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Senate Legislative and General Purpose Standing Committees Consolidated reports on the consideration of bills July - December 2012 Volume 3 - Foreign Affairs, Defence and Trade, Legal and Constitutional Affairs and Rural and Regional Affairs and Transport


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Australian Senate

Senate Legislation Committees

Reports on the consideration of bills July-December 2012

Volume 3

-

Australian Senate

Senate Legislation Committees

Reports on the consideration of bills

July-December 2012

Volume 3

Foreign Affairs, Defence and Trade Committee

Legal and Constitutional Affairs Committee

Rural and Regional Affairs and Transport Committee

© Parliament of the Commonwealth of Australia 2012

ISSN 1834-4062

This document was printed by the Printing Unit, Department of the Senate, Parliament House, Canberra.

TABLE OF CONTENTS

Foreign Affairs, Defence and Trade Committeet " Defence Trade Controls Bill 2011*, dated October 2012 ....................................... 1

" Military Court of Australia Bill 2012* and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012*, dated August 2012....................................................... 65

t Volume 2 contains report of the Foreign Affairs, Defence and Trade Committee

Legal and Constitutional Affairs Committee " Courts Legislation Amendment (Judicial Complaints) Bill 2012* and Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012*, dated August 2012 ....................................................... 69

" Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures Bill 2012*, dated November 2012..................................... 127

" Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012*, dated September 2012................................................................................... ...... 145

" Customs Amendment (Smuggled Tobacco) Bill 2012*, dated August 2012.................................................................................................197

" Freedom of Information Amendment (Parliamentary Budget Office) Bill 2012*, dated November 2012............................................................217

" Law Enforcement Integrity Legislation Amendment Bill 2012*, dated November 2012 ............................... ..... ............................................... ...... 237

" Maritime Powers Bill 2012* and Maritime Powers (Consequential Amendments) Bill 2012*, dated September 2012..........................................................................................269

" Migration Amendment (Health Care for Asylum Seekers) Bill 2012, dated December 2012.................................................................................305

" Military Court of Australia Bill 2012* and Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012*, dated October 2012.....................................................345

" Passenger Movement Charge Amendment Bill 2012*, [PP 463/2012] * Correction, tabled September 2012 ...................................... ,.417

" Privacy Amendment (Enhancing Privacy Protection) Bill 2012*, [PP 255/2012] * Correction, tabled October 2012 ................................................ 418

" Regulatory Powers (Standard Provisions) Bill 2012*, dated October 2012.............................................................................................. 419

The following report was printed separately to this volume: " Privacy Amendment (Enhancing Privacy Protection) Bill 2012* [see PP 255/2012]

Rural and Regional Affairs and Transport Committee " N il.......................................................................................

*Provisions of bill referred to committee.

The Senate

Foreign Affairs, Defence and Trade

Legislation Committee

Defence Trade Controls Bill 2011 [Provisions]

Final report

October 2012

1

© Commonwealth of Australia 2012

ISBN 978-1-74229-703-3

Printed by the Senate Printing Unit, Parliament House, Canberra

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Members of the committee Core Members

Senator the Hon Ursula Stephens, ALP, NSW (Chair) Senator Alan Eggleston, LP, WA (Deputy Chair) Senator Mark Bishop, ALP, WA Senator David Fawcett, LP, SA Senator Anne McEwen, ALP, SA Senator Scott Ludlam, AG, WA

Participating Members

Senator the Hon David Johnston, LP, WA Senator Gary Humphries, LP, ACT

Secretariat

Dr Kathleen Dennody, Committee Secretary Miss Jedidiah Reardon, Senior Research Officer Ms Penny Bear, Research Officer

Ms Jo-Anne Holmes, Administrative Officer

Senate Foreign Affairs, Defence and Trade Legislation Committee Department of the Senate PO Box 6100 Parliament House Canberra ACT 2600 Australia

Phone: +61 2 6277 3535 Fax: +61 2 6277 5818

Email: fadt.sen@aph.gov.au Internet: http://www.anh.gov.au/Parliamentary Business/Committees/Senate Commit tees?url=fadt ctte/index.htm

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Table of contents

Members of the committee........................................................................................ iii

Chapter 1

Terms of the Inquiry................................................................................................... 1

Background to the Defence Trade Controls Bill 2011.............................................1

Purpose of the bill ........... ...........................................................................................1

Conduct of the inquiry...............................................................................................2

Preliminary report...................................................................................................... 3

Final report.................................................................................................................4

IT AR reform.............................................................................................................. 4

Acknowledgements................................................................................................... 5

Chapter 2

Consultations and proposed amendments...............................................................7

Roundtables................................................................................................................8

Outcome of the roundtable discussions....................................................................9

Response by the university sector...........................................................................11

Outstanding concerns........................................................................................... 12

Importance of transition period...............................................................................13

Chapter 3

Recommendations.......................................................................................................15

Proposed amendments............................................................................................. 15

Export Controls Steering Group..............................................................................16

Reporting..................................................................................................................19

Conclusion *final recommendations......................................................................19

Dissenting Report

Australian Greens and Liberal Senators................................................................21

Appendix 1

List of submissions.....................................................................................................23

Appendix 2

Public hearings and witnesses........................................ 25

Friday, 2 March 2012 *Canberra........................................................................... 25

Wednesday, 21 March 2012 *Canberra................................................................26

Appendix 3

Additional information, tabled documents, and answers to questions on notice.....................................................................................................27

Appendix 4

Submission 15 B.........................................................................................................29

Minister for Defence, the Hon Stephen Smith MP * Supplementary Submission .................................................................................... 29

Appendix 5

Submission 21............................................................................................................. 53

Professor Ian Chubb, Chief Scientist of Australia ................................................ 53 V I

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Chapter 1

Terms of the Inquiry

Background to the Defence Trade Controls Bill 2011

1.1 The Defence Trade Controls Bill 2011 (the bill) was introduced into the House of Representatives on 2 November 2011, passed on 21 November 2011 and introduced into the Senate on 22 November 2011. The bill, with its companion bill the Customs Amendment (Military End-Use) Bill 2011 (the customs bill), was referred to the Joint Committee on Foreign Affairs, Defence and Trade.1

1.2 On 10 November 2011, pursuant to the Senate Selection of Bills Committee Report, the provisions of the Defence Trade Controls Bill 2011 were referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 12 April 2012. The reasons for referring the bill were to 'allow further investigation into issues of concern within the defence industry'.1 2 The customs bill was not referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry.

1.3 On 21 November 2011, the Joint Committee made a statement advising that it had agreed not to inquire into the bills in order to avoid duplicating the examination being conducted by the Senate committee.3

1.4 Draft regulations accompanying the bill, the Defence Trade Controls Regulations 2012 (the regulations), were circulated by the Department of Defence (Defence) for industry consultation between 22 December 2011 and

17 February 2012.

Purpose of the bill

1.5 The bill gives effect to the Treaty between the Government of Australia and the Government of the United States of America concerning Defense Trade Cooperation (the treaty). Signed in 2007 by former Prime Minister John Howard and former United States President George W Bush, the treaty was considered by the Australian Joint Standing Committee on Treaties in 2008.4 5 The joint standing committee supported the treaty and recommended that binding treaty action be taken/

1 House of Representatives Selection Committee Report No.38, 3 November 2011, p. 3.

2 Selection of Bills Committee Report No. 16of2011, 10 November 2011, Appendix 2.

3 Statement to the House of Representatives re Customs Amendment (Military End-Use) Bill 2011 and Defence Trade Controls Bill 2011, 21 November 2011.

4 Joint Standing Committee on Treaties Report No. 94, 14 May 2008.

5 Joint Standing Committee on Treaties Report No. 94, 14 May 2008, p. 44.

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1.6 In addition to giving effect to the treaty, the bill also:

" introduces controls on the supply of Defence and Strategic Goods List technology and services related to Defence Strategic Goods List (DSGL) technology and goods;

" creates a registration and permit regime for the brokering of DSGL goods, technology and related services; and

" introduces a number of new criminal offences to enforce the new

provisions.

Conduct of the inquiry

1.7 Initially, the committee received 11 submissions, including one confidential submission. All submissions except the confidential submission are listed at Appendix 1 and published on the committee's website. In order to examine concerns raised in the submissions, the committee held public hearings on 2 and

21 March 2012. Witnesses who appeared at the hearings are listed at Appendix 2.

1.8 Based on a number of submissions and evidence received at the public hearings, the committee became aware that consultation undertaken by Defence on the proposed legislation was seriously deficient and that as a result Defence was in the dark about likely unintended consequences.6 The committee asked Defence to work with Universities Australia and representatives from the University of Sydney to develop a solution to the problems created by the strengthened export control provisions in the bill. To allow adequate time for consultation to occur, and for the committee to consider its progress, the committee sought and was granted an extension to its reporting date to 15 August 2012. The committee asked Defence and Universities Australia to provide feedback about the consultation process by 30 May 2012.

1.9 Concerned about the obvious shortcomings in Defence's consultation process, the committee also approached other academic and research organisations to seek their submissions in regard to the effect of the bill on their work. Nine submissions and eight supplementary submissions have since been received.

1.10 Defence commenced consultation in earnest with the Australian research sector about the proposed legislation during March 2012. The process continued and on 21 June 2012 Defence informed the committee that it had met with Universities Australia and agreed to develop principles and options for further consultation and discussion with the university and research sectors. A submission from the Department of Industry, Innovation, Science, Research and Tertiary Education (DIISRTE) dated 2 July 2012 suggested that the consultation process had some way to go before all parties could reach agreement on a solution.

6 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Trade Controls Bill 2011 [Provisions], Preliminary Report, paragraphs 4.1-4.4, 4.11-4.15.

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1.11 Unfortunately, as detailed in length in the committee's preliminary report, the parties could not reach agreement on a preferred option.7 Defence's submission to the committee on 8 August 2012 and Universities Australia's submission on

10 August 2012 both advised the committee that the consultation process had failed to produce a workable compromise.

Preliminary report

1.12 After considering the evidence, submissions and reports on the consultation process, the committee reached the conclusion that the bill should not proceed. While the committee was conscious of the importance of the legislation, it felt that it was equally important to be certain that the strengthened export control regime would have no unintended or unnecessary adverse consequences for the university and research sectors.

1.13 Taking into account the uncertainty surrounding the bill as drafted, the committee decided to present a preliminary report. This measure was intended to underscore the problems raised by the university and research sectors, allow Defence more time to give close consideration to the issues and to consult further if necessary, especially with the research sector. The preliminary report detailed the committee's concerns, particularly with regard to the need for further consultation. In its preliminary report, the committee urged Defence to undertake further consultation with the university and research sectors.8

1.14 The committee endorsed the roundtable approach proposed by Universities Australia and recommended that Defence participate in roundtable discussions involving key stakeholders convened by Universities Australia and chaired by the Chief Scientist, Professor Ian Chubb. The committee also recommended that:

...further consultation be conducted by Defence with key stakeholders, until the issues raised can be resolved to the satisfaction of all parties. Further, the committee recommends that consultation be conducted in an open and transparent manner, and sufficient time allowed for key stakeholders to consider the complex issues and respond.

The committee further recommends that, in designing the implementation of the strengthened export controls, Defence create an advisory group of key stakeholders which must have input into each part of the process. Key stakeholders in the group should include, but not be limited to: DIISRTE, the Department of Health and Ageing, NHMRC, Universities Australia, and

the Chief Scientist of Australia.9

7 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Trade Controls Bill 2011 [Provisions], Preliminary Report, paragraphs 4.17-4.26.

8 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Trade Controls Bill 2011 [Provisions], Preliminary Report, paragraphs 4.27-4.28.

9 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Trade Controls Bill 2011 [Provisions], Preliminaiy Report, paragraphs 4.27-4.28.

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1.15 At that time, the committee was encouraged by all stakeholders' support for the legislation and optimistic that their willingness to work cooperatively would produce a mutually satisfactory solution.

Final report

1.16 On 17 August 2012, soon after the committee had tabled its preliminary report, the Minister for Defence, the Hon Stephen Smith MP (the minister), announced that Mr Ken Peacock AM10 11 and Chief Defence Scientist,

Dr Alex Zelinsky, had been appointed to conduct further consultations on the bill. They held talks with key university and research sector stakeholders, the Chief Scientist and the DIISRTE.11

1.17 The committee understands that the report prepared by Mr Peacock and Dr Zelinsky formed the basis for two roundtable discussions between Defence and the university and research sectors on 6 and 21 September 2012. The roundtables were convened by the Chief Scientist of Australia, Professor Ian Chubb.

1.18 The outcomes of the roundtable process, including proposed amendments, and the committee's recommendations, are discussed in the following chapters.

ITAR reform

1.19 In its preliminary report, the committee noted that it was aware that the US Government was currently undertaking reforms to its International Traffic in Arms Regulations (ITAR) that could have a direct bearing on the operation of some provisions in the bill.

1.20 Since tabling its preliminary report, the committee has received assurances from the minister and the US Ambassador, His Excellency Mr Jeffrey Bleich,12 that ITAR reform currently being undertake in the US would not affect the provisions of the treaty. The minister advised the committee:

Regardless of when the various US export control reform initiatives do occur, the Treaty will continue to mean:

10 'Mr Peacock chaired the Defence Trade Cooperation Treaty Industry Advisory Panel that supported the development of the Bill. He is a former Member of Council at the Australian War Memorial and former Executive Chairman, Boeing Australia Limited.' The Hon Stephen Smith MP, Minister for Defence; the Hon Jason Clare MP, Minister for Defence Materiel; the Hon Warren Snowdon, Minister for Defence Science and Personnel, 'Joint Media Release * Government to consult on strengthening Australia's defence export controls *, Media Release, 17 August 2012.

11 The Hon Stephen Smith MP, Minister for Defence; the Hon Jason Clare MP, Minister for Defence Materiel; the Hon Warren Snowdon, Minister for Defence Science and Personnel, 'Joint Media Release * Government to consult on strengthening Australia's defence export controls', Media Release, 17 August 2012.

12 US Ambassador, Mr Jeffrey Bleich, Submission 8A , pp. 1-2.

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" Reduced delivery time for new defence projects;

" Improved sustainment, by permitting transfers within the Approved Community without further Australian or US approvals;

" Improved business opportunities, by permitting Australian and US companies to share technical data without licences; and

" Greater opportunities for Australian companies to participate in US contracts.13

1.21 The minister noted further that Defence was working closely with the US Department of State Treaty Management Board to ensure the Treaty incorporates the benefits of US export control reform.14 15 According to the minister, both Australia and the US were committed to ensuring that by joining the Approved Community members would continue to enjoy benefits. Furthermore, he indicated that the Approved Community operating within the treaty framework would remain attractive over existing control authorisations, including in the context of the reforms underway. He informed the committee that Defence had received a commitment from the US Department of State that the treaty 'will always remain beneficial over the ITAR licence regime'.13

Acknowledgements

1.22 The committee thanks all those who assisted with the inquiry. It especially acknowledges the contribution of the Chief Scientist, Chief Defence Scientist and the participants in the roundtables who, in good faith, worked hard to reach agreement. The committee hopes that the cooperation which has led to this solution can continue throughout the implementation of the strengthened export controls.

13 The Hon Stephen Smith MP, Minister for Defence, Submission 15C, p. 1.

14 The Hon Stephen Smith MP, Minister for Defence, Submission 15C, p. 2.

15 The Hon Stephen Smith MP, Minister for Defence, Submission 15C, p. 2.

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Chapter 2

Consultations and proposed amendments

2.1 On 17 August 2012, the Minister for Defence, the Hon Stephen Smith MP (the minister), issued a media release thanking the committee for its preliminary report on the bill. The minister announced that he had appointed Mr Ken Peacock AM and the Chief Defence Scientist, Dr Alex Zelinksy, to conduct further consultations on the

bill.1

2.2 After consulting with key stakeholders, Mr Peacock and Dr Zelinksy prepared a report outlining possible amendments to the bill and implementation options. They also presented issues raised during the consultation and proposed possible solutions in order 'to stimulate discussion and feedback'.1 2 In their report, they noted that as a result of consultations commenced in February 2012 several changes had been proposed to

the legislation, the most significant involved:

" removing the control of 'defence services', which would have regulated a broader range of teaching and research activities;

" removing controls on transfers inside Australia, which would have regulated all transfers to foreign students and employees in Australia;

" removing controls for Australians located overseas who supply technology; and

" including exemptions for 'in the public domain' and 'basic scientific research' in the Bill if possible.3

2.3 The report also noted that Defence proposed to recommend to government additional amendments to the bill such as establishing a 12-24 month transition period for strengthened export controls after passage of the legislation. Other recommendations included establishing an advisory group to advise government on

implementation issues during the transition period and conducting a comprehensive pilot program during this period.

2.4 On 13 September 2012, the minister wrote to the committee providing a copy of the report. He indicated that:

The Government in-principle supports the proposals in the report, with the exception that the Bill not be returned to Parliament until re-drafting of the

1 The Hon Stephen Smith MP, Minister for Defence; the Hon Jason Clare MP, Minister for Defence Materiel; the Hon Warren Snowdon, Minister for Defence Science and Personnel, 'Joint Media Release *Government to consult on strengthening Australia's defence export controls', Media Release, 17 August 2012.

2 The Hon Stephen Smith MP, Minister for Defence, Submission J5B, p. 11.

3 The Hon Stephen Smith MP, Minister for Defence, Submission 15B , p. 9.

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Regulations is completed...The Government will continue to engage with stakeholders throughout the implementation process, including with regard to Regulations.4 5

2.5 Mr Peacock and Dr Zelinksy's report was to serve as a consultation paper for discussion with the university and research sectors on proposed further amendments to the bill.3

Roundtables

2.6 Recommendation 6 of the committee's preliminary report supported Universities Australia's proposal for a roundtable to be conducted to allow all stakeholders to discuss openly amendments to the bill.6 This recommendation was subsequently taken up. At this stage it should be noted that the main concern, as described by Universities Australia, was that:

...a Bill designed to support and reduce administrative burden on defence trade has the potential to substantially increase the regulatory burden on a range of civilian innovation activities, with an as yet unknown effect on research in health, agriculture, mining, manufacture and trade.7

2.7 The University of Sydney, Universities Australia, and the Chief Scientist informed the committee that two roundtables, convened by the Chief Scientist, Professor Ian Chubb, were conducted with all stakeholders and Defence. They were held on 6 September and 21 September 2012. The roundtable participants included Dr Zelinsky and representatives from Universities Australia, the University of Sydney, the Academy of Technological Sciences, Australian Academy of Science, the Cooperative Research Centres Association, Department of Defence, DIISRTE and a number of other relevant Commonwealth agencies.

2.8 On 28 September, Professor Chubb wrote to the committee about the

roundtable process. He described the discussions as fruitful and informed the committee that the parties had reached 'an agreed path forward'.8 Professor Chubb noted that some representatives from the university sector still held reservations about the timing of the legislation. He was confident, however, that the approach agreed between all stakeholders would be a workable solution:

It has been noted by some representatives of the university sector that in their view a pilot study should precede the enacting of the legislation, not follow it, to enable results from the pilot to inform the final legislation. In my view, the current proposal involving exemptions, legislation with

4 The Hon Stephen Smith MP, Minister for Defence, Submission 15B, p. 3.

5 The Hon Stephen Smith MP, Minister for Defence, Submission 15B, p. 5.

6 Recommendation 6 *Preliminary Report, p. 34.

7 Universities Australia, Submission 11B, p. 3.

8 Professor Ian Chubb, Australian Chief Scientist, Submission 21, p. 1.

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provisions for a transition period, a pilot and a Steering Group with its final advice tabled by Ministers is quite workable. If issues with the Bill are identified through the pilot, the legislation can be amended at a later stage to address these issues. The Steering Group may also recommend to the Ministers that the transition period be extended.9

Outcome of the roundtable discussions

2.9 As noted above, Professor Chubb advised the committee that he was satisfied that a workable solution had been reached through the roundtable process.

In my view, the amended Bill is a significant improvement on the original, addressing key concerns initially identified by the sector. It does give institutions a very substantial role in managing the process. The inclusion of

the transition period, pilot study, and the Steering Group should alleviate many of the sector's concerns and act to help minimise any administrative impacts over time.10 11

2.10 In his correspondence to the committee, Professor Chubb provided a copy of the list of agreed outcomes from the roundtable discussions.11 They were:

" Establish the Strengthened Export Controls Steering Group, reporting to the Minister for Defence and the Minister for Tertiary Education, Skills, Science and Research (the Ministers).

" A transition period of at least 24 months with no offence provisions in effect. The Steering Group may recommend an extension to this non≠ offence provision transition period.

" A pilot program (not limited to a single pilot) to test the regulatory impact of the regime.

o The pilot to determine the costs and benefits associated with the regime, the feasibility of its implementation, the processes and interaction required to successfully implement the bill during the transition period, and identify any aspects that require modification prior to the offence provisions coming into full effect.

o The framework for the pilot to be agreed by the Steering Group and, pending consideration of the Steering Group, will span two grant funding cycles with interim reporting to identify improvements.

o The pilot will review mechanisms by which organisations can determine thresholds for technologies assessments beyond which an organisation will consult with Defence and, if required, seek a permit.

9 Professor Ian Chubb, Australian Chief Scientist, Submission 21, p. 2.

10 Professor Ian Chubb, Australian Chief Scientist, Submission 21, p. 2.

11 Professor Ian Chubb, Australian Chief Scientist, Submission 21, pp. 3^4.

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" Internal institutional practices and structures (including a supplement to the Australian Code for the Responsible Conduct of Research) to be developed to reduce the need to interact with Government agencies on the legislative regime.

" The Model to be tested as part of the pilot will consist of an export control regime that:

o Begins with an institutional assessment process for open academically based research in accordance with guidelines incorporated into the supplement to the Australian Code for the Responsible Conduct of Research. This step recognises that not all activities to supply technology to 'develop', 'produce', or in comes cases 'use', an item on the DSGL will involve the level of detail which is peculiarly responsible for achieving or extending the controlled performance levels, characteristics or functions of the DSGL listed item. The institutions involved in activities of this type must have processes for assessing technology and for determining when advice is to be sought from Defence about a possible permit in accordance with established guidelines.

o Provides exemptions from export controls for research, where:

- The activity is 'basic scientific research', as defined in the DSGL and Wassenar Arrangements (Experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective).

- The technology is already 'in the public domain', as defined in the DSGL (technology or software which has been made available without further restrictions upon its further dissemination (copyright restrictions do not remove technology or software from being in the public

domain))

o Provides exemptions for transfers of technologies within Australia's domestic borders.12

2.11 Participants in the roundtable discussions agreed that the following be incorporated into the bill:

" Modification, if necessary, once the results of the pilot studies are known.

" A non-offence transition period of no less than 24 months, and with the possibility of an extension on the recommendations of the Steering Group.

" Pilot studies governed by the Steering Group.

12 Professor Ian Chubb, Australian Chief Scientist, Submission 21, pp. 3-4.

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" Pilot studies to test the outcomes from the Model.

" A formal evaluation against agreed criteria to include outcomes of pilot studies.

" A final report from the Steering Group to be submitted to the

Ministers to be tabled in Parliament.

" Ordinary scientific communication is permissible, where the institution and individual have complied with established guidelines which include the institutional assessment model outlined above.

" The provisions relating to Defence Services are deleted.

" Controls on foreign employees and students in Australia are removed.

" Controls on Australians overseas are removed.13

2.12 The committee notes that in his submission of 13 September 2012, the minister advised that the government in-principle supports the proposals in Mr Peacock and Dr Zelinksy's report14, which included exemptions for 'in the public domain' and 'basic scientific research'. *5 The Chief Scientist lists amongst the key developments agreed at the roundtable 'exemptions for basic scientific research and

for information already in the public domain'.16

Response by the university sector

2.13 On 4 October 2012, the committee received a supplementary submission from the University of Sydney regarding their concerns about the amendments and implementation arrangements discussed during the roundtables.

Professor Jill Trewhella wrote that:

Regrettably, notwithstanding the welcome but largely procedural improvements that have been achieved in a very short timeframe through the roundtable discussions facilitated by the Chief Scientist in September, our key concerns remain largely unchanged...The only comfort provided to the sector from the roundtable process is a commitment to address the unintended consequences of the legislation by extraordinary post legislation

procedural concessions...17

2.14 The University of Sydney noted that during the roundtable discussions a difference of opinion arose between Defence and the university sector regarding the scope of export controls as they apply to US universities. Endeavouring to understand

the scope of the export control regimes applying to researchers in the US, the

13 Professor Ian Chubb, Australian Chief Scientist, Submission 21, p. 4.

14 The Hon Stephen Smith MP, Minister for Defence, Submission 15B, p. 3.

15 The Hon Stephen Smith MP, Minister for Defence, Submission 15B, p. 5.

16 Professor Ian Chubb, Australian Chief Scientist, Submission 21, p. 1.

17 University of Sydney, Submission 7B, p. 1.

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university sought independent advice from a law firm in Washington. The university suggested that the committee consider the scope of the proposed exemptions for research in the bill in the context of the exemptions provided for research under US law. It was seeking to bring the Australian legislation into alignment with the US system of export controls which would 'also serve to streamline the currently proposed complex post legislation requirement'.18 Sydney University recommended that the bill be amended sufficiently:

...to ensure that the resulting control regime is no broader in scope or more stringent than the arrangements in place for fundamental research in accredited institutions of higher learning in the US.19

2.15 The University of Sydney was of the view that this proposition had broad support.20

2.16 The committee considers the request of the University of Sydney to be fair and reasonable: the effect of the bill should not place Australian universities and research organisations at a disadvantage compared to their counterparts in the US.

2.17 Universities Australia also identified the coverage of the legislation as a substantial concern. It was concerned particularly about:

...the risk that the Australian legislation imposes, or is interpreted so as to impose, greater restrictions on Australian universities and researchers than are applied in the United States.21

2.18 In its view, Australian researchers 'should be subject to similar but not more severe regulatory constraints than their US counterparts'. For Universities Australia this matter was one requiring 'priority attention'.22

2.19 The committee understands the universities' call for the bill to take account of the legislation governing similar institutions in the US and supports their stand that Australian legislation should not impose heavier burdens. In this regard, the committee suggests that the government be guided by this principle when drafting amendments to the bill.

