehensive waste management strategy on the Cocos (Keeling) Islands, including funding facilities for the incineration of organic waste and the safe removal of inorganic waste from the islands.

Supported. The Shire of Cocos (Keeling) Islands has a waste management strategy in place. The Australian Government has funded the early stages of this project. Applications for additional funding will be considered within the context of available resources.

Recommendation 17

The Committee recommends that the Australian Government fund the stockpiling of geofabric bags for the better management of coastal erosion on the Cocos (Keeling) Islands.

Not supported. The stockpiling of geofabric bags is not an effective use of funds. The Australian Government funds the purchase and placement of geofabric bags to arrest erosion on Cocos (Keeling) Islands on an as needs basis. The placement of geofabric bags to arrest erosion adjacent to the fuel depot and West Island Health Clinic was completed in April 2014.

Recommendation 18

The Committee recommends that the Australian Government take steps to improve the opportunities for local businesses to participate in work under contract, including by separating large tenders into individual parts or allowing local businesses to tender for parts of contracts.

Noted. All procurements must comply with Commonwealth Procurement Rules and the Public Governance, Performance and Accountability Act 2013, and all tenders include clauses promoting local business participation.

Recommendation 19

The Committee recommends that the Australian Government provide increased storage capacity for petrol on Christmas Island as a matter of urgency.

Supported. The Australian Government has already provided funding to increase storage capacity for petrol on Christmas Island. An additional petrol tank is currently under construction and work is expected to be completed by December 2014.

Recommendation 20

The Committee recommends that the Australian Government commence planning for, and funding of, a dedicated aged-care facility to be collocated with the Christmas Island Hospital.

Noted. The Minister with responsibility for the Territories has requested an analysis of aged care services in the Indian Ocean Territories. The Department of Infrastructure and Regional Development is preparing an initial review of aged care which will inform the development of a broader strategy for the provision of aged care services and facilities for the IOT.

Recommendation 21

The Committee recommends that the Australian Government undertake a comprehensive housing survey to establish levels of availability and demand for housing in the Indian Ocean Territories.

Noted. An accommodation needs assessment was completed in 2011 and is available on the Department of Infrastructure and Regional Development website. The Australian Government has invested in the construction of 28 new dwellings on Christmas Island which were completed in July 2014, and continues to monitor housing availability and demand.

Recommendation 22

The Committee recommends that the Australian Government provide funds for the raising of the sea wall in the Kampong, with a view to facilitating design and construction within the next two years.

Noted. The Australian Government, through the Department of Infrastructure and Regional Development, has investigated alternative solutions to a complete reconstruction and continues to repair and maintain the existing sea wall as required. In addition, following consultation with the Christmas Island Shire Council, construction has commenced on a low wall which is designed to reduce possible flooding of the Kampong during significant swells.

Recommendation 23

The Committee recommends that the Australian Government adjust the rules for the pensioner airfare concession, which currently provides for an annual flight to Perth, to allow for an equal concession to be put towards flights to Asia.

Not supported. The Australian Government does not support international travel subsidies for pensioners.

Recommendation 24

The Committee recommends that the Australian Government provide the necessary funding to implement a comprehensive waste management strategy on Christmas Island, including funding facilities for the incineration of organic waste and the safe removal of inorganic waste from the island.

Supported. The Shire of Christmas Island has a waste management strategy in place. The Australian Government has funded the early stages of this project. Applications for additional funding will be considered within the context of available resources.

Recommendation 25

The Committee recommends that the Australian Government make the Regional Price Index for the Indian Ocean Territories publicly available.

Supported. The Regional Price Index has been released and is available on the Department of Infrastructure and Regional Development's website.

 

AUSTRALIAN GOVERNMENT INTERIM RESPONSE TO THE JOINT SELECT COMMITTEE ON NORTHERN AUSTRALIA REPORT:

Pivot North—Inquiry into the Development of Northern Australia: Final Report

December 2014

The Australian Government welcomes Pivot North—Inquiry into the Development of Northern Australia: Final Report, the Joint Select Committee on Northern Australia's (the Committee's) final report into developing northern Australia. The Committee's work is invaluable in helping the Government prepare the White Paper on Developing Northern Australia (the White Paper), especially through its consultations with stakeholders and identification of potential policies and actions to support economic development. The Committee received a total of 352 submissions from interested parties, and held 27 public hearings across northern Australia.

The report addresses important issues covering the economy, trade, industry, Indigenous communities, land, liveability and the environment. It also highlights a range of challenges to northern development, including in relation to population, costs of living and doing business, infrastructure and the regulatory environment. The report makes recommendations spanning economic infrastructure, private sector investment, the northern workforce, regulatory reform, governance, agriculture, power and land.

The Committee's report is informing the Government's White Paper, which is being prepared. The White Paper will set out a clear and well defined policy platform for unlocking the full potential of the north, including actions through to 2030. The Government will respond to the Committee's specific recommendations through the White Paper.

The White Paper is also drawing on around 180 submissions to the Government's Green Paper (released on 10 June 2014) and stakeholder consultation. The Government is engaging with the Queensland, Western Australian and Northern Territory governments, including through a Strategic Partnership of the Prime Minister, Deputy Prime Minister and the First Ministers of the northern jurisdictions. A Northern Australia Advisory Group, chaired by the Hon Shane Stone AC QC, is also providing advice to this Partnership.

While the White Paper is being prepared, the Government is continuing to demonstrate its serious commitment to northern Australia, including through investing in roads and other transport infrastructure, opening livestock export markets in the Middle East and southeast Asia, settling a new Designated Area Migration Agreement for Darwin to help address critical labour constraints, and funding a range of other initiatives. The Government has also established Free Trade Agreements with China, Japan and Korea, which will eliminate high tariffs on Australian goods of importance for northern Australian producers.