Outstanding concerns

2.20 Universities Australia noted that the roundtable process had addressed many of the concerns raised by the universities and that they supported amendments to the bill which reflect the agreed outcomes of the roundtable. It advised the committee,

18 University of Sydney, Submission 7B, p. 1.

19 University of Sydney, Submission 7B, p. 2.

20 University of Sydney, Submission 7B, p. 1.

21 Universities Australia, Submission 1 IB, p. 6.

22 Universities Australia, Submission 11B, p. 7.

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however, that the sector had some remaining concerns about the impact of the legislation. The outstanding issues include:23

" that the scope of the legislation provides greater restrictions on research activity than similar legislation in the US;

" effect of the bill on 'Freedom of inquiry';

" development of self-assessment processes;

" publication of research and criminal penalties in the bill;

" additional risks and costs incurred as the new regime is implemented; and

" effect on Australia's ongoing engagement in international research.

2.21 The committee notes that many of these unresolved issues will be tested in the 24 month pilot program contained in the list of agreed outcomes from the round table. The committee relies upon Defence to commit to and implement expeditiously any amendments which are proposed from the pilot program.

2.22 The committee notes the pilot program will be complex, and will result in proposals to amend the bill. The committee believes it would be premature for any government amendments to the bill in 2012 to be made contrary to any agreements

reached during the roundtable.

Importance of transition period

2.23 Clearly, Universities Australia still holds significant concerns about the effect of the legislation as currently framed on Australia's research capacity, and the social and economic benefits that flow from it. Even so, it was of the view that should the bill proceed, it would support the incorporation of amendments that 'fully and accurately reflect the outcomes of the roundtable discussions' as a means of 'mitigating, at least partially, the risks to Australian research posed by the scheme'.24 It recommended that:

...should Parliament pass amended legislation, the minimum two year transition period must enable outstanding concerns to be examined and addressed prior to the full impact of the legislation coming into effect.25

2.24 It should be noted that Universities Australia stressed that outstanding concerns not addressed during the roundtable process 'must be dealt with substantively in the trial phase and under the auspices of the Steering Group'.26 Universities Australia highlighted the central importance of the transition period:

23 Universities Australia, Submission 11B, pp. 6-8.

24 Universities Australia, Submission 11B, p. 2.

25 Universities Australia, Submission 11B, p. 4.

26 Universities Australia, Submission 11B, p. 5.

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It is critical, therefore, that the proposed minimum two year transition period is enacted and facilitates a thorough and robust assessment of the impact of the legislation on defence trade, the effectiveness and efficiency of the control regime, and also the conduct and output of Australian research.27

2.25 The committee fully endorses this view.

27 Universities Australia, Submission 11B, p. 5.

Chapter 3

Recommendations

Proposed amendments

3.1 The committee understands that it is the government's intention to introduce amendments to the bill which incorporate the outcomes from the roundtable discussions. The committee understands the effort that went into the agreements reached during the roundtable process and wants to underline some of the key recommendations. It is essential that the government and Defence honour the agreements with a firm undertaking in the legislation; this will be essential to the future relationship with the university and research sector, and other commonwealth departments which is needed for implementation. The committee therefore recommends that the bill incorporate or allow for:

" modification, if necessary, once the results of the pilot studies are known.

" a non-offence transition period of no less than 24 months, and with the possibility of an extension on the recommendations of the Steering Group.

" pilot studies governed by the Steering Group.

" pilot studies to test outcomes from the Model.

" a formal evaluation against agreed criteria to include outcomes of pilot studies.

" a final report from the Steering Group to be submitted to the

Ministers to be tabled in Parliament.

" ordinary scientific communication is permissible, where the institution and individual have complied with established guidelines which include the institutional assessment model outlined above.

" the provisions relating to Defence Services are deleted.

" controls on foreign employees and students in Australia are removed.

" controls on Australians overseas are removed.1

3.2 The committee notes in particular the agreements reached during the roundtable discussions to:

" establish the Strengthened Export Control Steering Group;

" have a transition period of at least 24 months with no offence provisions in effect;

1 Professor Ian Chubb, Australian Chief Scientist, Submission 21, p. 3.

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" have exemptions for basic scientific research and for information already in the public domain; and

" test the given model as part of a pilot program.2

3.3 The committee believes that it would devalue the hard work put into the consultation process, and damage the important relationship between Defence and its stakeholders, if the above agreements were not incorporated in government amendments to the bill.

Export Controls Steering Group

3.4 The committee believes that the Export Controls Steering Group (ECSG) has a vital role in the design of the implementation process for the provisions of the bill and wants to ensure that the ECSG will have both the representation and the authority to provide timely and informed advice to the ministers and to Parliament. The committee notes that during the second roundtable, draft terms of reference were circulated and approved and recommends these be incorporated in the bill under amendments establishing the ECSG. The terms of reference are as follows:

The Steering Group *s function is to provide advice to the Department of Defence and Minister for Defence, and the Minister for Tertiary Education, Skills, Science and Research (the Ministers) throughout the transition period of the Defence Trade Controls Act in relation to:

- the adequacy of organisational and government arrangements to identify, assess and manage risks, costs and administrative burden associated with intangible transfers of DSGL technologies;

- oversight, design and delivery of a pilot program to identify the adequacy of the legislation, regulations, implementation arrangements and resources for regulating intangible transfers;

- recommendations on amendments to legislation, regulations and implementing arrangements.

In order to fulfil its role, the Steering Group will:

(a) consider quarterly progress reports from participants in the pilot on implementation of the strengthened export controls;

(b) through the Chair, report to the Ministers every six months; and

(c) if required by the Ministers, provide additional reporting.

The Steering Group will advise the Department of Defence on how to obtain appropriate technical expertise regarding Australian Government consideration of the control lists of international regimes and the Australian DSGL.

The Steering Group may establish sub-groups, as required, to support its function. Subgroups will report back to the Steering Group.

2 Professor Ian Chubb, Australian Chief Scientist, Submission 21, p. 2.

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Membership

The Steering Group membership will comprise:

- Australia *s Chief Scientist as the Chair; up to four representatives from the industiy sector, one of whom is the co-Deputy Chair;

- two representatives from the university/research sectors, one of whom is the co-Deputy Chair;

- the CEO of the National Health and Medical Research Council, or representative nominated by that CEO;

- the CEO of the Australian Research Council, or representative nominated by that CEO;

- a representative from the Department of Industiy, Innovation, Science, Research and Tertiary Education; and

- a representative from the Department of Defence.

There will be no substitutions or additional attendees unless agreed with the Chair.

The Steering Group will be established for the period of the transition period but the period may be extended if agreed by the Ministers.

Reporting

The Chair will report six monthly, in writing, to the Ministers and the Department of Defence, including any dissenting membership views.

The Steering Group will provide a final report, in writing, at the conclusion of the two year transition period to the Ministers. The Ministers will jointly table this report in the Parliament.

Meetings

The frequency and timing of meetings of the Steering Group is at the discretion of the Chair, however it is expected to meet at least quarterly, supplemented by out of session consideration of matters as necessary.

A quorum of the Steering Group will be met when there are a minimum of the Chair, two public sector representatives, one industiy representative and one university/research representative.

Secretariat

The Steering Group will be supported by a Secretariat provided by the Defence Export Control Office.

The Secretariat will:

(a) prepare and circulate agendas in conjunction with the Chair;

(b) work with the authors of agenda papers to ensure quality and

timeliness;

(c) ensure that the agenda approved by the Chair and papers are received by members at least one week before each meeting;

(d) prepare and provide to the Chair, within one week of the meeting, the minutes, outcomes and actions arising;

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(e) circulate the meeting outcomes to all members following clearance by the Chair; and

(f) maintain Steering Group records.3

3.5 The committee notes that a model is to be used as part of the pilot program to test the regulatory impact of the regime. The committee recommends that the pilot program and the model to be adopted for the test are as set out in the agreed outcomes from the roundtable.4

3.6 The committee takes this opportunity to emphasise that amendments to the bill must fully and accurately reflect the outcomes of the roundtable discussions. This principle must also apply to regulations made under this legislation.

3.7 As noted in previous chapters, the committee drew attention to

recommendations made in the committee's preliminary report. They are given below in full.

Recommendation 1 (preliminary report): The committee recommends that the government consider including in the bill the criteria provided in the explanatory memorandum in relation to permits issued under clause 11 so that the Parliament can scrutinise them properly and potential applicants can be clear as to the criteria that will be used to

assess their applications.5

Recommendation 2 (preliminary report): In consultation with all relevant sectors, the committee recommends that Defence provide examples to illustrate the scope of the definition of 'intangibles' and 'intangible transfer' in the explanatory memorandum.6

Recommendation 3 (preliminary report): The committee recommends that Defence include the definition of 'arrange' in the bill, and that in defining the term Defence consult with submitters who have raised issues regarding the scope of the term.7

Recommendation 5 (preliminary report): The committee recommends that Defence undertake consultation with industry in order to eliminate unnecessary record-keeping.8

3 Universities Australia, Submission 11B, Appendix II, pp. 12-14.

4 Professor Ian Chubb, Australian Chief Scientist, Submission 21, pp. 3-4.

5 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Trade Controls Bill 2011 [Provisions], Preliminary Report, paragraph 2.13.

6 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Trade Controls Bill 2011 [Provisions], Preliminary Report, paragraph 2.21.

7 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Trade Controls Bill 2011 [Provisions], Preliminary Report, paragraph 2.29.

8 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Trade Controls Bill 2011 [Provisions], Preliminary Report, paragraph 3.32.

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Recommendation 7 (preliminary report): The regulations are an important part of the implementation of the strengthened export controls. Defence has proposed that the regulations will be amended in line with any amendments made to the bill. The committee

recommends that the regulations form an integral part of the consultation process.9

Reporting

3.8 The committee believes that an important part of the ECSG's work will be the vital contribution that the pilot program provides to the development of the implementation of provisions in the bill. While the committee hopes that the good will

demonstrated during the roundtable discussions will continue, the committee is mindful of the concerns expressed by the University of Sydney and Universities Australia regarding the outstanding issues to be resolved. The committee sees

significant benefits in its oversight continuing after its final report has been tabled.

Recommendation 1

3.9 The committee refers to its previous recommendation 810, and asks that the regular reports of the ECSG provided to the minister also be provided to the committee.

Recommendation 2

3.10 In light of the ongoing concerns held by stakeholders, the committee believes that implementation of the bill would benefit from further scrutiny. The committee therefore recommends that during the 24 month transition period, the Senate Foreign Affairs, Defence and Trade Legislation Committee conduct a six-monthly examination of progress of the implementation of the provisions of the bill and report to the Senate.

Conclusion *final recommendations

3.11 Committee recognises the importance of the strengthened export controls regime in the bill. The committee appreciates the cooperation of all parties involved in the consultation processes.

Recommendation 3

3.12 Given the advice detailed in this final report, the committee recommends that the bill, with the proposed amendments outlined in this report, should

9 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Trade Controls Bill 2011 [Provisions], Preliminary Report, paragraph 4.29.

10 Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Trade Controls Bill 2011 [Provisions], Preliminary Report, paragraph 5.14.

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proceed to debate in the Senate. The committee recommends that the bill, amended as outlined in this report, be passed.

Recommendation 4

3.13 The committee further recommends that Defence use the implementation process for the provisions of the Defence Trade Controls Bill to foster closer links with the research and university sectors and with the Department of Industry, Innovation, Science, Research and Tertiary Education and other relevant departments.

Senator the Hon Ursula Stephens Chair

26

Dissenting Report

Australian Greens and Liberal Senators

1.1 The Defence Trade Control Bill 2011 is a complex and flawed piece of legislation that should not be rushed through the Parliament.

1.2 The Committee is tabling this report a full 20 days earlier than requested by the Senate. The government has not allowed the Committee time to review the government's amendments, which at the time of submission of this report, had not been sighted by any members of this committee. The Committee has not been given time to consult further with stakeholders and to examine legal advice received from a Washington DC-based law firm that submits Australian academic institutions will be subject to a more stringent control regime with a much broader scope than is the case in the US.

1.3 As this report notes, numerous recommendations made in its Preliminary Report are yet to be implemented. The Committee also notes that consultation efforts undertaken by Defence on this Bill were 'seriously deficient', resulting in unintended consequences for the university sector. Much of the consultation process ensued without participants having access to the proposed amendments to the Bill.

1.4 The Committee's Preliminary Report indicated that, "When the proposed legislation is no longer a work-in-progress, the committee's intention is then to reconsider the provisions of the bill, including any amendments proposed by the government, and present a final report to the Senate."

1.5 Without doubt, the Bill remains a work in progress.

Recommendation 1

1.6 The Committee undertake a further inquiry into the government's amendments to the bill, to ensure that serious concerns raised throughout the inquiry have been addressed, and that until this has occurred, the bill should not be debated.

Alan Eggleston (Deputy Chair) Scott Ludlam

Liberal Senator for WA Greens Senator for WA

David Fawcett Liberal Senator for SA

The Hon David Johnston Liberal Senator for WA

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Appendix 1

List of submissions

1 Defence Teaming Centre 2 Confidential

3 US Trade and Export Control Services 4 Australian Manufacturing Workers' Union (AMWU) 5 Saab Systems Pty Ltd

6 Boeing Australia and South Pacific

7 The University of Sydney 7A Supplementary Submission 7B Supplementary Submission

8 Ambassador of the United States of America 8A Supplementary Submission

9 NewSat Ltd

10 Australian Industry Group

11 Universities Australia Covering Letter 11A Supplementary Submission 1 IB Supplementary Submission

12 National Health and Medical Research Council (NHMRC) 12A Supplementary Submission 13 Australian Research Council

14 Minister for Education, Training and Employment, the Hon John-Paul Langbroek MP, Queensland Government

15 Minister for Defence, the Hon. Stephen Smith MP 15 A Department of Defence - Supplementary Submission 15B The Hon Stephen Smith MP Supplementary Submission 15C The Hon Stephen Smith MP Supplementary Submission

16 Department of Industry, Innovation, Science, Research and Tertiary Education

17 Cooperative Research Centres Association 17A Supplementary Submission

18 National Tertiary Education Industry Union

19 The University of New South Wales

20 Hunter Hill Branch, ALP

21 Professor Ian Chubb, Chief Scientist of Australia

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Public hearings and witnesses

Friday, 2 March 2012 *Canberra

BEECHER, Ms Glenda, Universities Australia (Monash University)

CUNLIFFE, Mr Mark, Head, Defence Legal, Department of Defence

CURTOTTI, Mr Michael, Universities Australia (Australian National University)

GIULINN, Mr Andrew, Contracts Manager, Saab Systems Pty Ltd

KENNEALLY, Mr Michael, Vice President Satellite Strategy, NewSat Limited

KINNEAR, Dr Pamela, Deputy Chief Executive, Universities Australia

KIRKWOOD, Mr Angus, Assistant Secretary Export and Arms Control, Strategic Policy Division, Department of Defence

O'CALLAGHAN, Mr John, Executive Officer, Australian Industry Group Defence Council

SHOEBRIDGE, Mr Michael, First Assistant Secretary Strategic Policy, Strategic Policy Division, Department of Defence

SILSBURY, Ms Elissa, Business Analyst, NewSat Limited

WALKER, Ms Rebecca, Senior Advisor, Australian Industry Group Defence Council

Appendix 2

26

Wednesday, 21 March 2012 * Canberra

ASPLUND, Mr Mark, Regional Counsel, Boeing Australia Holdings Pty Ltd

BIERCUK, Dr Michael, University of Sydney

CANNING, Professor John, University of Sydney

KIRKWOOD, Mr Angus, Assistant Secretary Export and Arms Control, Strategic Policy Division, Department of Defence

MANN, Professor Graham, University of Sydney

PAYNE, Mr Timothy, University of Sydney

REUER, Ms Stephanie, Director, Global Trade Controls, The Boeing Company

SHOEBRIDGE, Mr Michael, First Assistant Secretary Strategic Policy, Strategic Policy Division, Department of Defence

THOMAS, Dr Ian, President, Boeing Australia and South Pacific

TREWHELLA, Professor Jill, Deputy Vice-Chancellor, University of Sydney

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Additional information, tabled documents, and answers to questions on notice

Appendix 3

1. Universities Australia - Answers to questions on notice (from public hearing, 2 March 2012, Canberra)

2. Saab Systems Pty Ltd - Answers to questions on notice (from public hearing, 2 March 2012, Canberra)

3. NewSat Limited - Answers to questions on notice (from public hearing, 2 March 2012, Canberra)

4. Boeing Australia and South Pacific - Answers to questions on notice (from public hearing, 21 March 2012, Canberra)

5. Department of Defence - Answers to questions on notice (from public hearings, 2 and 21 March 2012, Canberra)

6. Department of Defence - Answers to written questions on notice

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Appendix 4

FOREIGN AFFAIRS, DEFENCE AND TRADE

LEGISLATION COMMITTEE

Defence Trade Controls Bill 2011

SUBMISSION

SUBMISSION NUMBER: 15B

SUBMITTER

The Hon. Stephen Smith MP 15B Supplementary Submission

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Stephen Smith MP Minister for Defence

1 3 SEP 2012

Senator the Hon Ursula Stephens Chair Foreign Affairs, Defence and Trade Legislation Committee Parliament House CANBERRA ACT 2600

Thank you for your letter of 23 August 2012 concerning the Inquiry into the provisions of the Defence Trade Controls Bill 2011 by the Foreign Affairs, Defence and Trade Legislation Committee.

The Defence Trade Controls Bill 2011 gives effect to the Australia-United States Defense Trade Cooperation Treaty, which was signed on 5 September 2007. The US Senate passed the Resolution of Ratification for the Treaty on 29 September 2010.

Following the release of the Preliminary Report by the Committee, I appointed Mr Ken Peacock and Dr Alex Zelinsky to conduct further consultations on the Bill,

Mr Peacock and Dr Zelinsky have held consultations with key University and research sector stakeholders, the Chief Scientist and the Department of industry, Innovation, Science, Research and Tertiary Education.

Mr Peacock and Dr Zelinsky have prepared a report on these further consultations, which outlines the following new proposals:

" A transition period of 12 to 24 months for industry (particularly Specialist Military Equipment), Universities and the research sector to adopt the Strengthened Export Controls and to allow Defence to complete its education and training program prior to full implementation of the Bill.

e A pilot program to be conducted during the transition period that would involve a broad range of stakeholders to test and evaluate implementation arrangements (this would complement the 'Pathfinder * program being conducted for the Treaty provisions).

Parliament House, Canberra ACT 2600 Tel: (p ) 6277 7800 Fax: (02) 6273 4118

2

" Defence establish an Advisory Board similar to the Defence Trade Cooperation Treaty Industry Advisory Panel (DIAP) from industry, research, University and Government stakeholders to advise Government on implementation issues during the transition period. Based on the result of pilot studies the Advisory Board may recommend changes to the legislation, regulations or implementing arrangements.

" Use the Advisory Board and engagement with the University and research sectors to inform the annual Wassenaar Arrangement review of the Defence and Strategic Goods List to ensure that this list is up to date. This would take advantage of specialist technical knowledge within the sectors to ensure the Defence and Strategic Goods List keeps up with technical change and advances.

" Defence should allocate additional resources to adequately carry out the necessary stakeholder engagement; including Advisory Board and pilot program set up and management, training, education and assistance required by industry, Universities and research entities during the transition period. This should include stakeholder > feedback for the new IT system supporting implementation of the new processes.

" The Bill should reinforce the principle that all researchers, including those operating under Federal or State jurisdictions, are subject to the same export control regulations.

" The compliance and regulatory regime be refocused from individuals and research groups to the organisational level (company, University, research agency or institution). Organisations would be responsible for implementing compliance schemes that will identify researchers, research projects and research programs that are affected by the legislation. Organisations will apply for permits on behaif of the affected groups and will be responsible for reporting compliance.

" Permits should be granted for specific research programs and projects for extended periods (preferably for the life of the program or grant where risk allows) and not be transactional based, where approvals are sought for every interaction with a collaborating foreign partner.

" The proposed obligation to apply for Permits for publications to be replaced with an offence provision that applies to individuals if they wilfully release controlled information into the public domain.

" The Bill not to be returned to Parliament until re-drafting of the Regulations is completed and reviewed by the DIAP and key stakeholders in the University and research sectors.

" The final draft of the Regulations, Approved Community Manual and other documents relating to membership of the Approved Community, be reviewed by the DIAP to ensure there is consistency in definitions, clarity of intent and sufficient details on implementation. I

I have attached a copy of the Report for your consideration.

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As the report notes, stakeholder consultations conducted by Defence earlier this year had also identified possible changes to the Bill as introduced into the Parliament, including:

" removing the control of *defence services *, which would have regulated a broader range of teaching and research activities.

" removing controls on transfers inside Australia, which would have regulated all transfers to foreign students and employees in Australia.

" removing controls for Australians located overseas who supply technology, which would have required Australians employed in overseas research and industry to obtain a permit to transfer DSGL-listed technologies.

The Government in-principle supports the proposals in the report, with the exception that the Bill not be returned to Parliament until re-drafting of the Regulations is completed. Given the United States ratification process for the Treaty was effected two years ago in September 2010, the Government is of the view that the legislative process should be completed as soon as possible this year. The Government will continue to engage with stakeholders throughout the implementation process, including with regard to Regulations.

As well the Government also looks forward to the further contribution by the roundtable chaired by the Chief Scientist for Australia, Professor Ian Chubb AC.

Professor Chubb conducted a roundtable meeting with stakeholders on 6 September to consider the report prepared by Mr Peacock and Dr Zelinsky. Participants included the University and research sectors, the Department of Defence, the Department of Industry, Innovation, Science, Research and Tertiary Education and other government agencies. Further roundtable meetings will be held on 14 and 21 September.

The Government will also take these consultations into account and will continue to engage with industry and the University and research sectors as the Bill progresses through the legislative process and throughout its implementation.

I would be pleased if your Committee would consider the report prepared by Mr Peacock and Dr Zelinsky, the further contribution of the Chief Scientist, and report to Parliament as soon as possible to enable consideration of the Bill by the Senate and the House of Representatives in October.

Yours sincerely

StepheiTSinith

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Intangible transfer of technology controls

Consultation paper for discussion with the university and research sectors on proposed further amendments to the Defence Trade Controls Bill 2011

Department of Defence in consultation with the Department of Industry, Innovation, Science, Research and Tertiary Education

Last updated 3/09/2012 15:00

This paper has been compiled by the Department of Defence in consultation with the Department of Industry, Innovation, Science, Research and Tertiary Education. Issues and proposed resolutions for discussion presented in this paper are not Australian Government policy and shouid not be represented as such. __________

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Defending Australia and its National Interests

2

Executive Summary

This paper has been developed by the Department of Defence in consultation with the Department of industry, innovation, Science, Research and Tertiary Education (DiiSRTE) for discussion on further amendments to the Defence Trade Controls Bill 2011.

Australia is a strong supporter of international efforts to prevent the proliferation of weapons of mass destruction and is an active member of major international and multilateral arms and export control regimes. To meet its international obligations under the Wassenaar Arrangement - the export control arrangement to which Australia and 40 other countries belong - Australia needs to ensure the responsible transfer of intangible technology that allows people to produce, develop -and in some limited more sensitive cases use- specific military and dual use items on the Defence and Strategic Goods List (DSGL).

The Wassenaar Arrangement:

" Contributes to regional and international security and stability

" Promotes transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies

" Complements and reinforces the existing control regimes for weapons of mass destruction and their delivery systems

" Is not directed against any state or group of states

" Uses export controls as a means to combat terrorism

The Australian Government will remain a participating state in the Wassenaar Arrangement, as has been the case since its formation in 1996.

To ensure consistency in the treatment of tangible items and intangible technology, Australia has decided to adopt the existing legal framework for regulating the export of tangible items, which is also derived from the Wassenaar Arrangement. In implementing these obligations, Government will continue its strong support of research and industry

and, recognising the importance of international engagement, assure Australia's national security by protecting items on the DSGL.

As a condition for ratification of the Australia-US Defense Trade Cooperation Treaty, Australia is required to enact legislation to strengthen its export controls, including intangible transfers of controlled technology.

As a result of stakeholder consultation since February, there have been several proposed changes to the original Bill. Significant changes in the legislative proposal include:

" removing the control of *defence services", which would have regulated a broader range of teaching and research activities;

" removing controls on transfers inside Australia, which would have regulated all transfers to foreign students and employees in Australia;

" removing controls for Australians located overseas who supply technology, which would have required Australians employed in overseas research and industry to obtain a permit to transfer DSGL-listed technologies; and

" including exemptions for *in the public domain * and 'basic scientific research*, in the Bill if possible.

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While the legislative proposal adapts the existing foundation of laws governing export of tangible goods and technologies, it recognises that tills is a new area of regulation for universities, research agencies, the research community and industry. Therefore, in response to further stakeholder consultation, Defence proposes to recommend to

Government the following additional amendments to the Bill:

" Establish a 12-24 month transition period for Strengthened Export Controls after the legislation is passed by Parliament to allow for:

a. a period to provide for education and outreach programs; and undertake a detailed pilot program in conjunction with key stakeholders (selected universities, research agencies and industry (particularly small to medium enterprises)), to assess practical implementation issues and make the necessary changes; and

b. a further period where offences will not be enforceable but permits can be obtained.

" Defence establish an Advisory Group comprising members from university, research, industry and government agency stakeholders to advise government on implementation issues during the transition period. Based on the results of the pilot program, the Advisory Group may recommend changes to the legislation, regulations or implementing arrangements.

" The proposed Advisory Group could also engage with the university and research sectors to inform review of items listed on the DSGL. This would take advantage of specialist technical knowledge within the sectors to help ensure the DSGL keeps up with technical change and advances.

" Conduct a comprehensive pilot program during the transition period. This will involve a wide variety of stakeholders and activities to test and evaluate the implementation of controls and identify any activities that need special consideration.

" Defence will invest and engage in extensive stakeholder engagement; including Advisory Board and pilot program set up and management, training, education, and assistance required by industry, universities and research entities during the transition period. This should include stakeholder feedback for the new IT system supporting implementation of the new processes.

" Ensure that all researchers, including those operating under Federal or State jurisdictions, be subject to the same export control regulations.

" Refocus the Bill *s compliance and regulatory regime from individuals and research groups to the organisational level (company, university, research agency or institution). Organisations would be responsible for implementing compliance schemes that will identify researchers, research projects and research programs that are affected by the legislation. Organisations will apply for permits on behalf of the affected groups and will be responsible for reporting compliance. "

" Propose that publication be addressed by organisational or individual responsibility to ensure that controlled information is not published. An offence for publishing controlled information would be included, to apply if the proposed publication wilfully released controlled information - details on how to

*develop', *produce * or in some cases *use *, the DSGL goods (akin to the practice around publishing classified information). This proposal would eliminate the need for organisations or researchers to obtain permits to publish their research results.

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" Permits should be granted for specific research programs and projects for extended periods (preferably for the life of the program or grant where risk allows) and not be transactionaliy based.

" Develop, in consultation with stakeholders, accessible, searchable "user guides * and DSGL information, targeted specifically at researchers and universities.

in consultation with key stakeholders, there are opportunities for further improvements within the existing framework provided these changes are:

" consistent with Australia *s Wassenaar Arrangement obligations for regulating intangible transfers in the Wassenaar Arrangement's publication Best Practices for Implementing Intangible Transfer of Technology Controls (the Wassenaar Guidance) that were agreed in 2006,

" consistent with the current laws that regulate the transfer of tangible goods and items, through the Customs and WMD Acts, and

e consistently applicable to universities, research organisations and industry.

The amended legislation should reflect the requirement to regulate the intangible supply of DSGL technology or software in a way that minimises the risk that DSGL technology and software could be supplied to would-be proliferators while not introducing unreasonable administrative burden or stifling innovation and collaboration.

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Background

Illicit programs of weapons of mass destruction and proliferation of conventional arms and military equipment pose a significant threat to the safety of all Australians and to regional and global security. Australia, along with the international community of like-minded countries, has decided that we must ensure that we make every effort to deny these people access to the materials and technologies they need to achieve their aims. One way that Australia achieves this aim, is through its export control legislation and regulation.

Export control regulation centres on the legislative instrument called the Defence and Strategic Goods List (DSGL). The DSGL is a list of controlled defence and dual-use goods, software and technology that is compiled from various international proliferation and export control regimes to which Australia belongs - the Wassenaar Arrangement, the Missile Technology Control Regime, the Australia Group, and the Nuclear Suppliers Group. Most like-minded countries have a parallel list of controlled goods, software and technology.

Australia regularly updates the DSGL to reflect the international agreement by the countries which belong to these international regimes. Items are included in the DSGL after the international community members, consisting of specialist scientific and proliferation experts, agree by consensus that, in the wrong hands, the items could

assist with the proliferation of weapons of mass destruction, conventional arms and military equipment. Items are removed from the DSGL when the international community agree that the items no longer present a proliferation threat. As the department responsible for administering the DSGL, Defence prepares a position on each technical proposal considered by the international regimes. Technical advice from relevant experts, both inside and outside of Government, is a welcome and valuable part of that process.

Australia has controlled the tangible export of DSGL items for over 15 years, in 2005, recognising advancements in technology, the Wassenaar Arrangement state parties agreed that member states should also introduce domestic measures to control transfer of intangible technology associated with the DSGL items. They reasoned that to minimise proliferation risk, it was necessary to control both the physical export of goods and the transfer of technology1 that would allow a recipient to reproduce those same

goods indigenously.

It is important that the Department of Defence work with the Australian industry, academic, research and government sectors to raise ongoing awareness of the sensitivity of the items they are using, and meet the controls that will ensure Australia meets its international obligations to combat proliferation.

1 Wassenaar Arrangement Guideline definition of *Technology * is specific information necessary for the *development," *production" or *use * of a product. The information takes the form of technical data or teclmical assistance. Controlled *technology * for the Dual-Use List is defined in the General Technology Note and in the Dual-Use List. Controlled *technology * for the Munitions List is specified in ML22. Technical Notes

1. *Technical data' may take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories. 2. *Technical assistance * may take forms such as instruction, skills, training, working knowledge, consulting services. *Technical assistance * may involved transfer o f *technical data. *

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Policy objectives

The Australian Government is committed to increasing our international engagement and to take advantage of emerging opportunities. Australia has a world class research capability, but as a relatively small nation, it needs to enable international engagement and tap into the other 97% of research undertaken outside Australia.

The Government also needs to introduce controls on the supply of DSGL technologies and software to close the gap in Australia *s export controls and align those controls with the expected best-practices as outlined in the Wassenaar Arrangement's publication Best Practices for Implementing Intangible Transfer of Technology Controls (the Wassenaar Guidance) that were agreed in 2006. Legislation that introduces these guidelines will need to regulate the intangible supply of DSGL technology or software in a way that minimises the risk that DSGL technology and software could be supplied to would-be proliferators while not introducing unreasonable administrative burden or stifling innovation and collaboration.

It is important that Australia meets its international obligations, including those of the Wassenaar Arrangement, and finding the right balance will be critical to ensuring we do not impede opportunities to capitalise on global developments.

Also, Australia is seeking to ratify the Australia-US Defense Trade Cooperation Treaty which requires enacting legislation to strengthen its export controls, including intangible transfers of controlled technology. Although the Treaty requires strengthened export controls, Australia's Wassenaar obligation preceded the signing of the Treaty.

The current legislation

As currently drafted, the Bill requires a permit for every supply from an Australian person to a foreign person inside Australia and for every supply from Australian territory to a foreign person outside Australia. The Bill also requires a permit for the provision of services by any Australian person in relation to any DSGL item or DSGL technology.

Defence *s consultation to date has identified that these controls are broader than required by the Wassenaar Guidance and that this broad scope had introduced unintended consequences for implementation. It is important that these unintended consequences be considered and the legislation be reviewed to minimise the effects of the regulation.

Legislative proposal

Past consultations with the research and academic sectors have seen a range of possible amendments develop, including to:

" remove controls on supplies of technology inside Australia;

" remove controls for Australians located overseas who supply technology;

" apply controls to all supplies of technology from Australia to anyone outside Australia;

" include definitions for *ä*∑ the public domain * and *basic scientific research', in the Bill if possible;

" remove controls on defence services; and

" include an offence for publishing information where it will transfer controlled technology to the public domain (see below).

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7

The definition of 'technology1 couid be amended to match the Wassenaar-agreed definitions that are contained in the DSGL. This includes exemptions for technology that is 'in the public domain * and supplied in the course of *basic scientific research *.

A further possible change is that there be no requirement for a separate control on the provision of services and this could be removed from the legislation.

The Wassenaar Guidance allows member states to decide when an intangible transfer takes place. The Bill could be amended such that there is no need to control technology inside Australia or when technology is supplied by an Australian who is overseas, and that the controls couid be applied at the same point that tangible goods are controlled; i.e. when the intangible technology leaves Australia.

Proposals for discussion

White it adapts the existing foundation of laws governing the export of tangible goods and technologies, it is recognised that this is a new area of regulation for universities, the research sector and industry. Further opportunities to amend the Bill to limit the burden of this regulation are:

" Establish a 12-24 month transition period for Strengthened Export controls after the legislation is passed by Parliament to allow for

a. a period to provide for education and outreach programs; and undertake a detailed pilot program in conjunction with key stakeholders (selected universities, research agencies and industry (particularly small to medium enterprises)), to assess practical implementation issues and make the necessary changes; and

b. a further period where offences will not be enforceable but permits can be obtained.

" Defence establish an Advisory Group comprising members from university, research, industry and government agency stakeholders to advise government on implementation issues during the transition period. Based on the results of the pilot program, the Advisory Group may recommend changes to the

legislation, regulations or implementing arrangements.

" The proposed Advisory Group could also engage with the university and research sectors to inform review of items listed on the DSGL. This would take advantage of specialist technical knowledge within the sectors to help ensure the DSGL keeps up with technical change and advances.

" Conduct a comprehensive pilot program during the transition period. This will involve a wide variety of stakeholders and activities to test and evaluate the implementation of controls and identify any activities that need special consideration. "

" Defence will invest and engage in extensive stakeholder engagement; including Advisory Board and pilot program set up and management, training, education, and assistance required by industry, universities and research entities during the transition period. This should include stakeholder feedback for the new IT system supporting implementation of the new processes.

" Ensure that all researchers, including those operating under Federal or State jurisdictions, be subject to the same export control regulations.

" Refocus the Bill *s compliance and regulatory regime from individuals and research groups to the organisational level (company, university, research agency or institution). Organisations would be responsible for implementing

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8

compliance schemes that will identify researchers, research projects and research programs that are affected by the legislation. Organisations will apply for permits on behalf of the affected groups and will be responsible for reporting compliance.

" Propose that publication be addressed by organisational or individual responsibility to ensure that controlled information is not published. An offence for publishing controlled information would be included, to apply if the proposed publication wilfully released controlled information - details on how to

'develop *, *produce * or in some cases *use1, the DSGL goods (akin to the practice around publishing classified information). This proposal would eliminate the need for organisations or researchers to obtain permits to publish their research results.

" Permits should be granted for specific research programs and projects for extended periods (preferably for the life of the program or grant where risk allows) and not be transactionally based.

" Develop, in consultation with stakeholders, accessible, searchable *user guides" and DSGL information, targeted specifically at researchers and universities.

Issues and proposed resolutions for discussion

This section presents the issues that have been raised through stakeholder consultations and proposes possible solutions to stimulate discussion and feedback.

Proposed resolution for discussion

It is recognised that the controls introduced for *defence services' are broader than required by the Wassenaar Guidance and this was an unintended consequence. It is proposed to remove controls on 'defence services * from the legislation:

" As the Bill is currently drafted, there is a broad control on anyone providing *defence services * in relation to DSGL-listed goods. The Bill *s current definition defines 'defence services * as including activities such as giving assistance in relation to design, repair, operation, destruction and use of all controlled goods - this control would apply equally to all goods listed on the DSGL. This control is broader than the measures outlined in the Wassenaar Arrangement's Guidelines which propose controls in accordance with the narrower DSGL *technical assistance * and *use * controls. "

" Australia *s Wassenaar Arrangement obligations couid be met by implementing the existing technology controls in the DSGL which are specific to individual DSGL goods. The broad *defence services * controls in the Bill would impose an unnecessary level of regulation and the Bill *s *defence services * controls could be removed.

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9

During the transition period, a pitot program could be established to test a range of different activities. This could be overseen by an Advisory Group to assess the impact of the legislation and recommend changes prior to the end of the transition period.

Foreign employees and students in Austral,IT

ellf *'10 *» fore*

Proposed resolution for discussion

The legisiation as currently drafted would impose significant regulation as it requires a permit for every supply from an Australian person to a foreign person inside Australia. This domestic permit requirement could be removed as the risk posed by these domestic supplies is lower due to the following existing domestic security arrangements:

* all foreign people in Australia have undergone border control and visa screening processes and been found to be of sufficiently low risk to be allowed entry into Australia; and

* other Australian legislation serves to reduce security risks posed by domestic transfers of sensitive technology.

If adopted, this would allow foreign students to study in Australia or foreign employees to work in the industry, university and research sectors in Australia without a permit.

Australians working overseas Opr 6ª,

The legislation as drafted would apply to Australians working overseas who are working with DSGL-listed technologies, regardless of whether those technologies have any connection to Australia: :

Proposed resolution for discussion

As currently drafted, the Bill has an extra-territorial application that requires any Australian located overseas to apply for a permit to supply DSGL-listed technology to a foreign person located overseas. Industry consultation has emphasised that this will have the effect that Australians employed overseas will need to apply for a permit if their work involves supplying DSGL-listed technology, regardless of whether the technology has any connection to Australia. If the supply is from a foreign country, it is therefore passible that the Australian person would be required to obtain permits from both Defence and the local export authority.

The Bill could be amended to remove the control on Australians located overseas supplying technology to a foreign person overseas. If adopted, this would enable Australians to work in overseas industry and research organisations without needing to obtain technology supply permits.

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Proposed resolution for discussion

A phased transition period of 12-24 months could be considered; for example:

" A12 month period for the Defence Export Control Office (DECO) to focus on assisting research and industry institutions with a comprehensive education and awareness-raising and building their internal compliance arrangements. This period will include a pilot program to test a range of different activities.

* A subsequent 12 month period in which institutions start to submit permits, but are exempt from the offence provisions.

´ Then followed by the Act coming into full force (including offence provisions).

The transition period will include a comprehensive pilot program. This will involve a wide variety of stakeholders and activities to test and evaluate the implementation of controis and identify any activities that need special consideration.

The entire transition period could be overseen by an Advisory Group to assess the impact of the legislation and to recommend changes to legislation, regulations and implementing arrangements prior to the end of the transition period. Existing DECO outreach activities

would continue to operate throughout and beyond the transition period.

Defence will establish an Advisory Group comprising members from university, research, industry and government agency stakeholders to advise government on implementation issues during the transition period. Based on the results of the pilot program, the Advisory Group may recommend changes to the legislation, regulations or implementing arrangements.

Defence will invest in extensive stakeholder engagement; including Advisory Board and pilot program set up and management, training, education, and assistance required by industry, universities and research entities during the transition period. This should also include stakeholder feedback for the new IT system supporting implementation of the new processes.

Proposed resolution for discussion

Consultation has highlighted the variety of possible implementation scenarios across different organisations and sectors, in implementing new legislation equally across all sectors, it is important to ensure that the arrangements, both regulatory and

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administrative, are appropriate for meeting the policy objectives while not introducing unintended consequences.

A key part of the proposed transition period and implementation of the legislation could be the conduct of a comprehensive pilot program. This could involve a wide variety of stakeholders and activities necessary to test and evaluate implementation arrangements.

The involvement of the Advisory Group would be valuable in contributing to the design and operation of the program; to ensure that scenarios are comprehensive and to identify appropriate participants and encourage their involvement. The outcomes of the program would be reviewed by the Advisory Group and would form the basis for identifying any

possible amendments or improvements to legislation, regulations and/or the administrative arrangements.

Defence will invest in extensive stakeholder engagement during the pilot program.

Offence exemptions to/ ADF. APS and police

The Bill provides Offence exemptions for ADF. APS and police officers acting in the /4iiKt*.rs . I

course of their duties.

Proposed resolution for discussion

The Bill contains specific exemptions to the supply and brokering offences for APS, ADF and police officers acting in the course of their duties. These exemptions mean that these employees can not be prosecuted for offences; however, they do not exempt the requirement for all APS, ADF and police to apply for permits.

During the course of consultations, other Commonwealth authorities and State governments requested these offence exemptions be extended to cover their employees. Research institutions also consider that it is inequitable to provide offence exemptions to government sector employees. Any amendment to the bill could ensure that all researchers, including those operating under Federal or State jurisdictions, be

subject to the same export control regulations.

la p M *

Scope of regulation

The proposed legislative controls may capture low-risk' education and research activities ifsXi *≥ **õ 1 *ª / *± *ª *ë *ª *π -*∑#ªâˆ‘ ^*Ø´*Ø4.*õ*∑^ *õ*∑*õ>**ô'* *†*∑*õ/4∑*ô*Æ’*Ø*Æ’*∑*5*ì*ì∑^

*ó*í*ó *≤ *ó *  *Ω-, -.^.VeV.

Proposed resolution for discussion

Discussions have canvassed whether the controls could target the *highest risk * areas of research. Universities refer to early discussions which talked about risk being highest in *very specialised and high-end * research. These discussions led to considering broad filters to exclude what at that time was seen as lower-risk categories of basic and applied

research.

The DSGL, by design, only includes goods and technologies that are of sufficient sensitivity to warrant regulation. Hence, any activity that involves the provision of goods

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or technologies on the DSGL needs to be assessed. Assessing tangible exports under the existing laws has shown that the vast majority of exports are approved.

During the transition period, a pilot program could be established to test a range of different activities. This would be overseen by the Advisory Group to assess the impact of the legislation and to recommend changes prior to the end of the transition period.

Proposed resolution for discussion

The export control regimes that determine what ultimately goes into the DSGL meet annually, and Defence can raise proposals at the relevant regime meeting (noting the DSGL items come from all four regimes - the Wassenaar Arrangement, the Missile Technology Control Regime, the Australia Group, and the Nuclear Suppliers Group)..

Proposals are regularly put up by participating states to introduce, clarify, or remove controls. All proposals are argued on their technical merits, considering security risk in the context of the practicality and utility of regulation. Participating states must agree changes by consensus.

Department of Foreign Affairs and Trade and Defence representatives attend the regime meetings and present a whoie-of-govemment position when Australia votes on a control (either new, change or remove). This includes assessment of the implementation impact and this has been the case in recent controls relating to tangible goods. With the introduction of intangible controls, that same assessment would still occur and. for intangible aspects, we'd expect the university and research sectors to be engaged.

The regime meetings all have 'technical experts meetings * that consider and advise on the controls. These meetings are attended by qualified officials with relevant technical backgrounds. Expert advice can be sought in advance from both within and outside of Government to assist with the development of the proposal if necessary.

The proposed Advisory Group could also engage with the university and research sectors to inform this review of items listed on the DSGL. This would take advantage of specialist technical knowledge within the sectors to help ensure the DSGL keeps up with technical change and advances. These arrangements could also ensure that Defence adequately consult with Australian stakeholders to inform the annual DSGL review process.

Self-assessment eg3j h S iBy .?3*= ∑.. *Õ.1 Researchers have suggested that they couid seif-assess.; .

1 fewª

.

S h is

Proposed resolution for discussion

Universities have expressed a preference for self-assessment and noted that Defence assessors may not be able to adequately assess risk in technology transfers. The Wassenaar Guidance notes that it will be important for universities to implement internal governance processes to raise awareness of, and facilitate compliance with, legal

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requirements. Defence will continue to engage with universities and research institutions to help facilitate seif-assessment.

Researchers are well-placed to identify the technical capabilities of their research goods and technology, while Government has access to the information and expertise necessary to assess the proliferation risk of supplying technology to overseas recipients, i.e. end-users.

Through appropriate due diligence measures, universities and research institutions can ensure export controls are implemented, including facilitating the requests for permits and any necessary reporting.

Proposed resolution for discussion

The exemptions for *in the public domain * and *basic scientific research * are currently contained in the DSGL to reflect the internationally agreed Wassenaar Arrangement definitions. For the sake of clarity and to assist with understanding, these exemptions could be replicated in the legislation.

The Office of Parliamentary Counsel could be tasked to include these definitions in the Bill as far as is possible, and where this is not possible, to further explain the concepts in the Regulations. There would then be no requirement for a legislative instrument

The draft definitions at Annex A match the definitions in the DSGL to ensure the exemptions for the existing tangible export of goods under the Customs Act 1901 match the intangible supply of technology relating to those same goods under the Bill. Also, these definitions wiii ensure Australia is consistent with other member states of the Wassenaar Arrangement

Consultation on the explanatory examples of 'in the public domain' and whether any examples are needed to better explain "basic scientific research * wiii support understanding of the legislation. This consultation could continue throughout the pitot program steered by the Advisory Group.

Competitiveness . ' u ∑.∑ %† v, : > y - . * ø ; ; : ∑ . ∑ . , ' .... y .

The controls on the supply of intangible transfers of technology cou|d adverseiy.affect the Australian academic and research community *s ability to be internationally competitive in the global research environment * ∑ . .

Proposed resolution for discussion

The Australian Government is committed to increasing our international engagement and to take advantage of emerging opportunities. Australia has a worid class research capability, but as a relatively small nation, needs to enable international engagement and tap into the other 97% of research undertaken outside Australia.

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14

in order to meet its Wassenaar obligations, Australia also needs to introduce controls on the supply of DSGL technologies and software. This would close the gap in Australia *s export controls and align those controls with the expected best-practices as outlined in the Wassenaar Guidance that were agreed in 2006. The introduction of controls on

intangible transfers of technofogy wilt also lift Australia's standing in the international community as a trusted custodian of sensitive technology, especially with the other 40 countries who are signatories to the Wassenaar Arrangement and potentially lead to greater involvement in international collaborative programs.

Finding the right balance will be critical to ensuring we do not impede opportunities to capitalise on global developments. Where research involves lower risk activities, permits should be broad and flexible to enable unimpeded collaboration.

Proposed resolution for discussion

Under the legislative proposal, increased understanding of DSGL goods will be needed.

It is important that those who use DSGL goods become familiar with the sensitive nature of the goods they are using and understand that while its purpose may be for the public good, there are security risks posed by the controlled goods and the technology associated with these goods.

In order to ensure that the level of regulation is appropriate for meeting the policy objectives and to identify ways in which administrative burden can be minimised, the following aspects couid be considered as part of a pilot program:

" The proportion of technology that would be exempt due to the 'in the public domain' exemption and the 'basic scientific research * exemption.

" How well an institution or researcher is positioned, as experts in their fields, to understand the segment or segments of the DSGL that relate to their research - recognising that there would be an initial familiarisation effort.

" How easy it is for institutions and researchers to use the various Defence tools and documentation, including the ability to search the DSGL using its index and electronic searching.

" The effectiveness of Defence *s outreach programs to assist institutions to implement internal awareness and education programs. "

" Testing the scope of the DSGL technology controls and its impact on research, noting that the DSGL does not control all technology associated with DSGL goods; rather, the DSGL only controls certain types of information (technologies) associated with DSGL goods:

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o For many DSGL goods, the technology would only be controlled if the supplied technology would enable the *production' or *development * of the DSGL good.

o For fewer, more sensitive DSGL goods, the technology would be controlled if the supplied technology would enable the *production *, *development * or 'use' of the DSGL good.

" Whether it is practical to consider the use of DSGL goods and technology at the start of a research project to establish whether there is likely to be a permit requirement.

" To test the Bill *s compliance and regulatory regime focus at the organisational level (company, university, research agency or institution) with organisations being responsible for implementing compliance schemes that will identify researchers, research projects and research programs that are affected by the legislation. Organisations will apply for permits on behalf of the affected groups and will be responsible for reporting compliance.

" To test the types of permits required to facilitate research activities and, depending on the collaboration destination and the sensitivity of the DSGL technology, whether broad permits could be issued for each research project, or programs of work, to authorise:

o technologies specified in the permit; and

o supplies to specified collaborative partners or, for lower risk technologies, to the countries named in the permits.

The intent is to reduce administrative burden by granting permits for specific research programs and projects for extended periods (preferably for the iife of the program or grant where risk allows) and not be transactionally based.

ª The application process; to ensure it is not overly complex and to validate processing timeframes - currently 15 working days for standard applications and 35 working days for sensitive applications, noting that in rare cases, an application may take longer if it is especially sensitive or complex.

Æ To ensure that record-keeping obligations are practical and manageable.

Publication . .. f J

%†: . w . ∑ ----- publication v * * %† '

Any control on publication will fetter free intellectual inquiry. " - '6 1 " e||Hi * " ' A ∑ * Ø > r i '

Proposed resolution for discussion

The exemption for *in the public domain * means that information which is already pubiicly available would not need a permit. While this usefully recognises that publicly available information should not be subject to regulation, it does introduce a significant vulnerability in that it would potentially allow any person to publish sensitive information as a way of

making it 'in the public domain * and therefore not subject to control. As currently drafted, the Bill requires an organisation or person to have a permit to supply controlled

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16

technology to another person but there is no restriction on their ability to provide that same technology to the world at large.

Publication should be an organisational or individual responsibility to ensure that controlled information isn *t published wilfully. An offence for publishing controlled information could be included which would apply if the proposed publication would communicate how to *develop *, 'produce' or in some cases *use *, the DSGL goods (akin to the practice around publishing classified information). This would eliminate the need to obtain permits to publish research results.

Proposed resolution for discussion

Implementation of the Bill will be by the Defence Export Control Office (DECO) which administers the existing tangible export controls. DECO adopts a voluntary compliance model which includes exporters and suppliers being encouraged to develop internal compliance programs that assist them to meet legislative requirements. Programs usually include aspects such as awareness raising and procedures specifically designed to guard against the unauthorised export of goods and supply of technology.

The model allows for the voluntary disclosure of mistakes and non-compliance with the legislation. DECO supports all industry participants who attempt to comply with the regulatory measures but do not always succeed. DECO works closely with organisations to fix the mistake by assisting them to improve their internal compliance programs to

guard against the risk of future non-compliance. As with the existing tangible export control framework, more stringent enforcement measures are available when organisations either do not want to comply or have actively decided not to do so.

Support to university and research secto/s

The, controls will be difficult to implement in the research sector due.to the dynamic, * 1 ""nndipitous nature of the research process. ∑

Proposed resolution for discussion

The implementation plan will provide support and assistance to universities and research institutions to recognise the special needs of the sector and instigate processes for awareness raising, permit applications and review of research in the same way that industry already does for tangible exports. This is recognised in the Wassenaar Guidance which outlines the need for academic institutions to implement internal compliance programs.

Outreach programs and materials to communicate these regulatory changes to the university and research sectors will be developed. The Advisory Group will support the development of the outreach programs and materials to benefit from their knowledge and to best communicate the regulations. Planned measures might include:

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17

" a simple user guide to help individuals understand and navigate the DSGL;

" a sector-specific publication to assist the academic and research sectors to understand what Austraiia *s export control system means for them (similar to the product developed previously for the mining industry);

" tools and guidance to help academic and research institutions to build internal compliance frameworks that are appropriate for their organisations;

" sector-specific outreach sessions for key export compliance staff (train the trainers); and

" sector-specific outreach sessions with researchers to help them understand their obligations and how the export control process works.

The pilot program will provide data to inform the Advisory Group as to the effectiveness of these outreach programs and materials.

Defence will ensure that these activities are properly resourced.

Concerns raised about the policy objectives .

Consulted organisations have raised concerns that the legislative p-cpcsal is based on a desire for alignment with the tangible supply regime and the approach adopted by the UK.

Proposed resolution for discussion

Introduction of the legislative proposal meets many aims:

" It implements Australia *s international obligations under the Wassenaar Arrangement;

" It protects the goods and technologies listed in the DSGL;

" It recognises that due to a range of existing domestic security arrangements, the supply of technology within Australia presents a lower level of risk and accordingly, applies no controls on technology supplies within Australia. This would allow foreign students to study in Australia or foreign employees to work

in the industry, university and research sectors in Australia without a permit;

" It recognises the heightened risk for technology supplies outside Australia and accordingly applies appropriate controls, with certain exemptions, to these supplies;

" It is most consistent with the existing tangible export control model and therefore provides a simpler, common approach. As such, it reduces potential cost to organisations that are complying with existing tangible controls as they will not need to establish separate compliance systems for tangible and intangible controls;

" Once tested through a pilot study, there may be a significant reduction in the level of regulation due to the exemptions of technology that are *in the public domain" and to a lesser extent if they are supplied in the course of *basic scientific research". These exemptions would be consistent with the exemptions that are currently listed in the DSGL and applied to tangible exports;

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* Once tested through a pilot study, the narrow and specific nature of *production *, *development * and *use * technology controls in the DSGL may mean that the level of control is less than perceived in many sectors; and

" The US Senate agreed to the ratification of the treaty on several conditions, binding on the US President, one of which was to certify to Congress that the Government of Australia has enacted legislation to strengthen its export controls, including intangible transfers of controlled technology.

Proposed resolution for discussion

US export controls do not provide broad exemptions to universities around intangible transfers

US International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR) rules control military and dual-use items and technologies and are not limited to *high end defence technologies".

No institutions in the US are exempted from US ITAR or EAR-based export controls. For a foreign national to have access to controlled US Munitions List (USML) or Commerce Controlled List (CCL) items (to include intangibles like technical data), within the US or overseas, a license is required, regardless of where they v/ork.

Within the US system, if you would need a license to export the item/technical data to a particular country, you would need a license to provide that item/technicai data to a foreign national operating in a university or private sector environment

If a university wanted to use a specifically controlled toxin, a piece of controlled equipment, or controlled technical data, they would need a license from the US Government to transfer this technical data or allow access to the controlled item to a foreign national in the US or abroad.

The US controls only exempt the outcomes/findings of fundamental research that involved the use of controlled goods or technology, with some restrictions. The exemptions would not apply if those outcomes/findings included the publication or suppiy of controlled technical data.

57

A nnex A

Definitions for consultation

Technology in the public domain *

(1) Technology will be *in the public domain' if it: (a) is 'in the public domain'; and (b) meets the requirements of paragraph (5).

(2) Technology will be 'in the public domain' if it has been made available without restrictions upon its further dissemination (copyright restrictions do not remove technology from being 'in the public domain').

(3) The following are examples of technology that, if available to the public, are *in the public domain'; (a) technology published in a book, journal or newspaper; (b) technology published on the internet;

(c) technology available as a subscription servicer (d) technology distributed at a conference, public meeting or seminar, trade show or exhibition; (e) technology about a scientific principle taught as part of an accredited

course at an educational institution; and (f) technology available in a patent.

(4) For paragraph (3)(d), information that is distributed at a conference, public meeting or seminar, trade show or exhibition is taken to be availabie to the public if it is available to a sector of the public.

(5) This paragraph sets out requirements for paragraph (1)(b). (a) It is a requirement that technology in the public domain has not entered the public domain in contravention of: (i) a law of the Commonwealth; or

(ii) a law of a foreign country relating to security; or (iit) a security classification that has been given to the information by: (A) the Commonwealth; or (B) the government of a foreign country. (b) It is a requirement that technology is not subject to a restriction on its

access or use (other than a copyright restriction), for example, a security classification given to the information by: (i) the Commonwealth; or (ii) the government of a foreign country.

Technology used in *basic scientific research *

'Basic scientific research * means experimental or theoretical work undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective.

58

Defending Australia audits National Interests

Appendix 5

FOREIGN AFFAIRS, DEFENCE AND TRADE

LEGISLATION COMMITTEE

Defence Trade Controls Bill 2011

SUBMISSION

SUBMISSION NUMBER: 21

SUBMITTER

Professor Ian Chubb, Chief Scientist of Australia

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60

Chief Scientist

28 September 2012

Senator Ursula Stephens Chair Senate Foreign Affairs, Defence and Trade Legislation Committee

Parliament House CANBERRA ACT 2600

Dear Senator Stephens

I am writing to advise you of the outcomes of the consultation between the Department of Defence and the university and research sectors on the Defence Trade Controls Bill (2011), which I have now completed.

On 6 September and 21 September 2012 I convened roundtables aimed at reaching an agreed path forward on the Bill, and address concerns with various aspects of the Bill raised by the university and research sectors.

Roundtable participants included the Chief Defence Scientist, Dr Alex Zelinsky, and representatives from Universities Australia, the University of Sydney, the Academy of Technological Sciences, Australian Academy of Science, the Cooperative Research Centres Association, Department of Defence, Department of Industry, Innovation, Science, Research and Tertiary Education and a number of other relevant Commonwealth agencies.

Discussions were fruitful and we reached an agreed path forward, although there are still reservations held by some representatives of the university sector regarding the timing of the legislation.

A list of outcomes agreed to at the roundtable is attached (Attachment A) for your information. In summary, the key developments include:

" establishment of a Strengthened Export Controls Steering Group; " a transition period of at least 24 months with no offence provisions in effect; " pilot studies (governed by the Steering Group) to test the regulatory impact of the regime;

" the final Report from the Steering Group to be tabled by Ministers; " internal institutional practices and structures (including a supplement to the Australian Code for the Responsible Conduct of Research) to be developed to reduce the need to interact with Government agencies on the legislative regime;

" exemptions for basic scientific research and for information already in the public domain.

Level 9,10 Binara Street, Canberra City ACT 2601 CHIEFSCIENTJST.GOv.AU

P 61 2 6213 6904 F 61 2 62761727 E chiefscientistCchieboentist,gcv.au

Pending approval of the terms of reference by the Minister for Defence, I will chair the Steering Group which will provide comprehensive oversight of the 24 months transition period and pilot studies. The Steering Group will monitor and evaluate processes established by the research organisations and Department of Defence to ensure the implementation of the Bill achieves the appropriate balance between supporting research activity and international engagement while protecting national security. The Steering Group will report 6-monthly to both the Minister for Defence, and the Minister for Tertiary Education, Skills, Science and Research. The Ministers are to jointly table the final report of the Steering Group in Parliament.

It has been noted by some representatives of the university sector that in their view a pilot study should precede the enacting of the legislation, not follow it, to enable results from the pilot to inform the final legislation. In my view, the current proposal involving

exemptions, legislation with provisions for a transition period, a pilot and a Steering Group with its final advice tabled by Ministers is quite workable. If issues with the Bill are identified through the pilot, the legislation can be amended at a later stage to address these issues. The Steering Group may also recommend to the Ministers that the transition period be extended.

In my view, the amended Bill is a significant improvement on the original, addressing key concerns initially identified by the sector. It does give institutions a very substantial role in managing the process. The inclusion of the transition period, pilot study, and the Steering Group should alleviate many of the sector's concerns and act to help minimise any administrative impacts overtime.

I support the amended legislation, incorporating agreed outcomes from the roundtable process.

If you have any further questions, please do not hesitate to contact me.

Yours sincerely

Professor Ian Chubb AC Chief Scientist

cc: The Hon Stephen Smith Minister for Defence

Senator the Hon Chris Evans Minister for Tertiary Education, Skills, Science and Research

Attachment A

Agreed outcomes of the roundtable discussion chaired by the Chief Scientist on 21 September 2012

" Establish the Strengthened Export Controls Steering Group, reporting to the Minister for Defence and the Minister for Tertiary Education, Skills, Science and Research (the Ministers).

" A transition period of at least 24 months with no offence provisions in effect. The Steering Group may recommend an extension to this non-offence provision transition period.

" A pilot program (not limited to a single pilot) to test the regulatory impact of the regime.

o The pilot to determine the costs and benefits associated with the regime, the feasibility of its implementation, the processes and interaction required to successfully implement the bill during the transition period, and identify any aspects that require modification prior to the offence provisions coming into full effect.

o The framework for the pilot to be agreed by the Steering Group and, pending consideration of the Steering Group, will span two grant funding cycles with interim reporting to identify improvements.

o The pilot will review mechanisms by which organisations can determine thresholds for technologies assessments beyond which an organisation will consult with Defence and, if required, seek a permit.

" Internal institutional practices and structures (including a supplement to the Australian Code for the Responsible Conduct of Research) to be developed to reduce the need to interact with Government agencies on the legislative regime.

" The Model to be tested as part of the pilot will consist of an export control regime that:

o Begins with an institutional assessment process for open academically based research in accordance with guidelines incorporated into the supplement to the Australian Code for the Responsible Conduct of Research. This step recognises that not all activities to supply technology to 'develop', 'produce', or

in comes cases 'use', an item on the DSGL will involve the level of detail which is peculiarly responsible for achieving or extending the controlled performance levels, characteristics or functions of the DSGL listed item. The institutions involved in activities of this type must have processes for assessing

technology and for determining when advice is to be sought from Defence about a possible permit in accordance with established guidelines.

o Provides exemptions from export controls for research, where :

- The activity is *basic scientific research *, as defined in the DSGL and Wassenaar Arrangements (Experimental or theoretical work

undertaken principally to acquire new knowledge of the fundamental principles of phenomena or observable facts, not primarily directed towards a specific practical aim or objective).

- The technology is already *in the public domain *, as defined in the DSGL (technology or software which has been made available without further restrictions upon its further dissemination (copyright restrictions do not remove technology or software from being in the public domain))

o Provides exemptions for transfers of technologies within Australia *s domestic borders.

The legislation that is passed must incorporate or allow for the following:

o modification, if necessary, once the results of the pilot studies are known.

o A non-offence transition period of no less than 24 months, and with the possibility of an extension on the recommendations of the Steering Group.

o Pilot studies governed by the Steering Group.

o Pilot studies to test outcomes from the Model.

o A formal evaluation against agreed criteria to include outcomes of pilot studies.

o A final report from the Steering Group to be submitted to the Ministers to be tabled in Parliament.

o Ordinary scientific communication is permissible, where the institution and individual have complied with established guidelines which include the institutional assessment model outlined above

o The provisions relating to Defence Services are deleted.

o Controls on foreign employees and students in Australia are removed.

o Controls on Australians overseas are removed.

The indicative flowchart that has been tabled, incorporating an institutional management framework for research that falls below a certain technology assessment threshold and, above that threshold, an application for a permit to Defence would have to be made. This is to be tested during the pilot.

Amendments to the legislation and the regulations to be drafted reasonably quickly, with appropriate consultation with the sector. A small sub group will meet to consider the amendments.

NHMRC to take the lead in developing a supplement to the Australian Code for the Responsible Conduct of Research applicable to universities and other research institutions, including government agencies and be:

o developed in consultation with relevant research institutions, government departments, other funding agencies, and the Steering Group;

o supported by the existing reference group.

The Senate

Foreign Affairs, Defence and Trade

Legislation Committee

Provisions of the Military Court of Australia Bill 2012 and the provisions of the Military

Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012

August 2012

© Commonwealth of Australia 2012

Printed by the Senate Printing Unit, Parliament House, Canberra

66

Senate Foreign Affairs, Defence and Trade Legislation Committee

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

1.1 On 29 June 2012, pursuant to the Selection of Bills Committee Report, the Senate referred the provisions of the Military Court of Australia Bill 2012 and the provisions of the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 to the Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report. The provisions of both bills were also referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 14 August 2012.

1.2 The reason for referring the provisions of the bill to the Senate Foreign Affairs, Defence and Trade Legislation Committee recognised that the committee had 'extensive knowledge, background and history on the military justice debate'. The Selection of Bills report recorded further:

Given that experience, and the fact that the new model is so different from that it replaces, it would be prudent to have the Bills considered by that Committee.1

1.3 In anticipation of the proposed legislation being referred to both committees, the Senate Foreign Affairs, Defence and Trade Legislation Committee met privately on 28 June. The committee decided that it would not duplicate the work of the Legal and Constitutional Affairs Legislation Committee by conducting a parallel inquiry. Instead, it resolved to provide a background paper to the committee based on its experience with the establishment of the Australian Military Court of Australia in 2006 and the subsequent decision of the High Court on its invalidity.

1.4 The paper provided to the Legal and Constitutional Affairs Legislation Committee explained that in its 2005 report on Australia's military justice system the committee recommended that the government establish an independent permanent military court. The court was intended to extend and protect a Service member's inherent rights and freedoms, leading to impartial, rigorous and fair outcomes.1 2 It would be staffed by independently appointed judges possessing extensive civilian and military experience.

1 Selection of Bills Committee, Report no. 8 of 2012, 28 June 2012, Appendix 2.

2 Senate Foreign Affairs, Defence and Trade References Committee, The effectiveness of Australia's military justice system, June 2005, p. xxii.

2

1.5 On 14 September 2006, the then Minister Assisting the Minister for Defence, the Hon Bruce Billson MP, introduced the Defence Legislation Amendment Bill 2006 into the House of Representatives (the bill). The main purpose of the proposed legislation was to give effect to the government's undertaking to enhance Australia's military justice system as outlined in its response to recommendations contained in the committee's 2005 report.

1.6 The provisions of the bill were referred to the committee for inquiry. In its report, tabled in October 2006, the committee recommended that the government review the bill based on the evidence presented to it and amend or re-draft the proposed legislation accordingly before proceeding with it.3 The government decided to delay debate on the bill to allow time for amendments to be drafted and presented to parliament. On 29 November 2006, the government introduced amendments, which were to give effect to some of the matters raised by the committee in its consideration of the bill. The bill as amended was passed by parliament and received assent on 11 December 2006.

1.7 In its background paper to the Legal and Constitutional Affairs Legislation Committee, the committee outlined the key findings in its report on the establishment of the court. The committee then drew attention to its continuing interest in, and monitoring of the operation of the court until, in August 2009, the High Court found that it was constitutionally invalid.

Senator the Hon Ursula Stephens

Chair

3 The Senate Standing Committee on Foreign Affairs, Defence and Trade, Defence Legislation Amendment Bill 2006 [Provisions].

68

The Senate

Legal and Constitutional Affairs

Legislation Committee

Courts Legislation Amendment (Judicial Complaints) Bill 2012 [Provisions]

Judicial Misbehaviour and Incapacity

(Parliamentary Commissions) Bill 2012

[Provisions]

August 2012

© Commonwealth of Australia

ISBN: 978-1-74229-667-8

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

MEMBERS OF THE COMMITTEE

Members

Senator Patricia Crossin, Chair, ALP, NT

Senator Gary Humphries, Deputy Chair, LP, ACT

Senator Sue Boyce, LP, QLD

Senator Mark Fumer, ALP, QLD

Senator Louise Pratt, ALP, WA

Senator Penny Wright, AG, SA

Participating member

Senator the Hon Bill Heffeman, LP, NSW

Secretariat

Ms Julie Dennett Committee Secretary

Mr Owen Griffiths Principal Research Officer

Ms Hannah Dibley Administrative Officer

Suite SI.61 Telephone: (02)6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@anh.gov.au

iii 71

72

TABLE OF CONTENTS

MEMBERS OF THE COM M ITTEE .................................................................... iii

RECOMMENDATIONS...........................................................................................vii

CHAPTER 1....................................................................................................................1

Introduction.................................................................................................................. 1

Referral of the inquiry................................................................................................1

Purpose of the bills.....................................................................................................1

Background.................................................................................................................5

Conduct of the inquiry..............................................................................................10

Acknowledgement....................................................................................................10

Note on references....................................................................................................10

CHAPTER 2 ..................................................................................................................11

Judicial Complaints Bill............................................................................................ 11

Key provisions..........................................................................................................11

Key issues.................................................................................................................12

Committee view........................................................................................................18

CHAPTER 3 ................................................................................................................. 21

Parliamentary Commissions Bill..............................................................................21

Key provisions..........................................................................................................21

Key issues.................................................................................................................23

Committee view....................................................................................................... 34

ADDITIONAL COMMENTS BY LIBERAL SENATORS...........................39

Membership of commissions...................................................................................39

Exclusion of state and territory supreme court justices ......................................... 40

DISSENTING REPORT BY SENATOR HEFFERNAN ................................ 41

Judicial Complaints Bill..........................................................................................41

Parliamentary Commissions Bill.............................................................................42

Conclusion................................................................................................................44

APPENDIX 1................................................................................................................ 47

SUBMISSIONS RECEIVED....................................................................................47

APPENDIX 2 ................................................................................................................ 49

WITNESSES WHO APPEARED BEFORE THE COMMITTEE 49

RECOMMENDATIONS

Recommendation 1

2.32 The committee recommends that the Courts Legislation Amendment (Judicial Complaints) Bill 2012 be passed.

Recommendation 2

3.59 The committee recommends that subclause 13(2) of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 be amended to provide that the Prime Minister must consult with the Leader of the Opposition, and both parliamentary presiding officers, before nominating a member of a parliamentary commission.

Recommendation 3

3.60 The committee recommends that subclause 13(3) of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 be amended to exclude serving judges of a supreme court of a state or territory from appointment to a parliamentary commission.

Recommendation 4

3.64 The committee recommends that clause 48 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 be amended to make clear that all evidence gathered and findings made by a commission must be included in either the report tabled in the parliament, or in the separate report on sensitive matters provided to the parliamentary presiding officers.

Recommendation 5

3.66 The committee recommends that clause 48 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 be amended to explicitly provide guidance in relation to the long-term storage and custody of a commission *s separate report on sensitive matters.

Recommendation 6

3.69 The committee recommends that clause 67 of the Parliamentary Commissions Bill be amended to clarify the application and protection of parliamentary privilege to the proceedings and reports of parliamentary commissions, and their use in the prosecution of offences against parliamentary commissions.

Recommendation 7

3.70 The committee recommends that, subject to recommendations 2 to 6, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 be passed.

vii 75

76

CHAPTER 1

Introduction

Referral of the inquiry

1.1 The Courts Legislation Amendment (Judicial Complaints) Bill 2012 (Judicial Complaints Bill) and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 (Parliamentary Commissions Bill) were introduced into the House of Representatives by the Attorney-General, the Hon Nicola Roxon MP, on

14 March 2012.1 On 22 March 2012, the provisions of both bills were jointly referred to the Senate Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 18 June 2012.1 2 The reporting date was subsequently extended to

13 July 2012.3 On 13 July 2012, the committee presented an interim report in which it indicated its intention to table its final report by 2 August 2012.

Purpose of the bills

1.2 In her Second Reading Speech for the Parliamentary Commissions Bill, the Attorney-General outlined that this bill, and the Judicial Complaints Bill, are important steps 'to ensure our federal judicial system is responsive, impartial, and capable of resolving serious complaints'.4 The Attorney-General indicated that the bills had been 'developed in consultation with, and are supported by, the heads of

federal courts jurisdiction'.5

Judicial Complaints Bill

1.3 The Judicial Complaints Bill amends the Family Law Act 1975 (Family Law Act), the Federal Court of Australia Act 1976 (Federal Court Act) and the Federal Magistrates Act 1999 (Federal Magistrates Act) to establish a framework to enable the Chief Justices of the Federal Court and the Family Court, and the Chief

1 House of Representatives Votes and Proceedings, 14 March 2012, p. 1303.

2 Journals of the Senate, 22 March 2012, p. 2351. Both bills were also referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs (House committee) on 15 March 2012, House of Representatives Votes and Proceedings, 15 March 2012, p. 1322; House of Representatives Hansard, 15 March 2012, p. 61. The House committee tabled an

advisory report on 25 June 2012 which recommended that both bills be passed. The advisory report is available via the House committee's website at: www.aph.gov.au/spla (accessed 26 June 2012).

3 Journals of the Senate , 18 June 2012, p. 2485.

4 The Hon Nicola Roxon MP, Attorney-General, House of Representatives Hansard, 14 March 2012, p. 2785.

5 The Hon Nicola Roxon MP, Attorney-General, House of Representatives Hansard, 14 March 2012, p. 2785.

Page 2

Federal Magistrate (the heads of jurisdiction), to manage complaints that are referred to them regarding judicial officers. The bill also amends the Freedom of Information Act 1982 (FOI Act) to exclude documents created through the complaints handling scheme from the operation of the FOI Act.

1.4 The Explanatory Memorandum (EM) to the Judicial Complaints Bill states that it is designed to support a largely non-legislative framework to assist the relevant head of jurisdiction to manage complaints regarding judicial officers which are referred to them. In particular, the Judicial Complaints Bill will:

" provide a statutory basis for these heads of jurisdiction to deal with

complaints about judicial officers;

" provide immunity from suit for heads of jurisdiction as well as participants assisting a head of jurisdiction in the complaints-handling process; and

" exclude from the operation of the FOI Act documents arising in the context of consideration and handling of a complaint about a judicial officer.6

1.5 In her Second Reading Speech, the Attorney-General emphasised that the Judicial Complaints Bill would 'provide heads of jurisdiction with an option to establish a conduct committee to investigate the basis of a complaint and report on what action should be taken about the complaint'.7 The EM to the Judicial Complaints Bill contains a diagram of the proposed non-statutory process for the handling of judicial complaints which will be supported by the Judicial Complaints Bill:8

6 EM, Judicial Complaints Bill, p. 2.

7 The Hon Nicola Roxon MP, Attorney-General, House of Representatives Hansard , 14 March 2012, p. 2785.

8 EM, Judicial Complaints Bill, p. 2.

Page 3

Diagram 1: Proposed non-statutory process for judicial complaints handling

Complaint is received by head of jurisdiction Complaints received by Ministers are to be referred to the Attorney-General The Attorney may refer

any cxxi'oiarnto to toe head of jurisdiction for consideration. V . ...... ............ ................... ....... .............. ............. -...... .J

Compiaint assessed by head of jurisdiction and ftemessed (for example on

lire grounds it is frivolous, vexatious or misconceived, or had afeady treen considered m accordance with the

judicial compiaints process).

Complaint finalised and complainant notified.

\ f Conptaint assessed by head of jurisdiction and resolved to the satisfaction of the head of jurad-coon. foSowrig

discussion with the person the subject of the complaint

Complaint finalised and complainant notified.

Corrptaim assessed by head of jurisdiction as serious and warranting further investigation Head

of junsdcticr. establishes a Conduct Committee to investigate and make recommendations

*õ f

j

Complaint assessed as ve ry serious by head of jurisdiction artd no further investigation is

required Cornpia-nt is mvnediateiy referred to the Attorney-General as il warrants parimmsfitary

consideration of removal mi grounds of proved misbehaviour or incapacity

Complainant notified.

The Committee reports tie comptaint is unsubstantiated The head of jurisdiction may dismiss complaint.

i

The Committee conducts an investigation to detemWie whether ecmptont is .subetantoted

Complaint finalised and

and reports to the head of jurisdiction.

complainant notified. V

substantiated

. :

Attorney-General refers compiatnt to Parliament for consideration m accordance with section 72 of the Constitution and any procedures established as a result of

the proposed Judicial Misbehaviour and Incapacity (Ptyi.amentary Commissions} Bit!.

Report finds that cmvtosnt justifies psriiametTuMy consideration of remcvai on the grounds of proved mtsfoehawooror incapacity. Head of jurisdiction may refer compiami to the

Attcmey-General,

Complainant notified.

Report Sids that complain! is substantiated but does not justify consideration of removal from office. Report may indude recommendations for future action. Head at jurisdiction may net

on Committee's repett.

Complaint finalised and complainant notified.

79

Page 4

Parliamentary Commissions Bill

1.6 The Parliamentary Commissions Bill enables parliamentary commissions to be established following a resolution by each House of the Parliament to investigate specified allegations of misbehaviour or incapacity of a specified Commonwealth judicial officer (including a Justice of the High Court of Australia).

1.7 The EM to the Parliamentary Commissions Bill states:

The Bill provides a standard mechanism to assist the Parliament in its consideration of removal of a judge or federal magistrate from office under the Constitution...While instances of removal of judges from office in Australia have been extremely rare, it is important that a clear framework is in place in the event that such a circumstance were to arise. Currently, there is no standard mechanism by which allegations about misbehaviour or incapacity against federal judicial officers would be investigated to assist Parliament's consideration of removal of a federal judicial officer under paragraph 72(ii) of the Constitution.9

1.8 In her Second Reading Speech, the Attorney-General outlined the key features of the Parliamentary Commissions Bill:

This bill establishes an effective tool that the parliament can employ to inform itself about the factual basis of an allegation of serious misbehaviour or incapacity against a Commonwealth judicial officer...

A commission would provide for an independent investigation into the factual basis of the allegation, in order to provide parliament with appropriate evidence for its consideration.

A commission would in no way usurp parliament's role in determining whether the conduct of a judicial officer amounted to proved misbehaviour or incapacity...

It enables a commission to operate in an inquisitorial manner, similar to the way that parliamentary committees operate.

A commission will be required to act in accordance with the rules of natural justice, and the bill specifies procedures a commission must follow to ensure the Commonwealth judicial officer who is the subject of an investigation is treated fairly.

Chapter III of the Constitution establishes the independence of the Commonwealth judiciary from other limbs of government. Consistent with this independence, a commission would not have power to require the participation of current and former Commonwealth judicial officers in its

investigation into an allegation.

9 EM, Parliamentary Commissions Bill, p. 2.

80

____ ___________________________________________________________ ______ Page 5

Commonwealth judicial officers could still participate and assist a commission's investigation should they choose to do so.10 11

Background

1.9 Under section 72 of the Constitution, Justices of the High Court of Australia (High Court) and of other courts created by the Federal Parliament, once appointed, cannot be removed except by the Governor-General in Council on an address from both Houses of Parliament in the same session 'praying for such removal on the ground of proved misbehaviour or incapacity'. This protection of judicial tenure is recognised as an important safeguard of judicial independence in the constitutional

separation of powers.11

1.10 Currently, the Federal Court of Australia (Federal Court), the Family Court of Australia (Family Court) and the Federal Magistrates Court each have similar informal and largely non-legislative judicial complaints procedures.12 While some differences exist between the courts,13 these procedures involve mechanisms to deal with complaints regarding delay or judicial misconduct made to the Chief Justice of the Federal Court, the Chief Judge of the Family Court, or the Chief Magistrate of the Federal Magistrates Court. However:

This complaints procedure does not, and cannot, provide a mechanism for disciplining a judge [or federal magistrate]. It does, however, offer a process by which complaints made about judicial conduct by members of the public can be brought to the attention of the [head of jurisdiction] and the judge [or federal magistrate] concerned and it provides an opportunity for a complaint to be dealt with in an appropriate manner.

For constitutional reasons, the participation of a judge in responding to a complaint is entirely voluntary. Nevertheless, it is accepted that a procedure for complaints can provide valuable feedback to the Court and to its judges [or federal magistrates] and presents opportunities to explain the nature of

its work, correct misunderstandings where they have occurred and, if it

10 The Hon Nicola Roxon MP, Attorney-General, House of Representatives Hansard , 14 March 2012, p. 2786.

11 Department of the Senate, Odgers' Australian Senate Practice , 12th edition, 2008, pp 511-513; Enid Campbell and HP Lee, The Australian Judiciary, 2001, p. 101.

12 For example, see Family Court of Australia, Judicial Complaints Procedure, available at: http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/Feedback/FCOA compla ints judicial (accessed 2 May 2012).

13 For example, in the Family Court, the Deputy Chief Judge manages judicial complaints assisted by a Judicial Complaints Adviser.

Page 6

should fall short of judicial standards, to improve the performance of the Court.14

1.11 The procedure provided for under section 72 of the Constitution for the removal of a federal judge has never been used but, in 1986, the parliament passed the Parliamentaiy Commission of Inquiry Act 1986. This legislation established a commission to inquire into, and advise the parliament on, whether the conduct of then High Court Justice the Hon Lionel Murphy had 'been such as to amount...in its opinion, to proved misbehaviour within the meaning of section 72 of the

Constitution'.13 Following revelations that Justice Murphy was terminally ill, the commission was terminated by repealing legislation. Prior to the establishment of the commission, two Senate select committee inquiries were conducted in 1984 and criminal proceedings took place in 1985 against Justice Murphy in the Supreme Court of New South Wales. The criminal proceedings resulted in a conviction for one of two charges of attempting to pervert the course of justice; however, this conviction was quashed following an appeal and Justice Murphy was acquitted at the second trial. *6

1.12 There are also examples of state parliaments dealing with allegations of misconduct or incapacity against judicial officers.17 These include a statutory Parliamentary Judges Commission of Inquiry established by the Legislative Assembly of Queensland in 1988 to investigate whether the behaviour of Justice Angelo Vasta warranted his removal from office as a judge the Supreme Court. That commission reported that Justice Vasta's behaviour warranted his removal. Justice Vasta was allowed to address the Legislative Assembly to show cause why he should not be removed from office. However, the Legislative Assembly agreed with the findings of the commission and resolved to address the Governor of Queensland requesting the

14 See Federal Court of Australia, Judicial complaints procedure , available at: http://www.fedcourt.gov.au/contacts/contacts other complaints.html (accessed 2 May 2012); Family Court of Australia, Judicial Complaints Procedure, available at: http://www.familvcourt.gov.au/wps/wcm/connect/FCOA/home/about/Feedback/FCOA compla ints judicial (accessed 2 May 2012); Federal Magistrates Court, Judicial Complaints Procedure, available at: http://www.fmc.gov.au/pubs/docs/Judicial Complaints Procedure.pdf (accessed 2 May 2012).

15 Parliamentary Commission of Inquiry Act 1986, subsection 5(1). Repealed by Parliamentary Commission of Inquiry (Repeal) Act 1986. Further discussion and commentary on this matter is provided in Department of the Senate, Odgers'Australian Senate Practice, 12th edition, 2008, pp 511-538; see also Enid Campbell and HP Lee, The Australian Judiciary, 2001, pp 102-103.

16 Enid Campbell and HP Lee, The Australian Judiciary, 2001, pp 102-103.

17 Further examples in NSW are outlined in Department of the Senate, Odgers' Australian Senate Practice, 13th edition, 2012, pp 684-685, extract tabled by the Clerk of the Senate at the committee's public hearing on 11 May 2012; see also Enid Campbell and HP Lee, The Australian Judiciaiy, 2001, pp 106-108.

Page 7

removal of Justice Vasta on 7 June 1989. Following presentation of the address, Justice Vasta was removed from office by the Governor.18

Constitutional Commission report

1.13 In 1988, possible reform of the mechanism for the removal of judicial officers in section 72 of the Constitution was proposed by the then Constitutional Commission. In its Final Report, the Constitutional Commission recommended that section 72 be altered. The alterations proposed that an address for removal of a justice 'shall not be made unless a Judicial Tribunal, requested by a Minister of State for the Commonwealth to inquire into an allegation of misbehaviour by or incapacity of the Justice, has reported the facts found by it could amount to misbehaviour or incapacity warranting removal'.19 Further, 'the address of each House of Parliament must be based on facts found by the Tribunal'. The proposed alterations specified that a member of the Judicial Tribunal 'must be a Justice of a superior federal court other than the High Court or a judge of the Supreme Court of a State or Territory *.20

Australian Law Reform Commission report

1.14 In February 2000, the Australian Law Reform Commission (ALRC) tabled its report, Managing Justice: A Review of the Federal Civil Litigation System. In relation to the issue of complaints against Commonwealth judicial officers, the ALRC noted that it had 'moved away from a proposal...to establish a standing national judicial commission to receive and investigate complaints against federal judges' and had 'concluded that the establishment of such a body would be problematic under chapter III of the Constitution'.21 Instead, the ALRC recommended that 'each federal court develop a transparent internal system of complaints handling' and that 'both Houses of federal Parliament develop rules or a protocol designed to ensure the smooth transfer and certain handling of the rare complaints against federal judges of

sufficient seriousness and substance to merit consideration of whether to remove the judge from office'.22 In particular, the ALRC recommended:

18 See Enid Campbell and HP Lee, The Australian Judiciary, 2001, pp 105-106; The Hon James Thomas AM, Judicial Ethics in Australia, 3rd edition, 2009, pp 155-157; Department of the Senate, Odgers'Australian Senate Practice, 13lh edition, 2012, pp 683-684, extract tabled by the Clerk of the Senate at the committee's public hearing on 11 May 2012.

19 Constitutional Commission, Final Report of the Constitutional Commission, Volume 1,1988, p. 406.

20 Constitutional Commission, Final Report of the Constitutional Commission, Volume 1, 1988, p. 406.

21 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Litigation System, Report 89, February 2000, p. 11, available at www.alrc.eov.au/report-89 (accessed 5 May 2012).

22 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Litigation System, Report 89, February 2000, p. 12.

Page 8

Parliament should give consideration to whether, and in what circumstances, the protocol might provide for the establishment of an independent committee, drawn from a panel of distinguished retired judges (or other suitably qualified persons), to investigate the complaint and prepare a report to assist Parliament with its deliberations. Such a provision

should not derogate from the flexible powers presently possessed by the two Houses to fashion and control their own procedures.23

Previous Senate Committee report

1.15 In December 2009, the Senate Legal and Constitutional Affairs References Committee (References Committee) tabled its report titled Australia's Judicial System and the Role of Judges,24 25 The References Committee made a number of recommendations in relation to establishing processes to handle complaints regarding judicial officers. In particular, the References Committee recommended that, subject

to constitutional limitations and consultation with the federal courts, the Australian Government should establish a judicial commission modelled on the Judicial Commission of New South Wales.23

1.16 In relation to complaints against judicial officers, the References Committee commented:

The committee is persuaded that because of the simplicity of the conduct requirements in section 72 there are legislative gaps in the existing arrangements. In the first place the section does not address the process required for any inquiry into serious misconduct or incapacity. Secondly, there are no statutory arrangements for dealing with less serious complaints of judicial misconduct. Courts are left to adopt informal mechanisms and

23 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Litigation System , Report 89, February 2000, p. 31.

24 Senate Legal and Constitutional Affairs References Committee, Australia's Judicial System and the Role of Judges, December 2009, available from the committee's website: www.aph.gov.au/senate legalcon.

25 Senate Legal and Constitutional Affairs References Committee, Australia's Judicial System and the Role of Judges, December 2009, p. 95. The Judicial Commission of NSW was established under the Judicial Officers Act 1986 (NSW). It functions to assist that state's courts achieve consistency in sentencing, and it supervises appropriate judicial education, as well as examining complaints against judicial officers. Judicial complaints which are investigated by the Judicial Commission of NSW can be dismissed, referred to the relevant head of jurisdiction for appropriate action, or referred to a Conduct Division for further investigation. In investigating judicial complaints, the Conduct Division has the functions, protections and immunities of a

royal commission. The Conduct Division must either provide a report to the relevant head of jurisdiction or a report to the Governor setting out whether a complaint is wholly or partly substantiated, and whether it could justify parliamentary consideration of the removal of the judicial officer from office: Judicial Commission of NSW, Guide for Complainants, available

at: www.iudcom.nsw.gov.au (accessed 5 May 2012).

84

Page 9

have no specific investigative or complaint handling resources or expertise.26

1.17 The References Committee's report also recommended that the

Australian Government implement an interim procedure for addressing judicial complaints, including a federal process to enable the establishment of an ad hoc tribunal to investigate complaints of judicial misconduct or incapacity, and guidelines for the investigation of less serious misconduct or incapacity issues.27

1.18 The Australian Government's response in 2010 to the References Committee *s report noted its recommendations and indicated that the Australian Government was working within the then Standing Committee of Attomeys-General on a range of options for handling complaints against judicial officers.28

1.19 The High Court does not have a procedure for dealing with complaints regarding judicial officers. The References Committee's report recommended that the High Court 'adopt a written complaint handling policy and make it publicly available'.29 In its response to the References Committee's report, the Australian Government noted that, on 17 December 2009, the Chief Justice of the High Court had written to the then Attorney-General in relation to this matter. In his

letter, the Chief Justice stated:

There is no statutory or other basis for establishing any procedure for 'handling complaints' against Justices of the High Court. Because it seems inevitable that any question as to the constitutional validity of procedures of that kind would come to this Court for decision, the Court will make no

further comment on the issue.30

Previous legislation

1.20 Previous attempts have been made to pass legislation to establish a parliamentary commission to investigate judicial complaints at the federal court level. On 11 September 2007, Senator Linda Kirk introduced a private senator's bill, titled the Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2007

(Kirk Bill) and, on 22 February 2010, the Hon Duncan Kerr SC MP, introduced a

26 Senate Legal and Constitutional Affairs References Committee, Australia's Judicial System and the Role of Judges , December 2009, p. 73.

27 Senate Legal and Constitutional Affairs References Committee, Australia's Judicial System and the Role of Judges , December 2009, p. 97.

28 Australian Government response to Senate Legal and Constitutional Affairs References Committee's report Australia's Judicial System and the Role of Judges, pp 4-5, available from the committee's website: www.aph.gov.au/senate legal con.

29 Senate Legal and Constitutional Affairs References Committee, Australia's Judicial System and the Role of Judges, December 2009, p. 7.

30 Australian Government response to Senate Legal and Constitutional Affairs Committee report Australia's Judicial System and the Role of Judges, p. 1.

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private member's bill, titled the Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 (Kerr Bill). Both the Kirk Bill and the Kerr Bill proposed the establishment of a commission to assist the parliament in the exercise of its constitutional responsibility in instances of alleged misbehaviour by, or incapacity of, a federal court justice.31 Both the Kirk Bill and the Kerr Bill lapsed at the dissolution of the 42nd Parliament.

Conduct of the inquiry

1.21 The committee advertised the inquiry in The Australian newspaper on 11 April 2012. Details of the inquiry, including links to the Bills and associated documents, were placed on the committee's website at

www.anh.gov.au/senate legalcon. The committee also wrote to a number of organisations and individuals, inviting submissions by 13 April 2012.

1.22 The committee received 15 submissions, which are listed at Appendix 1. All public submissions were published on the committee's website.

1.23 The committee held public hearings for the inquiry on 11 May 2012 and 25 May 2012 at Parliament House in Canberra. A list of witnesses who appeared at the hearing is at Appendix 2, and copies of the Hansard transcript are available through the committee's website.

Acknowledgement

1.24 The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearings.

Note on references

1.25 References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

31 Senator Linda Kirk, Senate Hansard, 11 September 2007, p. 35; the Hon Duncan Kerr SC MP, House of Representatives Hansard, 31 May 2010, p. 4709.

86

CHAPTER 2

Judicial Complaints Bill

Key provisions

2.1 As noted in chapter 1, the key provisions of the Judicial Complaints Bill would establish a framework to enable the heads of jurisdiction of the Federal, Family and Federal Magistrates Courts, to manage complaints that are referred to them regarding judicial officers.

2.2 In essence, the Judicial Complaints Bill proposes identical amendments to the Family Law Act, the Federal Court Act and the Federal Magistrates Act. The Judicial Complaints Bill amends all of these Acts to:

" insert new definitions in relation to handling complaints;

" amend the responsibilities of the head of jurisdiction of each court to provide for them to handle complaints, to arrange for other complaint handlers to assist them, and to authorise persons or bodies to handle complaints;

" insert legal protections for those involved in the handling of complaints; and

" outline the application of the proposed amendments.

2.3 As these proposed amendments are replicated in the Family Law Act, the Federal Court Act and the Federal Magistrates Act, the following section will only set out the proposed amendments to the Family Law Act as an example.

Family Law Act amendments

2.4 Items 1, 2, 3 and 4 of Schedule 1 insert into existing subsection 4(1) of the Family Law Act definitions for 'complaint', 'complaint handler', what it means to 'handle' a complaint, and what comprises a 'relevant belief. The EM to the Judicial

Complaints Bill notes that the definition of 'complaint handler' and what it means to 'handle' a complaint enable the Chief Judge of the Family Court to refer a complaint to a conduct committee, and enable the conduct committee to investigate the complaint and provide a report to a Chief Judge for further consideration.1 However, there is no requirement in the bill for heads of jurisdiction to establish a conduct committee.

2.5 Items 5, 6, 7, 8, 9, 10 and 11 of Schedule 1 make amendments to various

subsections of existing section 21B of the Family Law Act, which currently establishes the responsibility of the Chief Judge of the Family Court to ensure the 'effective, orderly and expeditious discharge of the business of the Court'. The amendments provide for the Chief Judge of the Family Court to handle complaints *

1 EM, Judicial Complaints Bill, pp 8-9.

Page 12

about other judges, to arrange for other complaint handlers to handle complaints, and to authorise another person or body to handle complaints.

2.6 Item 5 of Schedule 1 inserts into existing subsection 21B(1A) two new paragraphs relating to the power of the Chief Judge to deal with a complaint about another judge's performance of his or her judicial or official duties.

2.7 Proposed new paragraph 21B(lA)(c) extends the Chief Judge's specific powers to include a power to deal with a complaint about the performance by another judge of his or her judicial or official duties. Proposed new paragraph 21B(lA)(d) gives the Chief Judge power to take any measures that he or she believes are

reasonably necessary to maintain public confidence in the court, including the ability to temporarily restrict another judge to non-sitting duties. This power operates whether or not there has been a complaint about the judge.2

2.8 Item 12 of Schedule 1 inserts proposed new section 38Y titled 'Protection of persons involved in handling etc. complaints'. The proposed new section provides that a complaint handler (or a person authorised to handle a complaint) under the proposed amendments to section 2IB has the same protection and immunity as a Justice of the High Court. Similarly, a witness appearing before a complaint handler has the same protections, and is subject to the same liabilities, as a witness in a proceeding tried by the High Court. A lawyer assisting, or appearing on behalf of, a person before a complaint handler has the same protection and immunity as a barrister appearing for a party in a proceeding before the High Court.

Key issues

2.9 Key issues raised by submitters and witnesses during the course of the inquiry in relation to the Judicial Complaints Bill include:

" the approach taken in the bill;

" the exclusion of the High Court from the bill's operation;

" the discretion of heads of jurisdiction in handling complaints; and

" legal costs for judicial officers.

Approach of the Judicial Complaints Bill

2.10 Several submissions expressed broad support for the approach of the Judicial Complaints Bill. For example, the Judicial Conference of Australia noted that it is desirable to have 'in each jurisdiction a mechanism for dealing with complaints against judicial officers which preserves judicial independence, is appropriately transparent and promotes justice as between the complainant and the judicial officer'.3

2 EM, Judicial Complaints Bill, pp 9-10.

3 Submission 4, p. 1.

88

Exclusion of heads of jurisdiction

2.11 The scholars from the University of Adelaide Law School (Adelaide Law School) supported the approach of the Judicial Complaints Bill in 'formalising the (currently informal) role of the head of the court', in view of the constitutional constraints on the parliament in disciplining judicial officers. However, it emphasised that the coverage of the Judicial Complaints Bill is limited in that it does not apply to complaints directly relating to the head of jurisdiction in each court. The Adelaide

Law School considered that the lack of coverage of the Judicial Complaints Bill over complaints against a head of jurisdiction 'undermines the achievement of the Bill's objectives',4 suggesting that this 'could be remedied by making provision for complaints against the head of the jurisdiction to be dealt with by the next most senior judge in the jurisdiction, or by a judicial officer from a higher court'.5

2.12 In this context, the Attorney-General's Department (Department) highlighted the special position of the heads of jurisdiction:

[I]t is considered inappropriate to have the conduct of a head of jurisdiction subjected to scrutiny within that court by designated persons who occupy positions lower in the judicial hierarchy.

Heads of jurisdiction are subject to section 72(ii) of the Constitution and would be covered by the Parliamentary Commissions Bill. Serious concerns about the conduct of a head of jurisdiction that may warrant removal from office would be able to be referred for the Parliament to consider under paragraph 72(ii) of the Constitution.6

Other issues

2.13 The Adelaide Law School also highlighted a number of other specific areas for improvement in the Judicial Complaints Bill:

" provision for the process of handling complaints regarding judicial officers to be explained and made accessible to the public, and provision for ongoing information about the way the system is working;

" additional protection of the sensitive or personal information of the parties to a complaint (noting that 'the actions of the head of jurisdiction under the Bill may be the subject of judicial review and therefore the information may still come into the public domain *); and

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4

5

6

Submission 7, p. 4.

Submission 7, p. 4.

Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 2.

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" provision for dealing with a judicial officer who refuses to comply with measures imposed by the head of jurisdiction, such as a temporary restriction to non-sitting duties.7

Exclusion of the High Court

2.14 The Judicial Complaints Bill applies to federal courts created by the parliament, but not to the High Court. In its submission, the Adelaide Law School noted that the Attorney-General has explained this differential treatment by reference to the High Court's position at 'the apex of the Australian judicial system' and the fact that the High Court 'could be called upon to determine the validity of any structure

established to handle judicial complaints'.8 The Adelaide Law School disagreed with this position, noting that the High Court has previously considered legislation that directly touched upon the judiciary 'without fear or favour'. The Adelaide Law School also argued that any matters relating to High Court justices 'deserve to be dealt with in

a way no less transparent than matters arising in other federal courts', and recommended that the Judicial Complaints Bill should apply to all federal courts, including the High Court.9

2.15 In a response to a question on notice, the Department reiterated that the approach 'adopted by the Government to exclude the High Court from the operation of the Judicial Complaints Bill recognises the special position of the High Court', but the committee was not provided with a specific constitutional reason for the exclusion.10 11 The Department did, however, note that paragraph 72(ii) of the Constitution applies to all federal judges, including Justices of the High Court, meaning that the commissions proposed under the Parliamentary Commissions Bill would be able to investigate allegations about a Justice of the High Court.11

2.16 Professor Andrew Lynch from the Gilbert and Tobin Centre of Public Law agreed with the exclusion of the High Court from the Judicial Complaints Bill, arguing that 'the High Court is distinguished not just by its seniority but also by its size'. Professor Lynch differentiated the position of the Chief Justice of the High Court from the positions of the heads of jurisdiction of the other federal courts:

The Chief Justice [of the High Court] as a head of jurisdiction...is simply one individual amongst the seven that sit always together on major cases...It

7 Submission 7, pp 4-6.

8 Submission 7, p. 3.

9 Submission 7, p. 3.

10 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 1.

11 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 1.

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is very different from the Chief Justice of the Federal Court, who is the head of jurisdiction over many, many other judges.12

Discretion of heads of jurisdiction

2.17 The broad discretion granted to the heads of jurisdiction under the Judicial Complaints Bill was highlighted during the inquiry.

Temporary restriction to non-sitting duties

2.18 A number of submitters commented on the head of jurisdiction's power under the Judicial Complaints Bill to take any measures the head of jurisdiction believes are reasonably necessary to maintain public confidence in the court. For example, the Adelaide Law School proposed provision for other measures for heads of jurisdiction to take in dealing with judicial complaints, in addition to *temporarily restricting another Judge to non-sitting duties *, including (in serious cases) public admonishment and reprimand.13

2.19 In their submission, Professor Sharyn Roach Anleu and

Professor Kathy Mack from Flinders University noted that *the Bill and the Memorandum are silent on what responses or sanctions might be available if a complaint is found to be justified *.14 They highlighted that the only measure referred to in the Judicial Complaints Bill is the *statutory power to "temporarily restrict a judge to non-sitting duties'". Further:

This response may be appropriate while a complaint is being considered, or as a remedy or sanction in relation to certain kinds of complaints, but it does not address the personal, situational or institutional factors which may have led to the complaint. It may even aggravate them, as taking [a] judicial officer out of the sitting lists, while still on full pay, will only increase the workload on colleagues. Under the present workload allocation systems, heads of jurisdiction and judicial colleagues can and will provide some relief to judicial officers whose health or personal circumstances or work capacity require it, within limits. However, neither the current informal system nor the Bill create any additional measures or responses or sanctions which might directly address the problems which led to the complaint.15

Guiding criteria

2.20 The Adelaide Law School suggested that the Judicial Complaints Bill could also be improved by the provision of criteria to guide decision-making by heads of jurisdiction in handling complaints regarding judicial officers. It argued that, by

12 Committee Hansard, 25 May 2012, p. 4.

13 Submission 7, pp 4-6.

14 Submission 6, p. 5.

15 Submission 6, p. 5.

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failing to set down guiding criteria for the head of jurisdiction, the Judicial Complaints Bill 'undermines its chief purpose, which is to increase transparency and strengthen public confidence in the judiciary'. The Adelaide Law School also considered that

there is 'enough scholarship on judicial ethics and what constitutes judicial misbehaviour to compile a non-exhaustive list of criteria to guide the judge's discretion in handling complaints'.16

2.21 In evidence, Dr Suzanne Le Mire from the Adelaide Law School suggested that the responsibilities of the heads of jurisdiction outlined in the Judicial Complaints Bill 'could be fleshed out to include some non-exclusive statement of the standards expected of judges'.17 Specifically:

[Guidelines] would potentially give more guidance not only to those who are potentially subject to the system, the judges, but also to members of the public who are looking at this from outside as to what kinds of standards for judges there are within our system. Having some guidance could be an

important signal to both judges and complainants about the criteria against which these complaints are going to be assessed.18

2.22 Professor Andrew Lynch from the Gilbert and Tobin Centre of Public Law also argued that it is desirable to have 'some kind of statement or guidance in the legislation that [is] a factor that the head of jurisdiction needs to bear in mind, particularly in relation to using quite a remarkable power such as suspension from sitting duties'.19 In particular:

[A] statutory power to suspend that depends simply on the belief of the head of jurisdiction that this is 'reasonably necessary to maintain public confidence in the court', as this bill does, seems worryingly loose. Following the example of New South Wales law, our view is that it would seem preferable for the [C]omplaints [B]ill to require the occurrence of specific factual triggers before a head of jurisdiction may proceed to use his or her discretion to suspend. Examples are either the passage of a motion to establish a parliamentary commission or, even earlier, the delivery of a report by the conduct committee that the head of jurisdiction has established. Our view...is that it is important to establish clear and suitably serious thresholds before a step such as suspension is taken.20

2.23 In relation to the need for guiding criteria for heads of jurisdiction, the Department responded:

The Judicial Complaints Bill has been developed to support a largely non≠ legislative framework for complaints handling undertaken within the courts.

16 Submission 7, p. 5.

17 Committee Hansard, 11 May 2012, p. 8.

18 Committee Hansard, 11 May 2012, p. 8.

19 Committee Hansard, 25 May 2012, p. 3.

20 Committee Hansard, 25 May 2012, p. 1.

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Under the Bill, the power of a head of jurisdiction to handle complaints is part of the broad responsibility of the head of jurisdiction for ensuring the effective, orderly and expeditious discharge of the business of the Court.

This forms the overarching criteria for a head of jurisdiction to consider in handling complaints about judicial officers within the court. It would be a matter for an individual court to adopt non-exhaustive factors to guide

consideration consistent with their own operating procedures.

Details in relation to the procedures for complaints to be made, the possible outcomes that might flow from a complaint and the rights of complainants to be informed of the progress of their complaint will be addressed through the non-statutory model for complaints handling within the courts which is being finalised in consultation with heads of jurisdiction.21

Legal costs

2.24 In their submissions, the Federal Court of Australia and the

Judicial Conference of Australia highlighted that, while clause 45 of the Parliamentary Commissions Bill provides that the Commonwealth will pay the reasonable legal costs of a judicial officer being investigated in relation to an allegation of misbehaviour or incapacity, there is no corresponding provision in the Judicial Complaints Bills.22 Both submissions proposed an amendment to the Judicial Complaints Bill for the Commonwealth to provide for the reasonable legal costs of a judicial officer in responding to a complaint. The Judicial Conference of Australia noted two reasons for such an amendment:

One is to provide fairness to the judicial officer...Secondly and importantly, such a provision would encourage judicial officers to participate fully and voluntarily in the handling of the complaint. Necessarily, the participation of a judicial officer in this process must be voluntary. It would be regrettable if the operation of this statute was affected by a reluctance on the part of judicial officers to cooperatively participate, for fear of the burden of the cost of necessary legal representation.23

2.25 However, in commenting on the submission from the Federal Court of Australia, Civil Liberties Australia disagreed with the suggestion that judicial officers should be 'reimbursed reasonable costs associated with responding to or appearing before a complaint handler':

This proposal, if accepted, would lead to a perception that ordinary Australians are subject to one law, while judges (who are paid multiple times the average weekly wage by the Commonwealth) are subject to another...Few, if any, other Australians could expect their employer to pay

21 Response to questions on notice provided by the Attorney-General *s Department on 24 May 2012, p. 4.

22 Federal Court of Australia, Submission 1, p. 1; Judicial Conference of Australia, Submission 4 , PP 1-2.

23 Submission 4, p. 2.

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their reasonable legal costs when they were subject to a workplace investigation, even where dismissal and loss of employment were a real possibility...[A] judge, like any other employee, should expect a fair hearing by their employer; be able to request the presence of a support person of their choice; and be able to appeal an adverse decision against them. They should not, however, have their costs covered by the Commonwealth.24

2.26 The Department noted that provision has been made in the

Parliamentary Commissions Bill for a judicial officer's legal costs to be paid 'in recognition that a judicial officer is subject to a parliamentary process by virtue of their constitutional standing as a Chapter III judge'.2" In contrast to the approach taken in the Parliamentary Commissions Bill, the Department outlined that the approach to reimbursement of legal costs in the Judicial Complaints Bill is 'consistent with the character of an internal complaints handling process'. Further, the Department noted that federal courts are responsible for their own operation and management, and that the heads of jurisdiction could offer to reimburse the legal costs of a judicial officer where they consider it appropriate in the circumstances.26

Committee view

Exclusion of heads of jurisdiction

2.27 The committee notes the concerns raised in submissions and by witnesses regarding the exclusion of heads of jurisdictions from the coverage of the Judicial Complaints Bill. However, the committee considers that a number of practical problems exist with the alternative proposal to transfer the responsibility for handling

complaints regarding the possible misconduct or incapacity of a head of jurisdiction to another judge of the court or to a judicial officer of another court. For example, as the Department noted, 'it is inappropriate to have the conduct of a head of jurisdiction subjected to scrutiny within that court by designated persons who occupy positions lower in the judicial hierarchy'.27 Given the importance of these senior judicial officers, the committee considers that, where appropriate, complaints regarding allegations of misconduct or incapacity of a head of jurisdiction should proceed to consideration by the parliament under section 72 of the Constitution, either under the process established by the Parliamentary Commissions Bill, or otherwise as the parliament determines.

24 Submission 5, p. 9.

25 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 5.

26 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 5.

27 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 2.

Exclusion of the High Court

2.28 The Department did not provide the committee with a clear constitutional reason for the exclusion of the High Court from the Judicial Complaints Bill. Nonetheless, the different position of the High Court and the Chief Justice of the High Court is apparent in the fact that, unlike the other federal courts which have been

created by the parliament (which place responsibility for management of the relevant court with the head of jurisdiction), the High Court of Australia Act 1976 provides that the 'High Court shall administer its own affairs'.28 In the view of the committee, any complaints regarding the conduct or capacity of High Court justices should be referred to the parliament to be dealt with under section 72 of the Constitution, either under the process established by the Parliamentary Commissions Bill, or otherwise as the parliament determines.

Guiding criteria for heads of jurisdiction

2.29 The committee acknowledges the points made by witnesses, and in submissions, regarding the benefit of guiding criteria to assist heads of jurisdiction exercise the broad discretion granted to them under the Judicial Complaints Bill. In

the view of the committee, it would be beneficial if each of the federal courts make publicly available a document containing the recognised basic standards expected of judicial officers. These statements of recognised basic standards of judicial conduct could assist members of the public, users of the court, the federal judiciary and the

heads of jurisdiction. In particular, they could assist heads of jurisdiction in exercising their discretion in managing their respective courts. The committee considers, however, that formalising these recognised basic standards is a matter for the courts themselves.

2.30 The committee notes that a number of other comparable jurisdictions, such as Canada, have published codes of conduct or ethical principles which clarify the high standard of conduct expected of judicial officers.29 30 No formal code of conduct or ethical guidelines have been established for the Australian federal judiciary, although

the committee notes that the Council of Chief Justices of Australia and the Australasian Institute of Judicial Administration have published a Guide to

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28 Section 17, High Court of Australia Act 1976.

29 For example, Canadian Judicial Council, Ethical Principles for Judges, 2004, available at: http://www.ci c-ccm, gc .ca/cmsl ib/general/C JC-CCM-Procedures-2010.pdf (accessed 30 May 2012).

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Judicial Conduct.30 This publication is intended to provide 'practical guidance' to all members of the Australian judiciary.30 31

Legal costs

2.31 The committee notes the position of the Judicial Conference of Australia and the Federal Court of Australia regarding reimbursement of legal costs of judicial officers subject to complaints handling procedures. However, the committee does not agree with the argument that public funding of legal costs will necessarily encourage the participation of judicial officers in complaints handling processes. In the view of the committee, it is not appropriate for the Judicial Complaints Bill to provide that the public will always fund the legal costs of judicial officers during complaint handling processes. As the Department noted, the federal courts themselves have the capacity to

reimburse the legal costs of judicial officers where they consider it is appropriate.

Recommendation 1

2.32 The committee recommends that the Courts Legislation Amendment (Judicial Complaints) Bill 2012 be passed.

30 Council of Chief Justices of Australia and Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 2nd ed, 2007, available at: http://www.supremecourt.wa.gov.au/publications/pdf/GuidetoJudicialConduct(2ndEd').pdf (accessed 30 May 2012).

31 Council of Chief Justices of Australia and Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 2nd ed, 2007, p. 1 (Guide). The Guide identifies three objectives of the principles applicable to judicial conduct: to uphold public confidence in the administration of justice; to enhance public respect for the institution of the judiciary; and to protect the reputation of individual judicial officers and of the judiciary. The Guide also identifies three basic principles against which judicial conduct should be tested to ensure compliance with the

above objectives: impartiality; judicial independence; and integrity and personal behaviour (p. 3).

CHAPTER 3

Parliamentary Commissions Bill

Key provisions

3.1 The key provisions of the Parliamentary Commissions Bill enable

parliamentary commissions to be established following a resolution by each House of the Parliament to investigate specified allegations of misbehaviour or incapacity of a specified Commonwealth judicial officer (including a Justice of the High Court).

Preliminary> matters

3.2 Part 1 of the Parliamentary Commissions Bill deals with preliminary matters including the short title, commencement of provisions, objects and definitions. Of particular note, clause 7 provides that the definitions of 'proved', 'misbehaviour' and 'incapacity' have 'the same meaning as in section 72 of the Constitution'.1

Functions, powers and membership of commissions

3.3 Part 2 of the Parliamentary Commissions Bill deals with the establishment, functions, powers and membership of any commissions. Subclause 9(1) provides that a commission is established 'if each House of the Parliament passes, in the same session, a resolution that a Commission is established...to investigate a specified allegation of misbehaviour or incapacity of a specified judicial officer'. Clause 13 provides that a commission consists of three members appointed on nomination of the Prime Minister, following consultation with the Leader of the Opposition, and that at

least one member of each commission must be a former Commonwealth judicial officer or a judge, or former judge, of the supreme court of a state of territory.

Investigations by commissions

3.4 Part 3 of the Parliamentary Commissions Bill deals with investigations by commissions.

3.5 Division 1 of Part 3 contains general provisions relating to how commissions will conduct investigations. In particular, it provides:

" a commission will decide questions in accordance with a majority of its

members (subclause 18(1));

" a commission is not bound by the rules of evidence (subclause 19(1)); and

1 However, the definitions for 'misbehaviour' and 'incapacity' exclude clause 73 of the Parliamentary Commission Bill dealing with misbehaviour or incapacity of commission members. These terms have their 'ordinary meaning' in clause 73.

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" a commission must act in accordance with the rules of natural justice

(subclause 20(1)).

3.6 Division 2 of Part 3 contains rules relating to a commission's investigation, including:

" a commission must conduct investigations as quickly as proper consideration of the matters before the commission permits (clause 22);

" a commission must hold its hearings in public, but may direct that part or all of its hearings be held in private if satisfied that it is desirable to do so (subclause 23(1));

" a commission may hold hearings for the purposes of its investigation (and the rules for such hearings) (clause 24);

" a member of a commission may, by notice, require a person to attend a

hearing of the commission to give evidence or produce documents, or to require a person to produce a specified document or other things to a member of the staff of the commission (subclause 25(1)) (however, subclause 25(5)

exempts a Commonwealth judicial officer or former Commonwealth judicial officer from this requirement);

" the presiding member of a commission may issue an arrest warrant for a

person who fails to appear at a hearing in answer to a notice (clause 27);

" a commission can issue search warrants for any premises where there may be documents or other things connected with the matter the commission is investigating, however this power does not apply to premises occupied by a Commonwealth judicial officer or former Commonwealth judicial officer (clause 28); and

" the Commonwealth is liable to pay for the reasonable costs of legal

representation for a Commonwealth judicial officer being investigated (clause 45).

Reports of commissions

3.7 Division 3 of Part 3 provides that the commission's report must be given to the Speaker of the House of Representatives and the President of the Senate for presentation to the parliament. The commission may also give a separate report in relation to sensitive matters, which is not tabled in the parliament, to the presiding officers. This separate report must be available to senators, members of the House of Representatives and the person in relation to whom the allegation was investigated by the commission (clause 48).

Offence provisions

3.8 Division 4 of Part 3 contains offences in relation to the conduct of

commissions. These offences include:

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" failing to comply with a requirement of a commission (such as a requirement to appear, produce a document or other thing, or be sworn or affirmed);

" offences in relation to private hearings (such as unauthorised presence at such a hearing or publishing material from such a hearing);

" giving false or misleading evidence to a hearing; and

" interfering with witnesses, or otherwise obstructing a commission.

3.9 In addition, subclause 54(1) of Division 4 of Part 3 provides that persons are not excused from producing a document or thing, or answering questions at a commission's hearing on the ground that it would tend to incriminate the person or expose the person to a penalty.

Protection of commission members, witnesses and lawyers

3.10 Division 5 of Part 3 deals with the protections that are provided to those who are connected with a commission (such as members of the commission, and witnesses and lawyers who appear at a hearing of a commission). In particular, clause 67 of Division 5 of Part 3 deals with the treatment of hearings and evidence of a

commission under the Parliamentary Privileges Act 1987 (Privileges Act).

3.11 Clause 67 provides that, for the purposes of section 10 and subsections 16(3), (4) and (6) of the Privileges Act, the proceedings of a commission, the formulation, making or publication of a report, and the report itself, are taken to be proceedings in parliament. Further, under clause 67, evidence before a commission is taken to be evidence before a committee of a House of the Parliament.

Administrative matters

3.12 Part 4 of the Parliamentary Commissions Bill set out the tenns and conditions of the members of a commission in relation to remuneration, resignation, termination and cessation of employment.

3.13 Part 5 of the Parliamentary Commissions Bill outlines the administrative provisions relating to commissions: for example, the engagement of staff, consultants and counsel to assist the commission; the type of information, evidence or documents that may be disclosed by the commission and to whom; and the rules relating to the records of the commission.

Key issues

3.14 Key issues highlighted in submissions in relation to the Parliamentary Commissions Bill include:

" the approach of the Parliamentary Commissions Bill;

" the membership of commissions;

" issues relating to the application of section 72 of the Constitution;

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" judicial incapacity;

" the apparent misplaced emphasis on judicial 'misbehaviour', as opposed to a focus on 'incapacity';

" the accessibility of evidence and findings of any commission;

" the storage of commission separate reports on sensitive matters; and

" lack of clarity regarding parliamentary privilege issues.

Approach of the Parliamentary Commissions Bill

3.15 The Clerk of the Senate, Dr Rosemary Laing, highlighted the 'distinction between the limited powers of [a] commission and what we understand to be the very broad powers of a house of parliament'.2 The Clerk of the Senate noted that the proposed commissions will have various inquiry powers, but that these inquiry powers are limited in respect of Commonwealth judicial officers:

A question that arises here is whether, with these limitations, a Commission could be effective in conducting inquiries into circumstances that are guaranteed to be difficult and controversial. A further question is why the Houses would delegate an investigation to a body with limited powers

when they have full inquiry powers of their own which may be delegated to a committee? These powers include powers to compel witnesses (the only known limitation being members of other Houses).3

3.16 In particular, the Clerk of the Senate outlined that, under section 49 of the Constitution, the Australian Houses of Parliament have the powers, privileges and immunities of the House of Commons at 1901. The Clerk noted that this includes a 'broad power in terms of the ability to summon witnesses and to deal with any noncompliance'.4 While the Clerk holds the view that the Senate has the power to

summon a judge, she acknowledged that this power has never been tested and described the power as 'challengeable'.5

3.17 The Clerk of the Senate also raised the question of whether the establishment of a commission to investigate judicial misbehaviour or incapacity could diminish the protection otherwise provided by a bicameral parliament, noting commentary in Odgers'Australian Senate Practice on this matter:

It may be thought that an inquiry on behalf of both Houses would have something to commend it, but a strong argument could be made out that any inquiiy should always be initiated and followed up by one House, and that

the other House should not become involved at all until it receives a message requesting its concurrence in an address. The two Houses

2 Committee Hansard, 11 May 2012, p. 4.

3 Submission 2, p. 3.

4 Committee Hansard, 11 May 2012, p. 4.

5 Committee Hansard, 11 May 2012, p. 5.

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proceeding separately in this way would give the judge who was the subject of the inquiry the safeguard of two hearings, which is probably what the framers of section 72 intended. Any joint action by the two Houses may remove this safeguard.6

3.18 Reverend Professor Michael Tate AO, a former senator who served on both Senate select committee inquiries into the conduct of the late Justice Murphy, highlighted 'the failure of the Bill to clarify two matters which were left expressly open by the Senate resolution of 6 September 1984 establishing the Senate Select Committee on Allegations Concerning a Judge1. These are: the meaning of the term *misbehaviour1; and the question of the standard of proof of the conduct which could amount to misbehaviour.7 He suggested that, without clarity in relation to these matters, the report of a commission could be 'patchwork and even contradictory * with different members taking different approaches.8

3.19 Father Tate concluded that 'there would be very few instances which would justify setting up this huge apparatus with such an inbuilt tendency to be unhelpful'.9 He preferred the establishment of a parliamentary select committee:

Although being a member of a Select Committee (whether of a particular chamber or jointly) helping the parliament to discharge its function as provided for in Section 72 of the Constitution is to be burdened with a most difficult task, it is not beyond the capacity of parliamentarians to fulfil that role which, after all, would remain simply advisory as would be the case with the Parliamentary Commission. But it may be more likely to carry some weight with other members of the Parliament.10 11

3.20 The Gilbert and Tobin Centre of Public Law compared the commissions proposed under the Parliamentary Commissions Bill with the Judicial Commission of New South Wales. It emphasised that, while the NSW Judicial Commission provides a 'standing body that regularly receives and handles complaints, including by referring them to its Conduct Division[,]...a Parliamentary Commission as empowered by this bill would be for the purpose of addressing specific complaints received by the Parliament in respect of a particular judicial officer'.11

3.21 In its response to questions on notice, the Department emphasised that, 'to date', the parliament has only rarely considered removal of a judicial officer and that establishing a commission when one is required 'is a more practical and efficient

6 Submission 2, p. 9, quoting Department of the Senate, Odgers' Australian Senate Practice, 12th edition, 2008, p. 516.

7 Submission 14, p. 1.

8 Submission 14, p. 2.

9 Submission 14, p. 2.

10 Submission 14, p. 2 (emphasis in original).

11 Submission 3, p. 3.

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approach than a standing Commission'.12 It noted that the proposed commissions could be established quickly and would not cause undue delay with an investigation. The Department also pointed to commentary by the ALRC on this issue:

The ALRC highlighted in its report Managing Justice: A Review of the Federal Civil Justice System the importance of a process within Parliament, rather than creating a commission as a creature of the executive, because of the terms of section 72(ii) of the Constitution...The ALRC suggested that section 72(ii) envisages that debate and decision making about the removal of a federal judge will be matters to be conducted openly by the people's elected representatives, rather than by any part of the executive government (as a judicial commission would be).13

Membership

3.22 As previously outlined, clause 13 of the Parliamentary Commissions Bill provides that membership of a commission will consist of three members appointed on nomination of the Prime Minister, in consultation with the Leader of the Opposition in the House of Representatives. Subclause 13(3) provides that at least one member of each commission must be (a) a former Commonwealth judicial officer; or (b) a judge, or former judge, of the Supreme Court of a state or territory.

3.23 The Adelaide Law School expressed two concerns with clause 13 of the Parliamentary Commissions Bill. First, it argued that the commission should be constituted entirely of former judicial officers:

Judicial officers with experience of the demands of judicial office are in a unique position to assess the performance of a fellow judge. At a preliminary hearing, where the ability to independently evaluate a complaint is called for, the involvement of people without such experience will most likely be unhelpful, and possibly even counter-productive. The

initial hearing is an opportunity for a judicial officer who is subject to a complaint to be judged by his or her peers, which injects an important element of institutional independence into the complaints process.14

3.24 Second, the Adelaide Law School cautioned against the appointment of a serving judge of a state or territory supreme court:

[I]t is foreseeable that in the course of their judicial duties their judgments might be reviewed on appeal by a judicial officer whom they had

investigated. In such an event, the appearance of bias would be

unavoidable. There could also be a danger of the perception that such persons were seeking preferment (however unfounded the accusation may

12 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 3.

13 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 2.

14 Submission 7, p. 7.

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be). We submit, therefore, that clause 13 of the Bill be amended to state that the Commission be constituted of former Commonwealth judicial officers or former judges of State or Territory Supreme Courts.15

3.25 The Department responded to these concerns by stating that the 'ambit of membership is intended to be broad and flexible so that a Commission can consist of members with skills and experience appropriate to the requirements of an investigation'. Further:

If for any reason it is inappropriate for a serving State Judge to be a part of a Commission due to the circumstances of the allegation, the Houses of Parliament are not bound to accept a nomination.

In the rare circumstances described by the University of Adelaide Law School where a federal judge who has been the subject of a Commission's investigation is subsequently called upon to undertake an appellate role in relation to decision by a State judge who was a member of the Commission, the legal system provides mechanisms for parties to litigation to challenge impartiality by reasons of apprehended bias or conflict of interest.16

3.26 The Clerk of the Senate also raised concerns with the process of nomination of members of commissions:

There is...in my view, an unnecessary intrusion by the executive into the appointment of members of a Commission in clause 13 and the choice of presiding member in clause 14, with the requirement that they be nominated by the Prime Minister. While the actual appointment is by resolution of

each House, the need to specify the source of a nomination is not justified in the explanatory memorandum and was not a feature of the 1986 legislation where the choice of members and the presiding member...was solely by resolution of the Houses...How consultation between the chief officer of the executive in the parliament and the chief officer of the alternative executive, both members of only one house, reflects the joint

parliamentary nature of the body is not - and cannot be - justified.17

Issues relating to the application of section 72 of the Constitution

3.27 As outlined in chapter 1, section 72 of the Constitution provides that Justices of the High Court, and justices of other courts created by the parliament, shall not be removed from office 'except by the Governor-General in Council, on address from both Houses of the Parliament in the same session, praying for such removal on the

ground of proved misbehaviour or incapacity'.

15 Submission 7, p. 7 (emphasis in original).

16 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 3.

17 Supplementary Submission 2, pp 1-2.

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3.28 The Clerk of the Senate noted that the object of the

Parliamentary Commissions Bill is 'necessarily limited because the responsibility for action under section 72 remains firmly with the Houses'.18 She highlighted that the Houses of Parliament remain free to appoint their own committees of inquiry in

relation to judicial conduct should they feel the need to do so. Further, the Houses are not bound under the bill to establish a commission and, if the Houses are of a different view, then a commission under the bill cannot be established since it requires a resolution of both Houses.19

3.29 The Clerk of the Senate also noted that 'there are substantial tasks required of the Houses under section 72 that are not addressed by the bill', including matters which arose during the parliamentary consideration of the allegations against Justice Murphy.20 For example:

" the appropriate procedures to be adopted by commissions to determine whether allegations are 'proved' (including application of the rules of evidence, adoption of trial-like procedures and application of a standard of proof);

" whether a judicial officer accused of misbehaviour should enjoy the same rights as the accused in a criminal matter (such as formulation of specific allegations, right to be present at hearings of evidence, right to cross-examine witnesses, right not to be compelled to give evidence and to make an unsworn non-examinable statement).21

No definition of'proved misbehaviour or incapacity'

3.30 The lack of clarity in the wording of section 72 of the Constitution regarding the procedure for removing a federal court judge was highlighted in a number of submissions. For example, the Gilbert and Tobin Centre for Public Law commented:

The apparent simplicity of s 72 is...troubling. The most ambiguous word in the phrase 'proved misbehaviour or incapacity' is 'proved' which clearly suggests both a standard and a process. But on these the Constitution is unhelpfully silent.22

3.31 Similarly, the Adelaide Law School noted that 'the terms "proven

misbehaviour or incapacity" are not defined which is an enduring source of uncertainty regarding the removing of judicial officers'. Further, these terms 'cannot be

18 Submission 2, p. 2.

19 Submission 2, p. 3.

20 Submission 2, p. 4.

21 Submission 2, p. 4.

22 Submission 3, p. 1.

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conclusively addressed by legislative definition, being ultimately a matter of constitutional interpretation'.23

3.32 The Clerk of the Senate expressed the following view:

[Tjhere can be little likelihood of any jurisprudence on the meaning of the term in section 72. This is because it is by no means clear that the removal of a judge on address under section 72 would be reviewable [by the High Court], It appears to have been the intention of the framers that the removal of a judge would not be reviewable...There may well be jurisprudence in other contexts but, ultimately, the meaning of

misbehaviour is a matter for the Houses to determine for themselves.24 *

Senate Standing Orders

3.33 During the inquiry, issues were raised regarding the application of Senate Standing Order 193(3) to motions to establish a commission under the Parliamentary Commissions Bill.23 Senate Standing Order 193(3) provides that senators shall not use offensive words, imputations of improper motives or personal reflections against a judicial officer. In an answer to a question on notice, the Clerk of

the Senate stated:

[I]t is clear that references to matters going to a judge's misbehaviour or incapacity would not be taken to offend standing order 193(3) if made in debate on a substantive motion in relation to the judge's conduct or capacity, including a motion to establish a Commission under the bill.26

3.34 Civil Liberties Australia also expressed its concern that, by using section 72 of the Constitution, 'a future Parliament could mount a campaign to remove judges whose "misbehaviour" is simply the frustration of the Executive's wishes'. As an additional protection in situations where one party controls both Houses of Parliament, it recommended that both Houses of Parliament review their standing orders 'to ensure that a motion proposing the removal of a federal judge can only be moved if seconded by a member of another "party"'.27 In that context, however, the Clerk of the Senate observed that 'there is no historical basis in Australia, the United Kingdom or the United States for an assumption that Parliaments would act to remove judges for political (and, by implication, improper) reasons'.28 The Clerk commented further:

Houses of parliament are well capable of exercising their constitutional duties. They do it every day. As representatives of the people, they represent the highest source of authority in our system of government. To

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23

24

25

26

27

28

Submission 7, p. 2.

Submission 2, p. 5 (emphasis in original).

See, for example, Committee Hansard, 11 May 2012, pp 3 and 21.

Response to question on notice provided by the Clerk of the Senate

Submission 5, p. 4.

Submission 2, p. 4.

on 16 May 2012.

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suggest that they are somehow tainted by politics, I think, is a

misunderstanding of their role and of the separation of powers.29

Judicial incapacity

3.35 The Gilbert and Tobin Centre of Public Law raised issues regarding the apparent emphasis in the Parliamentary Commissions Bill and the Judicial Complaints Bill on judicial misbehaviour. It considered that both bills display a 'preoccupation' with complaints in response to judicial misbehaviour, at the expense of processes designed to proactively address complaints regarding judicial incapacity. It contended that, with over 150 members of the federal judiciary, 'it seems that physical or mental impairment is far more likely to arise than misbehaviour'.30 In particular:

What is striking about both bills is the absence of any provisions that expressly assist either the Parliamentary Commissions that may be established by parliament or the Conduct Committees that may be

established by heads of jurisdiction to investigate the possibility and degree of incapacity arising from the mental health of a judge against whom a complaint has been made...31

3.36 Professor Andrew Lynch from the Gilbert and Tobin Centre of Public Law noted that two recent examples of consideration of judicial performance before the Parliament of New South Wales, both involved 'cases of mental incapacity which was treatable' and the judicial officers concerned 'were able to show that they had taken steps since the complaints that...led to treatment'.32

3.37 In contrast to the approach taken in the bills, the Gilbert and Tobin Centre of Public Law highlighted amendments made in 2006 to the Judicial Officers Act 1986 (NSW) which enable a judge's head of jurisdiction to formally request that the NSW Judicial Commission investigate whether a judicial officer has an impairment

affecting their performance of judicial or official duties.33 Professor Lynch suggested 'that perhaps there needs to be a bit more in the legislation which guides the heads of jurisdiction and also the conduct committee if one is established when the issue that is being complained about appears to stem from incapacity'.34

3.38 The Department responded that as 'the same mechanism for removal of a judge is provided under the Constitution for both proved misbehaviour and incapacity, the intention of the bills is to provide for a flexible process which addresses both

issues of misbehaviour and incapacity'. It noted that the Parliamentary Commissions

29 Committee Hansard, 11 May 2012, p. 1.

30 Submission 3, p. 6.

31 Submission 3, p. 7.

32 Committee Hansard, 25 May 2012, p. 3.

33 Submission 3, p. 8.

34 Committee Hansard, 25 May 2012, p. 2.

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Bill contains 'a number of provisions that support judges who are subject to complaints of incapacity in a way that also protects the privacy of information about a judge's personal health'.33

3.39 The ACT Government pointed out that it has its own 'legislative mechanisms in place for the establishment of a judicial commission...in order to examine complaints' regarding judicial officers.36 The Judicial Commission Act 1994 (ACT) includes a procedure that commissions can undertake in assessing the physical or mental fitness of judicial officers. Section 35 of that Act provides:

Medical examination of judicial officer

If, in the course of examining a complaint, a commission forms the opinion, on reasonable grounds, that the judicial officer concerned may be physically or mentally unfit to exercise efficiently the functions of his or her office, the commission may request the judicial officer to undergo such medical examination as the commission specifies.

If the judicial officer fails to comply with the commission's request, the commission must include in its report...a statement to that effect.

Accessibility of commission evidence and findings

3.40 The Clerk of the Senate noted commentary in Odgers in relation to the Parliamentary Commission established in 1986, which identified 'provisions for hearing evidence in private and for withholding it from the Houses as serious defects which should not be followed in any future cases'.37 In relation to the Parliamentary Commissions Bill:

While the bill requires hearings to be in public, the Commission has a discretion to direct that evidence [is] to be heard in private under certain conditions (cl. 23). There is also a discretion for the Commission to determine whether evidence given in private is subsequently presented for tabling (cl. 48), raising the prospect that evidence will be withheld from those ultimately responsible for determining the issue.38

3.41 The Department responded:

Information which can be included in a separate report would be highly sensitive information. For example, a Commission may include in a separate report, information which is of a highly personal nature relating to a judge. The approach taken in the Bill strikes a balance between providing

effective investigative tools to assist the Parliament and the protection of * * * *

35

36

37

38

Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 7.

Submission 13, p. 1.

Submission 2, p. 7.

Submission 2, p. 7.

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countervailing public interests, including the privacy of individual judicial officers who may be the subject of an investigation.39

Storage of commission separate reports on sensitive matters

3.42 As noted above, clause 48 of the Parliamentary Commissions Bill provides for sensitive matters to be included in a separate report given to the presiding officers and made available for inspection only to senators, members and the investigated person. However, under clause 82 of the Parliamentary Commission Bill, a 'Commission must give a House of Parliament possession of the Commission's records that it no longer needs'. The Clerk of the Senate considered that it is 'not clear' how clause 48 would work in practice and that 'the status of the document is unclear'.40 Further:

I want to know what happens to that when a Presiding Officer finishes in office and comes across the corridor and says to the Clerk, 'What do I do with this document?' It is not something that has been tabled in the parliament. It seems to be in a bit of a limbo.41

3.43 The Clerk noted that under the legislation to repeal the 1986 Parliamentary Commission 'there is provision for custody of that Commission's documents and conditional access to some of them after 30 years'.42

3.44 In response to the concerns raised by the Clerk of the Senate, the Department stated:

It is the intention that all records, including the separate sensitive reports, would be able to be deemed as class A records for the Archives Act so that presiding officers have the discretion about how long they should be kept et cetera. It may well be that the deeming provision has not covered,

effectively, the point about sensitive separate reports43

Parliamentary privilege issues

3.45 The Clerk of the Senate indicated that issues may exist in relation to the application of parts of the Parliamentaiy Privilege Act 1987 to the proceedings and evidence taken by a commission under the Parliamentary Commissions Bill.

3.46 Division 4 of Part 3 of the Parliamentary Commissions Bill creates a number of offences relating to investigations conducted by a commission. Clause 67 provides that proceedings of a commission (including the formulation, making or publication of

39 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 5.

40 Submission 2, p. 7.

41 Committee Hansard, 11 May 2012, p. 2.

42 Submission 2, p. 7. See Parliamentaiy Commission oflnquiiy (Repeal) Act 1986, section 6.

43 Ms Katrina Fairbum, Attorney-General's Department, Committee Hansard, 11 May 2012, p. 25.

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a report) are taken to be proceedings in the Parliament, and that evidence before a commission is taken to be evidence before a committee of a House of Parliament for the purposes of section 10 and subsections 16(3), 16(4) and 16(6) of the

Parliamentaiy Privileges Act 1987.

3.47 As the Clerk of the Senate explained:

Subsections 16(3) and (4) limit the use which may be made of proceedings in parliament in a court or tribunal, while subsection 16(6) relaxes those restrictions to allow for their use in relation to the prosecution of an offence

against the Parliamentary Privileges Act 1987 or an Act establishing a committee (such as the Public Works Committee Act 1969).u

3.48 In relation to clause 67, the EM to the Parliamentary Commissions Bill states:

As a Commission has its own legal status, these provisions are necessary to apply important aspects of the Parliamentary Privileges Act 1987 to a Commission.

Application of subsections 16(3), (4) and (6) of the Parliamentaiy Privileges Act 1987 will prevent the questioning or impeaching of proceedings of a Commission in proceedings of a Commission.44 45

3.49 The Clerk of the Senate commented:

From this explanation, it is not entirely clear to me what the intended effect of the provisions is:

" courts and tribunals cannot use proceedings of a Commission contrary to ss. 16(3) or admit evidence contrary to ss. 16(4)?

" a Commission (which comes under the definition of a tribunal in s. 3 of the [Parliamentaiy Privileges Act 1987]) cannot use the proceedings of another Commission contrary to ss. 16(3) or admit evidence from another Commission contrary to ss. 16(4)?46

3.50 The Department responded to the Clerk's concerns in relation to this issue:

The Bill is designed to prevent the use of the conclusions in a Commission report to prove facts in any subsequent legal proceedings...

Under the Bill, a Commission will have broad powers to access evidence and findings of previous official inquiries and investigations in the course of its investigation (while not limiting the operation of section 16 of the Parliamentaiy Privileges Act 1987). A Commission would be a 'tribunal' within the meaning of section 3 of the Parliamentary Privileges Act 1987. As each Commission would investigate specified allegations about a

specified Commonwealth judicial officer, a Commission will be expected to

44 Submission 2, p. 8.

45 EM, Parliamentary Commissions Bill, p. 40.

46 Submission 2, p. 8.

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gather appropriate evidence in accordance with its own processes and present its own report to assist the Parliament in considering removal of a judge.47

3.51 The Clerk of the Senate also raised the issue of the use of the proceedings of a commission to prosecute the offences in the Parliamentary Commissions Bill:

It is also not clear whether the reference to ss. 16(6) is intended to have the effect of allowing proceedings of a Commission to be used in relation to the prosecution of an offence under Division 4 of the bill against that Commission. If so, it might also need to be deemed that ss. 16(6) applies to a prosecution for an offence against the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act in respect of a particular Commission.48

3.52 The Clerk of the Senate indicated that it may be necessary to *just tie off all the loose ends and apply [subsection 16(6)] to this [A]ct by saying that, in a prosecution against this [A]cf, the proceedings of a Commission can be used.49

3.53 In response to the issues raised by the Clerk of the Senate, the Department noted:

The Bill includes a number of specific offences relating to a Commission's investigation, including unauthorised presence at hearing...

Many of these offences relating to a Commission's investigation are similar to offences provided under the Parliamentary Privileges Act 1987 .50 51

Committee view

3.54 The majority of submissions received by the committee expressed support for the enactment of legislation to clarify the processes for addressing judicial complaints, particularly allegations which may warrant removal of a member of the federal judiciary under section 72 of the Constitution/1 While the committee acknowledges

the limitations in both bills identified by submitters and witnesses during the inquiry, in the view of the committee, the bills represent the right approach to a complex issue which finely balances respect for judicial independence with appropriate judicial accountability. The committee agrees that it is timely for the parliament to establish procedures to consider serious allegations regarding federal judicial officers under the

47 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 5.

48 Submission 2, pp 8-9.

49 Committee Hansard, 11 May 2012, p. 2.

50 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 5.

51 For example, Professor Andrew Lynch, Gilbert and Tobin Centre of Public Law, Committee Hansard, 25 May 2012, p. 1; Liberty Victoria, Submission 8, p. 1.

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process provided in section 72 of the Constitution. The committee concurs with the comments made by the ALRC in 2000 that 'the danger in the present situation is that when a particular case arises, the process itself becomes a major issue, with the potential of the merit or otherwise of the substantive allegations to become lost in the skirmishing'.52 53

3.55 It is important to note that the bills before the committee do not restrict the Houses of Parliament from establishing their own parliamentary inquiries into judicial misconduct or incapacity, if they choose to do so. The committee also recognises that, as highlighted by the former Clerk of the Senate, Mr Harry Evans, 'the removal of a judge under section 72 probably would be a protracted and difficult process, which

would make great impositions upon the operation of the legislature and the executive government'.33 In this context, the committee considers that the Parliamentary Commissions Bill will provide an additional option available to the Houses of

Parliament should they determine that a commission is required to assist them in their responsibilities under section 72 of the Constitution.

Membership of commissions

3.56 The committee agrees with the concerns raised by the Clerk of the Senate that the process for the nomination and appointment of commission members in clause 13 of the Parliamentary Commissions Bill does not adequately reflect the joint parliamentary nature of the commissions. The committee considers that nominations of commission members should also involve the parliamentary presiding officers.

3.57 The committee concludes that it would be more appropriate if the members of a commission were appointed on nomination by the Prime Minister, following consultation with the Leader of the Opposition and the parliamentary presiding

officers. This amendment would reflect the fact that, under the Parliamentary Commissions Bill, an established commission is to be taken to be part of either the Department of the House of Representatives or the Department of the Senate and that a commission provides reports to the parliamentary presiding officers for presentation to the parliament.54

3.58 Further, the committee agrees with the argument made by the

Adelaide Law School against the appointment to commissions of serving judges of a supreme court of a state or territory. While the committee agrees with the Department that conflict of interest issues are likely to be rare, this is insufficient reason not to avoid these potential conflicts.

52 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Litigation System , Report 89, February 2000, pp 239-240.

53 Harry Evans, 'Parliament and the Judges: the removal of federal judges under section 72 of the Constitution', (1987) 2(2) Legislative Studies, p. 29.

54 Clauses 79 and 48, Parliamentary Commissions Bill.

Page 36________________________________________________________________________

Recommendation 2

3.59 The committee recommends that subclause 13(2) of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 be amended to provide that the Prime Minister must consult with the Leader of the Opposition, and both parliamentary presiding officers, before nominating a member of a parliamentary commission.

Recommendation 3

3.60 The committee recommends that subclause 13(3) of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 be amended to exclude serving judges of a supreme court of a state or territory from appointment to a parliamentary commission.

Constitutional issues

3.61 The committee recognises the potential problems created by the lack of detail in section 72 of the Constitution regarding the phrase 'proved misbehaviour or incapacity'. There has been significant commentary on the appropriate meaning of this phrase, and the appropriate approach to a parliamentary investigation of judicial misbehaviour or incapacity. Ultimately, the meaning of 'proved misbehaviour and incapacity' remains for the Houses of Parliament to determine. However, in relation to the Parliamentary Commissions Bill, the ambiguity regarding these terms creates the potential for members of a commission to adopt differing interpretations, and possibly

divergent findings, which is unlikely to be helpful for the Houses of Parliament in their consideration of allegations of judicial misconduct or incapacity.

3.62 In the view of the committee, the Houses of Parliament should either specify the standard of proof required for a commission's investigation and a definition of 'proved misbehaviour and incapacity' to be applied by the members of the commission at the time of the establishment of the commission, or require that the members of a commission agree and use a consistent standard and interpretation of these terms in their investigation and report. The committee notes that the setting of standards and definitions for the commission by the parliament, or a consistent interpretation agreed by members of a commission, would not bind the Houses of Parliament to adopt these

standards and definitions in their own consideration of judicial misbehaviour or incapacity.

Accessibility of commission evidence and findings

3.63 Clause 48 of the Parliamentary Commissions Bill outlines the contents of the reports by commissions, including a possible separate report in relation to sensitive matters which may be made to the parliamentary presiding officers. In relation to this

issue, the committee notes the commentary in Odgers which identifies provisions for 'withholding evidence from the Houses' as one of the 'serious defects' of the Parliamentary Commission of Inquiry in 1986. In the view of the committee, clause 48 is ambiguous and should be clarified to ensure that all the evidence gathered, and findings made, by any commission is either included in the public report

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tabled in the parliament or provided in the separate report on sensitive matters given to the parliamentary presiding officers for access by senators, members and the investigated person. There should be no uncertainty in the provisions of the Parliamentary Commissions Bill which may allow a commission to withhold from

senators and members information or evidence gathered during an investigation into judicial misconduct or incapacity.

Recommendation 4

3.64 The committee recommends that clause 48 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 be amended to make clear that all evidence gathered and findings made by a commission must be included in either the report tabled in the parliament, or in the separate report on sensitive matters provided to the parliamentary presiding officers.

Storage of commission separate report on sensitive matters

3.65 The committee considers that, given the significance of the material likely to be included in a commission's separate report on sensitive matters, greater clarity regarding the long-term storage and custody of this report is required. In that context, the committee notes that section 6 of the Parliamentary Commission of Inquiry

(Repeal) Act 1986 provides significant detail regarding the custody of commission documents. In particular, section 6 provides a time limit of protection, identifies officials responsible for continued custody and protections for the former members and staff of the commission.

Recommendation 5

3.66 The committee recommends that clause 48 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 be amended to explicitly provide guidance in relation to the long-term storage and custody of a commission's separate report on sensitive matters.

Parliamentary privilege

3.67 The protections of parliamentary privilege will be essential to the effective functioning of commissions and their investigations. Parliamentary consideration of allegations regarding judicial misconduct or incapacity may result in peripheral litigation initiated by the investigated person or others. It is also possible that the Houses of Parliament may establish their own separate (but potentially overlapping) parliamentary committee inquiries into the relevant judicial misconduct or incapacity. Those giving evidence to a commission need to be assured that they will be granted protections equivalent to witnesses giving evidence to parliamentary committee inquiries. The evidence gathered by, and the proceedings and reports of, commissions

should be protected by parliamentary privilege. A clear exception should apply for the prosecution of offences against commissions which are set out in the Parliamentary Commissions Bill.

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3.68 In the view of the committee, this issue is not sufficiently addressed in the current drafting of the Parliamentary Commissions Bill. The expertise of the chamber departments should be utilised to clarify these matters before the Parliamentary Commissions Bill is passed. The committee notes that the Department has indicated that '[fjurther consideration will be given to clarifying in legislation the issues raised by the Clerk of the Senate'."5

Recommendation 6

3.69 The committee recommends that clause 67 of the Parliamentary Commissions Bill be amended to clarify the application and protection of parliamentary privilege to the proceedings and reports of parliamentary commissions, and their use in the prosecution of offences against parliamentary commissions.

Recommendation 7

3.70 The committee recommends that, subject to recommendations 2 to 6, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 be passed.

Senator Trish Crossin Chair * 24

55 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 5.

ADDITIONAL COMMENTS BY

LIBERAL SENATORS

1.1 The committee's report makes two recommendations to amend the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 (Parliamentary Commissions Bill) which Liberal Senators consider are not completely justified by the evidence received during the inquiry. In view of the relatively small number of

submissions to the inquiry, our view is that a cautious approach should be taken in relation to these two matters.

Membership of commissions

1.2 Currently, subclause 13(2) of the Parliamentary Commissions Bill provides that commission members are appointed on nomination of the Prime Minister, following consultation with the Leader of the Opposition in the House of Representatives. The majority report recommends that subclause 13(2) be amended to provide that a member of a commission is appointed on the nomination of the Prime Minister, following consultation with the Leader of the Opposition and the parliamentary presiding officers (Recommendation 2).

1.3 None of the witnesses and submitters to the inquiry proposed this particular amendment and Liberal Senators are not convinced this change will necessarily improve the selection of appropriate commission members. The Clerk of the Senate, Dr Rosemary Laing, argued that the nomination and appointment process for commission members provided in the Parliamentary Commissions Bill does not reflect the 'joint parliamentary nature * of the proposed commissions.1 In our view, a

'fig leaf of consultation by the Prime Minister with the parliamentary presiding officers regarding the nomination of commission members is unlikely to sufficiently address this concern.

1.4 In addition, Liberal Senators recognise that, under clause 14, a commission member is only appointed 'if each House of the Parliament passes, in the same session, a resolution to appoint the member'. If appointments to a commission ultimately depend on the agreement of both of the Houses of Parliament, the right to

nominate and the right to be consulted would appear to be peripheral matters of concern. Ultimately, the Houses of Parliament have the power to establish parliamentary commissions to investigate judicial misconduct, regardless of the procedures provided for under the Parliamentary Commissions Bill, and to appoint

commission members as they wish.

1.5 Nonetheless, Liberal Senators are of the view that there is value in the Parliamentary Commissions Bill providing a sensible process for the nomination and

1 Submission 2, Supplementary submission, pp 1-2.

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appointment of commission members. In our view, this requires balancing a number of considerations: first, the expertise and resources of the executive government should be utilised to assess the appropriateness of a wide range of possible commission members; second, the process should ensure that nominated commission members have broad cross-party support; and, third, the process to appoint commission members should reflect the joint parliamentary nature of the proposed commissions. In our opinion, the recommendation in the majority report does not optimally balance these considerations.

Exclusion of state and territory supreme court justices

1.6 Recommendation 3 of the majority report proposes that subclause 13(3) of the Parliamentary Commissions Bill be amended to exclude serving state or territory supreme court justices from appointment to a commission. While Liberal Senators recognise the theoretical perception of bias issues raised during the inquiry by the scholars from the University of Adelaide Law School,2 3 we do not agree that the Parliamentary Commissions Bill should be amended in this way.

1.7 In particular, Liberal Senators consider that the exclusion of serving state and territory supreme court justices would significantly reduce the pool of suitable candidates with high-level judicial experience who could be appointed to a commission. Further, as the Department noted, 'the legal system provides mechanisms for parties to litigation to challenge impartiality by reasons of apprehended bias or conflict of interest'/ The number of instances of federal judicial misbehaviour or incapacity since Federation suggests that the establishment of commissions under the Parliamentary Commissions Bill is likely to be rare. Further, the possibility that a

supreme court justice (who was a former commission member) would come under the appellate consideration of a judicial officer that he or she had investigated is remote. Accordingly, Liberal Senators consider that a complete exclusion of serving state and territory supreme court justices is not warranted.

Senator Gary Humphries Senator Sue Boyce

Deputy Chair

2 Submission 7, p. 7.

3 Response to questions on notice provided by the Attorney-General's Department on 24 May 2012, p. 3.

DISSENTING REPORT BY

SENATOR THE HON BILL HEFFERNAN 1.1 The Courts Legislation Amendment (Judicial Complaints) Bill 2012 (Judicial Complaints Bill) and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 (Parliamentary Commissions Bill) represent a missed opportunity to address the continued uncertainty regarding processes for handling complaints about federal judicial officers. In particular, the events surrounding allegations against the late Justice Lionel Murphy highlighted the practical difficulties of parliamentary consideration of judicial misconduct. The bills before the committee do not address these practical concerns. A standing federal judicial commission to investigate complaints regarding judicial conduct is a better approach.

Judicial Complaints Bill

1.2 As noted by the scholars from the University of Adelaide Law School, the Judicial Complaints Bill does not cover complaints made about Justices of the High Court of Australia (High Court).1 In my view, there is no reason amendments could not be made to allow the Chief Justice of the High Court to assume the responsibilities of a head of jurisdiction for that court, including dealing with complaints about judicial conduct. This gap injudicial accountability is highlighted by the fact that the

High Court does not have a public judicial complaints procedure.

1.3 Another failing of the Judicial Complaints Bill is the broad discretion granted to the head of jurisdiction of each court. As witnesses to the inquiry highlighted, there are no guiding criteria or standards for heads of jurisdiction to follow, or apply, in handling complaints about judicial conduct.1 2 While the Judicial Complaints Bill is intended to promote transparency and public confidence in the courts regarding the processes for dealing with judicial complaints, this approach appears to encourage critical decisions to be made by senior judicial officers about their close working colleagues behind closed doors. A person with a legitimate complaint about the conduct of a judicial officer is unlikely to perceive the scheme created by the Judicial Complaints Bill as increasing public trust in the courts.

1 Submission 7, p. 3.

2 Scholars of the University of Adelaide Law School, Submission 7, p. 5; Professor Andrew Lynch, Gilbert and Tobin Centre of Public Law, Committee Hansard, 11 May 2012, p. 8.

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Parliamentary Commissions Bill

1.4 My key concern regarding the Parliamentary Commissions Bill is that the legislation has been constructed around concerns about judicial independence (rather than assisting the parliament with its constitutional responsibilities) to the extent that the proposed commissions can be described as 'designed to fail'. During the inquiry, the consultation undertaken with the federal courts in developing the legislation was highlighted, but the purpose of the legislation should be to assist the parliament, not the courts.

1.5 I continue to hold serious concerns about the practical issues involved in establishing a commission under the bill. The procedural 'high bar' to establish a commission requires both Houses of Parliament to pass in the same session a resolution to establish a commission to investigate specified allegations of a specified judicial officer. In reality, this is unlikely to occur in the partisan environment of a

parliamentary session where the allegations about a federal judicial officer remain untested and without context. In particular, one side of politics is likely to have been responsible for appointment of the judicial officer concerned. Unfortunately, in my opinion, the temptation to politicise the establishment of a commission is likely to be too great in most cases. Further, an individual member of parliament, intending to move a motion to create a commission, may have considerable difficulty persuading the members of the other House of Parliament of the need for a commission.

1.6 In this regard, the difficult and drawn out process to establish a parliamentary commission to investigate allegations regarding the late Justice Muiphy is instructive. As witnesses to the current inquiry highlighted, the Parliamentary Commissions Bill does nothing to clarify the outstanding issues arising from that parliamentary commission of inquiry.3 For example, the meaning of 'misbehaviour' and the standard of proof to be applied by a commission in its investigation (and its findings) are not clarified in the bill. Nor does the bill provide a process to determine these matters. There is a risk that the importance of the particular case will be lost in the arguments about definitions and procedure. As a former senator with direct experience of these issues, the Reverend Professor Michael Tate AO concluded that 'there would be very

few instances which would justify setting up this huge apparatus with such an inbuilt tendency to be unhelpful'.4

1.7 The appointment provisions of the Parliamentary Commissions Bill also appear to reserve control over the establishment of commissions to the executive. Under the bill, the Prime Minister nominates the members of a commission, in consultation with the Leader of the Opposition. This restrictive appointment process

does not provide an equal role for the Senate in selecting members of a commission

3 For example, see Clerk of the Senate, Submission 2, p. 4.

4 Submission 14, p. 2.

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and ignores the possibility that the Houses of Parliament may prefer to establish a commission irrespective of the views of the Prime Minister of the day.

1.8 The Parliamentary Commissions Bill also handicaps the proposed commissions by giving them no capacity to summon judicial officers (or former judicial officers) to give evidence, or the ability to issue search warrants on the premises of these judicial officers (or former judicial officers). While constitutional justifications were raised in relation to this matter, it is clear that these restrictions

would inhibit the conduct of investigations by commissions and limit the value of their findings.

1.9 I am also concerned about the use of evidence taken by a commission (which is protected by parliamentary privilege under the Parliamentary Commissions Bill) in subsequent legal proceedings. In the criminal trial against the late Justice Murphy, witnesses were questioned and cross-examined on the evidence they had provided to earlier Senate select committees.3 Subsequently, however, the Parliamentaiy Privileges Act 1987 was passed, to clarify:

In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of *

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.5 6

1.10 It is clear that there has not been sufficient consideration of parliamentary privilege issues in the development of the Parliamentary Commissions Bill, and this is reflected in the recommendations contained in the committee majority's report. My concern relates to the impact on subsequent legal proceedings against a judicial officer (or former judicial officer) in circumstances where commission evidence is protected under parliamentary privilege, if a judicial officer commits a serious criminal offence, and is removed from office under section 72 of the Constitution

(following an extensive investigation by a commission), the protections of parliamentary privilege should not operate to essentially shield that judicial officer in subsequent legal proceedings. Will a removed former judicial officer be able to claim that he cannot receive a fair trial because potentially exculpatory evidence is contained in a commission's separate report on sensitive matters? The interaction between parliamentaiy privilege and the use of commission evidence in subsequent legal

5 Department of the Senate, Odgers' Australian Senate Practice, 13lh edition, 2012, p. 46-48.

6 Subsection 16(3).

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proceedings does not seem to be adequately addressed in either the provisions of the bill or the explanatory memorandum.

1.11 Finally, the Gilbert and Tobin Centre of Public Law indicated to the committee that instances of judicial incapacity are more likely to occur than those of judicial misbehaviour.7 However, this is not reflected in the Parliamentary Commissions Bill. For example, there is no provision under the Parliamentary

Commissions Bill for a commission to request that a judicial officer voluntarily undertake a confidential medical assessment.

Conclusion

1.12 My prediction is that, when the parliament is next required to consider a serious complaint about a federal judicial officer, the Parliamentary Commissions Bill will create more problems than it solves. I also do not consider that the

Judicial Complaints Bill provides a consistent, clear or an effective system for handling complaints regarding federal judicial officers. Accordingly, I oppose the passage of both bills.

1.13 We are all human, with human flaws and vulnerabilities, even federal judicial officers. Appropriate mechanisms for judicial accountability are needed to balance the protections of judicial independence. Section 72 of the Constitution provides a role for the parliament to oversight the behaviour and capacity of the federal judiciary.

However, the parliament is not well-equipped to investigate allegations, and will usually require assistance to fulfil this important responsibility. In my view, the best model to assist the parliament in this constitutional duty is a standing judicial

commission, modelled on the successful Judicial Commission of New South Wales. This was the model recommended by the Senate Legal and Constitutional Affairs References Committee in 2009.8

1.14 This approach would provide for a permanent, independent and established structure to investigate judicial complaints which would provide certainty for complainants and the judiciary, and would be capable of developing expertise in conducting investigations into the conduct of judicial officers over time. Such a standing judicial commission would also allow for other functions to be undertaken in order to support the federal judiciary, such as judicial education services and measures to improve consistency in sentencing. Importantly, a standing commission would ensure an unhelpful political contest is avoided each time an ad hoc commission is required to be established to investigate an allegation of judicial misbehaviour or incapacity.

7 Submission 3, p. 6.

8 Senate Legal and Constitutional Affairs References Committee, Australia's Judicial System and the Role of Judges, December 2009, p. 95.

120

___________________________________________ _____ ____*π __________________ Page 45

Recommendation 1

That the Senate not pass the Courts Legislation Amendment (Judicial Complaints) Bill 2012 and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012.

Recommendation 2

That the Australian Government establish a federal judicial commission modelled on the Judicial Commission of New South Wales.

Senator the Hon Bill Heffernan Liberal Senator for New South Wales

121

122

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

APPENDIX 1

SUBMISSIONS RECEIVED

Submitter

Federal Court of Australia

Dr Rosemary Laing, Clerk of the Senate

Gilbert + Tobin Centre of Public Law

The Judicial Conference of Australia

Civil Liberties Australia

Professor Sharyn Roach Anleu and Professor Kathy Mack

Scholars from the University of Adelaide Law School

Liberty Victoria

Law Council of Australia

Justice for Children Australia

Mr W Pearson

Ms Denise King

ACT Government

Reverend Professor Michael Tate AO

Confidential

123

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ADDITIONAL INFORMATION RECEIVED

1 Extract from Odgers' Australian Senate Practice', 13th edition, tabled by the Clerk of the Senate at public hearing on 11 May 2012

2 Response to question on notice provided by the Clerk of the Senate on

16 May 2012

3 Response to questions on notice provided by the Attorney-General's

Department on 24 May 2012

124

APPENDIX 2

WITNESSES WHO APPEARED BEFORE THE COMMITTEE Canberra, 11 May 2012

FAIRBURN, Ms Katrina, Principal Legal Officer, Judiciary and Court Structure Team, Attorney-General's Department

LA1NG, Dr Rosemary, Clerk of the Senate

LE MIRE, Dr Suzanne, Senior Lecturer, Adelaide Law School, University of Adelaide

LYNCH, Professor Andrew, Director, Gilbert and Tobin Centre of Public Law

SMRDEL, Dr Albin, Assistant Secretary, Federal Courts Branch, Attorney-General's Department

WILLIAMS, Professor John, Dean of Law, Adelaide Law School, University of Adelaide

Canberra, 25 May 2012

LYNCH, Professor Andrew, Director, Gilbert and Tobin Centre of Public Law

125

126

The Senate

Legal and Constitutional Affairs

Legislation Committee

Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012 [Provisions]

November 2012

© Commonwealth of Australia

ISBN: 978-1-74229-719-4

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

128

MEMBERS OF THE COMMITTEE

Members

Senator Patricia Crossin, Chair, ALP, NT

Senator Gary Humphries, Deputy Chair, LP, ACT

Senator Sue Boyce, LP, QLD

Senator Mark Fumer, ALP, QLD

Senator Louise Pratt, ALP, WA

Senator Penny Wright, AG, SA

Secretariat

Ms Julie Dennett

Ms Sandra Kennedy

Ms Hannah Dibley

Committee Secretary

Principal Research Officer

Administrative Officer

Suite S1.61

Parliament House

Telephone: (02) 6277 3560

Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: Iegcon.sen@aph.gov.au

129

130

TABLE OF CONTENTS

MEMBERS OF THE COMMITTEE .................................................................... iii

RECOMMENDATION.............................................................................................vii

CHAPTER 1 ....................................................................................................................1

Introduction..................................................................................................................1

Purpose of the Bill......................................................................................................1

Conduct of the inquiry...............................................................................................2

CHAPTER 2 ....................................................................................................................3

Key issues.......................................................................................................................3

Schedule 1 - Serious drugs........................................................................................3

Schedule 2 - Identity crime and air travel ................................................................ 5

Schedule 3 - Other measures....................................................................................6

Committee view..........................................................................................................8

APPENDIX 1.............................. 9

SUBMISSIONS RECEIVED......................................................................................9

131

132

RECOMMENDATION

Recommendation 1

2.26 The committee recommends that the Senate pass the Bill.

vii 133

134

CHAPTER 1

Introduction

1.1 On 10 October 2012, the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012 (Bill) was introduced into the House of Representatives by the Attorney-General, the Hon. Nicola Roxon MP.1 On 11 October 2012, the Senate referred the provisions of the Bill to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by

19 November 2012.1 2 The House of Representatives passed the Bill on

30 October 20123 and, on 31 October 2012, the Bill was introduced into the Senate.4 5

Purpose of the Bill

1.2 The Bill proposes amendments to the Australian Federal Police Act 1979, the Crimes Act 1914, the Crimes (Superannuation Benefits) Act 1989, the Criminal Code Act 1995 (Criminal Code), the Customs Act 1901, and the Law Enforcement Integrity Commissioner Act 20062

1.3 The Bill is comprised of three schedules which seek to strengthen and improve existing criminal laws and justice arrangements in the Commonwealth sphere:

" Schedule 1 aims to strengthen the Commonwealth's serious drug offences framework, by transferring the list of substances to which serious dmg offences apply from the Criminal Code to regulations;6

" Schedule 2 expands the existing identity crime provisions and will establish new offences and powers relating to air travel and the use of false identities;7 and

" Schedule 3 of the bill proposes amendments to:

(i) clarify the functions of the Law Enforcement Integrity

Commissioner;

(ii) increase the value of the pecuniary penalty unit for Commonwealth criminal offences from $110 to $170; and

1 House of Representatives Votes and Proceedings, No. 137, 10 October 2012, p. 1854.

2 Journals of the Senate, No 117, II October 2012, pp 3117-3118.

3 House of Representatives Votes and Proceedings, No. 140, 30 October 2012, p. 1922.

4 Journals of the Senate, No. 120, 31 October 2012, pp 3225-3226.

5 Explanatory Memorandum (EM), p. 1.

6 EM, p. 16.

7 EM, p. 37.

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Page 2

(iii) ensure superannuation orders in cases of employee corruption in the Australian Public Service are treated consistently.8

1.4 The Attorney-General explained that the measures:

...will ensure that the Commonwealth criminal law remains up to date and effective, particularly in combating serious and organised crime and whitecollar crime.9

Conduct of the inquiry

1.5 The committee advertised the inquiry in The Australian on 24 October 2012, and wrote to a number of stakeholders inviting submissions by 26 October 2012. Details of the inquiry, including the Bill and associated documents, were made available on the committee's website at www.aph.gov.au/senate legalcon.

1.6 The committee received three submissions, which are listed at Appendix 1. No public hearings were held for the inquiry.

8 The Hon Nicola Roxon MP, Attorney-General, Second Reading Speech, House of Representatives Hansard, 10 October 2012, pp 11765-11766; EM, pp 63, 64.

9 The Hon Nicola Roxon MP, Attorney-General, Second Reading Speech, House of Representatives Hansard, 10 October 2012, p. 11766.

136

CHAPTER 2

Key issues

2.1 The submissions which the committee received for its inquiry all expressed support for the Bill and did not identify any issues of concern in relation to the Bill *s schedules. For this reason, the committee has contained its comments to those aspects

of the Bill addressed in the submissions received. The Explanatory Memorandum (EM) to the Bill sets out the proposed amendments in detail.

Schedule 1 - Serious drugs

2.2 The EM to the Bill explains that the purpose of Schedule 1 of the Bill is to

'strengthen the Commonwealth's serious drug offences framework.'1 The Bill seeks to do this by amending Chapter 9 of the Criminal Code Act 1995 (Criminal Code) and making consequential amendments to the Customs Act 1901.

2.3 The changes set out in Part 1 of Schedule 1 will amend Part 9.1 of the

Criminal Code in relation to serious drugs by amending Divisions 300, 301, 307, 308, and 314 of Part 9.1.

Part 1 of Schedule 1 -Amendments

Division 314 of the Criminal Code

2.4 Existing Division 314 of the Criminal Code lists by name and sets out

quantities of'controlled' and 'border controlled' drugs, plants and precursors. Item 19 of Schedule 1 of the Bill will repeal Division 314, and the items and quantities listed in Division 314 will be moved into the Criminal Code Regulations 2002.1 2

2.5 The EM explains that transferring these listings into regulations is

'appropriate' as it will allow:

...the Government to respond swiftly to proscribe new substances that arise as the illicit drugs market evolves. In addition, it will permit new and emerging substances to be included in the regulations more quickly than listing substances in the Criminal Code, where an amendment to the list requires a legislative amendment.3

Division 301 of the Criminal Code

2.6 Existing Division 301 of the Criminal Code enables the Minister to make interim regulations, for a period of twelve months; and emergency determinations, for

1 Explanatory Memorandum (EM), p. 16.

2 EM, p. 34.

3 EM, p. 34.

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a period of 28 days, in relation to certain substances.4 This power is currently necessary as the substances and quantities that are 'controlled' or 'border controlled' are identified specifically by name and quantity, in the provisions of Division 314. The repeal of Division 314, as proposed by the Bill, will require that existing Division 301 be repealed and replaced with a new division.

2.7 Proposed new Subdivision C of Division 301 (serious drugs and precursors: emergency determinations)5 will improve the existing mechanisms which enable the Minister to make an emergency determination in certain circumstances.6 The emergency determination mechanism:

...aims to increase public safety by ensuring that substances with unknown or unidentified harms can be prohibited in a responsive manner, until such time as an appropriate assessment has been made.7

2.8 Under the existing provisions, emergency determinations are only effective for a period of 28 days, or such shorter period as specified.8 The proposed amendments will extend this time period to 12 months, with the possibility for extension to 18 months.9

2.9 The EM explains that change is required as the existing timeframe has proven insufficient to obtain and assess evidence on which to base decisions and that increasing the period of time for which emergency determinations remain effective will:

...allow for expert analysis in determining the harms of a substance and, on the basis of this assessment, for an informed decision to be made about whether it should be listed indefinitely in the regulations.10

Divisions 307 and 308 of the Criminal Code

2.10 Items 17 and 18 of Schedule 1 of the Bill will amend Divisions 307 and 308 (import-export and possession offences) of the Criminal Code to provide an exemption from criminal offences where border controlled drugs or border controlled plants are the subject of an emergency determination:

4 Criminal Code Act 1995, sections 301.1-301.5 (interim regulations) and sections 301.6-301.11 (emergency declarations).

5 Proposed new sections 301.13-301.17 (item 16 of Schedule 1 of the Bill).

6 The Hon Nicola Roxon MP, Attorney-General, Second Reading Speech, House of Representatives Hansard , 10 October 2012, p. 11764.

7 EM, p. 29.

8 EM, p. 31. An extension of a further 28 days is currently available in certain circumstances with respect to emergency determinations.

9 Proposed new section 301,16 (item 16 of Schedule 1 of the Bill).

10 EM, p. 32.

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On the basis that an emergency determination can be made in relation to a substance where the known risks may not yet be fully substantiated and that may later be found to have no known harms, it is not appropriate to subject an individual to criminal punishment on the basis of possessing a small quantity of the substance.11

Comments by submitters in respect of Schedule 1 of the Bill

2.11 Of the three submissions received by the committee, two commented on Schedule 1 of the Bill to express support for the proposed amendments.

2.12 The Australian Crime Commission (ACC) submitted:

The ACC fully supports provisions which ensure that the Commonwealth's serious drug offences framework can quickly respond to new and emerging substances. As such, the ACC supports...[the Bill]...and believes this approach will strengthen the Commonwealth's ability to adapt to and address the changing illicit drug markets.11 12

2.13 Similarly, in respect of Schedule 1 of the Bill, the Commonwealth Director of Public Prosecutions (CDPP) advised:

The CDPP sees benefit in these amendments which will ensure the Commonwealth's serious drug offences framework remains up to date and is better able to respond to new and emerging substances.13

Schedule 2 - Identity crime and air travel

2.14 Schedule 2 of the Bill sets out amendments that seek to expand existing identity crime offences in Division 372 of Part 9.5 of the Criminal Code, and provide for new offences and powers relating to air travel and the use of false identities in both

the Criminal Code and Part 1AA of the Crimes Act 1914 (Crimes Act).14

2.15 Submissions to the inquiry did not raise any concerns in relation to the amendments proposed in Schedule 2 of the Bill. The ACC stated its support for the introduction of offences relating to identity crime and air travel:

The ACC welcomes and supports the creation of new offences relating to air travel and the use of false identities. The ACC has previously supported this measure and continues to be supportive of measures that harden the aviation environment against exploitation by serious and organised crime groups.15

11 EM, pp 33-34.

12 Submission 3, p. 2.

13 Submission 2, p. 1.

14 EM, p. 37.

15 Submission 3, p. 3.

139

Page 6

Schedule 3 - Other measures

2.16 Schedule 3 of the Bill is comprised of three parts which propose amendments to the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act), the Crimes Act, the Australian Federal Police Act 1979 (AFP Act) and the Crimes (Superannuation Benefits) Act 1989 (CSB Act).16

Part 1 of Schedule 3 - Integrity Commissioner functions

2.17 Part 1 of Schedule 3 of the Bill proposes minor amendments to the LEIC Act that seek to strengthen Commonwealth public sector integrity by:

" clarifying the functions of the Integrity Commissioner in relation to the detection and prevention of corruption (items 1-2 of Schedule 3);17 18 and

" broadening the Integrity Commissioner's scope to consider corruption issues (items 4-5 of Schedule 3).,s

Part 2 of Schedule 3 - Penalty units

2.18 The Crimes Act currently specifies the monetary value of a penalty unit incurred for the commission of a Commonwealth criminal offence. The present value of the penalty unit is $110.19 Part 2 of Schedule 3 of the Bill seeks to increase the current monetary value of a penalty unit from $110 to $170 and introduce a

requirement that the value of the penalty unit be reviewed every three years to ensure the value accommodates changes in the consumer price index (items 7-8 of Schedule 3).20

2.19 In its submission to the inquiry, the ACC outlined its support for Part 2 of Schedule 3 of the Bill:

The ACC welcomes and supports the triennial review of the amount of a penalty unit as is prudent practice to ensure the deterrent factor remains high.21

Part 3 of Schedule 3 - Superannuation orders

2.20 Part 3 of Schedule 3 of the Bill sets out amendments to the CSB Act and the AFP Act in relation to superamiuation orders. These Acts contain provisions that ensure that if a public servant is convicted of corruption and sentenced to 12 or more

16 EM, p. 63.

17 EM, p. 65.

18 EM, pp 65-66.

19 EM, p. 67.

20 EM, p. 67.

21 Submission 3, p. 3.

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months imprisonment, any employer funded superannuation benefits that are payable, or have been paid to them, are forfeited or recovered.22 According to the EM, the proposed amendments (items 10-13 of Schedule 3) will clarify that a superannuation order for forfeiture or recovery of employer funded superannuation benefits in these circumstances can be made in relation to employer funded superannuation benefits accrued 'during all periods of Commonwealth employment, not just the period of employment in which the corruption offence was committed'.23

Comments by submitters in respect of Schedule 3 of the Bill

2.21 In its submission, the Australian Commission for Law Enforcement Integrity (ACLEI) expressed support for Part 1 of Schedule 3 of the Bill (concerning the functions of the Integrity Commissioner):

[These provisions] will clarify and give prominence to the complementary roles of the Integrity Commissioner, namely detecting, investigating and preventing corrupt conduct in the agencies in the LEIC Act jurisdiction.24

2.22 ACLEI also indicated its support for the amendments that seek to broaden the Integrity Commissioner's ability to consider corruption matters, stating that the amendment to enable the Minister 'to refer an allegation of corrupt conduct relating to an ACLEI staff member to the Integrity Commissioner for investigation' will provide the Minister with additional flexibility. Further:

No matter who investigates an ACLEI corruption issue, the LEIC Act contains provisions to ensure the transparency of such investigations.25

2.23 In respect of item 5 of Schedule 3, which proposes an amendment to enable the Integrity Commissioner to delegate to an Assistant Integrity Commissioner the power to hold a public hearing in relation to an allegation of corruption, ACLEI stated:

ACLEI considers that the proposed amendment to section 219 of the LEIC Act would provide operational flexibility, were it required.26

2.24 ACLEI explained that, in such circumstances, the Integrity Commissioner would remain responsible for the outcomes of the public hearing.27

22 EM, p. 63.

23 EM, p. 64.

24 Submission 1, p. 5.

25 Submission 1, p. 6.

26 Submission 1, p. 7.

27 Submission 1, p. 7.

Page 8

Committee view

2.25 The committee is supportive of the Bill and considers that the proposed amendments it contains will ensure that Australia *s criminal laws are responsive in addressing organised crime, corruption and white collar crime, and in protecting the public from the threats that those activities present. In particular, the committee considers that the Bill will ensure that the Commonwealth's serious drug offences framework is able to respond efficiently to the emergence of new drug threats in the community, and will substantially strengthen the current regime relating to identity crime offences.

Recommendation 1

2.26 The committee recommends that the Senate pass the Bill.

Senator Trish Crossin Chair

142

APPENDIX 1

SUBMISSIONS RECEIVED

Submission NumberSubmitter

1 Australian Commission for Law Enforcement Integrity

2 Commonwealth Director of Public Prosecutions

3 Australian Crime Commission

143

144

The Senate

Legal and Constitutional Affairs

Legislation Committee

Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 [Provisions]

September 2012

© Commonwealth of Australia

ISBN: 978-1-74229-689-0

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

MEMBERS OF THE COMMITTEE

Members

Senator Patricia Crossin, Chair, ALP, NT

Senator Gary Humphries, Deputy Chair, LP, ACT

Senator Sue Boyce, LP, QLD

Senator Mark Turner, ALP, QLD

Senator Louise Pratt, ALP, WA

Senator Penny Wright, AG, SA

Substitute Member

Senator Sarah Hanson-Young, AG, SA replaced Senator Penny Wright, AG, SA for the inquiry into the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012

Secretariat

Ms Julie Dennett

Ms Ann Palmer

Ms Hannah Dibley

Committee Secretary

Inquiry Secretary

Administrative Officer

Suite SI.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

148

TABLE OF CONTENTS

MEMBERS OF THE COM M ITTEE....................................................................iu

RECOMMENDATIONS..........................................................................................vii

CHAPTER 1...................................................................................................................1

Introduction.................................................................................................................1

Referral of inquiry.....................................................................................................1

Purpose of the Bill.....................................................................................................1

Consultation.............................................................................................................. 2

International legal framework..................................................................................2

Conduct of the inquiry..............................................................................................3

Acknowledgement.................................................................................................... 3

Note on references.................................................................................................... 4

CHAPTER 2 .................................................................................................................. 5

Key provisions of the Bill........................................................................................... 5

Division 270 - Slavery and slavery-like conditions ................................................ 5

Division 271 - Trafficking in persons and debt bondage ....................................... 9

Reparations for victims ........................................................................................... 10

CHAPTER 3 ................................................................................................................ 11

Key issues....................................................................................................................11

Definition of'coercion' ........................................................................................... 12

Forced marriage offences....................................................................................... 13

Omission of a servile marriage offence..................................................................15

Slavery or servitude within intimate relationships ................................................ 16

'Reasonable person test' in the servitude and forced labour offences...................18

General consent provisions ..................................................................................... 19

'Harbouring a victim' offence.................................................................................21

149

23 Reparations for victims and the need for a federal compensation scheme

Broader support strategies for victims of people trafficking.................................27

Committee view....................................................................................................... 32

Support for the Bill..................................................................................................33

Victim support............................................................. 34

ADDITIONAL COMMENTS BY COALITION SENATORS ...................... 37

APPENDIX 1................................................................................................................39

SUBMISSIONS RECEIVED....................................................................................39

APPENDIX 2 ................................................................................................................ 43

WITNESSES WHO APPEARED BEFORE THE COMMITTEE....................43

vi

150

RECOMMENDATIONS

Recommendation 1

3.84 The committee recommends that the Attorney-General's Department revise and reissue the Explanatory Memorandum to clarify that the proposed slavery and servitude offences in the Bill apply to circumstances of slavery and servitude within intimate relationships (including marriage and de facto relationships).

Recommendation 2

3.88 The committee recommends that the Australian Government further investigate the establishment of a federal compensation scheme for victims of slavery and people trafficking.

Recommendation 3

3.95 The committee recommends that the Australian Government review the People Trafficking Visa Framework and the Support for Victims of People Trafficking Program, and consider establishing an ongoing visa and access to victim support mechanism which is not conditional on a victim of people trafficking providing assistance in the criminal justice process.

Recommendation 4

3.96 Subject to Recommendation 1, the committee recommends that the Senate pass the Bill.

v ii

151

152

CHAPTER 1

Introduction

Referral of inquiry

1.1 On 19 June 2012, the Senate referred the provisions of the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 (Bill) to the Senate Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 13 September 2012.1

1.2 The Bill was introduced into the House of Representatives on 30 May 2012 by the Attorney-General, the Hon Nicola Roxon MP.1 2 The House of Representatives passed the Bill on 22 August 2012,3 and the Bill was introduced into the Senate on the same day.4

Purpose of the Bill

1.3 Divisions 270 and 271 of the Criminal Code Act 1995 (Cth) (Criminal Code) currently deal with the offences of slavery, sexual servitude, deceptive recruiting, people trafficking and debt bondage.

1.4 According to the Explanatory Memorandum (EM) to the Bill, there are limitations to the current provisions:

[ in v es tig atio n s h av e r ev ealed th at p eo p le tr af f ick in g s y n d icates ar e

ch an g in g th eir mo d e o f o p er atio n to av o id d etectio n , an d if d etected , to

mak e elemen ts o f th e o f f en ce h ar d er to p r o v e to th e s tan d ar d th at s atis f ies

th e co u r t an d a ju r y . I n ad d itio n to th is s h if t in mo d e o f o p er atio n ,

A u s tr alian au th o r ities h av e id en tif ied a d iv er s if icatio n o f th e in d u s tr ies in to

w h ich v ictims ar e tr af f ick ed , s u ch as th e h o s p itality in d u s tr y . 5

1.5 The Bill will amend Divisions 270 and 271 of the Criminal Code 'to ensure that the people trafficking, slavery and slavery-like offences set out in the Criminal Code comprehensively criminalise all forms of slavery and people trafficking'.6

1 J o u r n als o f th e S en ate, N o . 9 2 - 1 9 J u n e 2 0 1 2 , p p 2 5 2 8 - 2 5 2 9 .

2 H o u s e o f Rep r es en tativ es , V o tes an d P r o ceed in g s , N o . 1 1 1 - 3 0 M ay 2 0 1 2 , p . 1 5 2 1 .

3 H o u s e o f Rep r es en tativ es , V o tes an d P r o ceed in g s , N o . 1 2 6 - 2 2 A u g u s t 2 0 1 2 , p . 1 7 2 9 .

4 J o u r n als o f th e S en ate, N o . 1 0 5 - 2 2 A u g u s t 2 0 1 2 , p . 2 8 5 6 .

5 Ex p lan ato r y M emo r an d u m ( EM ) , p . 1 .

6 EM , p . 1 .

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Page 2

1.6 In addition, the Bill will amend section 2IB of the Crimes Act 1914 (Cth) (Crimes Act) - which deals with reparation for offences - to improve the availability of reparation orders for victims of Commonwealth offences, including slavery and people trafficking.7

Consultation

1.7 The introduction of the Bill follows an extended period of consultation by the Australian Government, including the release of two discussion papers in November 2010:

" a Discussion Paper on Forced and Servile Marriage;8 and

" a Discussion Paper on the Criminal Justice Response to Slavery and People Trafficking; Reparation; and Vulnerable Witness Protections (Slavery and People Trafficking Discussion Paper).9

1.8 An Exposure Draft of the Bill was also released for comment in

November 2011.10 11

International legal framework

1.9 Australia is a party to a number of key international instruments which cover the issues of people trafficking and slavery.11

1.10 Under the United Nations Convention against Transnational Organised Crime (UNTOC) and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), parties are required

7 Th e H o n N ico la Ro x o n M P , House Hansard, 3 0 M ay 2 0 1 2 , p . 6 2 2 8 .

8 A tto r n ey - G en er al' s D ep ar tmen t, Discussion Paper: Forced and Servile Marriage ,

N o v emb er 2 0 1 0 , av ailab le at:

h ttp ://w w w . ag . g o v . au /Co n s u ltatio n s r ef o r ms an d r ev iew s /P ag es /A r ch iv e/Co n s u ltatio n o n f o r ced an

d s er v ilemar r iag e. as p x ( acces s ed 1 5 A u g u s t 2 0 1 2 ) .

9 A tto r n ey - G en er al' s D ep ar tmen t, Discussion Paper: The Criminal Justice Response to Slavery

and People Trafficking; Reparation; and Vulnerable Witness Protections, N o v emb er 2 0 1 0 , ( A tto r n ey - G en er al' s D ep ar tmen t' s D is cu s s io n P ap er o n S lav er y an d P eo p le Tr af f ick in g ) ,

av ailab le at

h ttp ://w w w . ag . g o v . au /Co n s u ltatio n s r ef o r ms an d r ev iew s /P ag es /Th eCr imin alJ u s ticer es p o n s eto s la

v er v an d p eo p letr af f ick in g r ep ar atio n s an d v u ln er ab lew itn es s p iO tectio n s - as p x

( acces s ed 1 5 A u g u s t 2 0 1 2 ) .

1 0 A tto r n ey - G en er al' s D ep ar tmen t, Ex p o s u r e D r af t - Cr imes Leg is latio n A men d men t ( S lav er y ,

S lav er y - lik e Co n d itio n s an d P eo p le Tr af f ick in g ) Bill 2 0 1 2 , av ailab le at:

h ttp ://w w w . ag . g o v . au /P eo p letr af f ick in g /P ag es /Ex p o s u r e- d r af t * leg is lativ e- amen d men ts - to -

A u s tr alia% 2 7 s - p eo p le- tr af f ick in g - an d - s lav er y - o f f en ces . as p x ( acces s ed 1 5 A u g u s t 2 0 1 2 ) .

1 1 Th e in f o r matio n in th is s ectio n is tak en f r o m th e A tto r n ey - G en er al' s D ep ar tmen t' s D is cu s s io n

P ap er o n S lav er y an d P eo p le Tr af f ick in g , p . 7 , an d A n ti- S lav er y A u s tr alia, Submission 28,

p p 3 - 4 .

to establish criminal offences for trafficking in persons. The Trafficking Protocol sets out the definition of'trafficking in persons':

' Tr af f ick in g in p er s o n s ' s h all mean th e r ecr u itmen t, tr an s p o r tatio n , tr an s f er ,

h ar b o u r in g o r r eceip t o f p er s o n s , b y mean s o f th e th r eat o r u s e o f f o r ce o r

o th er f o r ms o f co er cio n , o f ab d u ctio n , o f f r au d , o f d ecep tio n , o f th e ab u s e

o f p o w er o r o f a p o s itio n o f v u ln er ab ility o r o f th e g iv in g o r r eceiv in g o f

p ay men ts o r b en ef its to ach iev e th e co n s en t o f a p er s o n h av in g co n tr o l o v er

an o th er p er s o n , f o r th e p u r p o s e o f ex p lo itatio n . Ex p lo itatio n s h all in clu d e,

at a min imu m, th e ex p lo itatio n o f th e p r o s titu tio n o f o th er s o r o th er f o r ms

o f s ex u al ex p lo itatio n , f o r ced lab o u r o r s er v ices , s lav er y o r p r actices s imilar

to s lav er y , s er v itu d e o r th e r emo v al o f o r g an s . 12

1.11 Australia is also a party to the International Convention to Suppress the Slave Trade and Slavery , and to the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery , which contain definitions of slavery and slavery-like practices.

1.12 Obligations that Australia has under treaties which define and prohibit forced labour are also relevant in the context of slavery and people trafficking.13

Conduct of the inquiry

1.13 The committee advertised the inquiry in The Australian on 4 July 2012. Details of the inquiry, including links to the Bill and associated documents, were placed on the committee's website at www.aph.gov.au/senate legalcon. The committee also wrote to a number of organisations and individuals, inviting

submissions by 31 July 2012. Submissions continued to be accepted after that date.

1.14 The committee received 40 submissions, which are listed at Appendix 1. All public submissions were published on the committee's website.

1.15 The committee held a public hearing on 29 August 2012 at Parliament House in Canberra. A list of witnesses who appeared at the hearing is at Appendix 2, and the Hansard transcript is available through the committee's website.

Acknowledgement

1.16 The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

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12 Article 3(a).

13 For example: International Covenant on Civil and Political Rights∑, International Covenant on Economic, Social and Cultural Rights', International Labour Organisation Convention No. 29 on Forced or Compulsory Labour, International Labour Organisation Convention No. 105 on the Abolition of Forced Labour. For a discussion of these treaties see: Australian Chamber of Commerce and Industry, Submission 20, p. 4; Law Council of Australia, Submission 21, pp 7-8.

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Note on references

1.17 References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

156

CHAPTER 2

Key provisions of the Bill

2.1 The key provisions in Schedule 1 of the Bill amend the slavery, sexual servitude, deceptive recruiting and people trafficking offences in Divisions 270 and 271 of the Criminal Code Act 1995 (Cth) (Criminal Code) to:

" introduce new offences of forced labour, forced marriage, harbouring a victim and organ trafficking;

" extend the application of the existing offences of deceptive recruiting and sexual servitude so they apply to non-sexual servitude and all forms of deceptive recruiting; and

" broaden the definition of exploitation to include a range of slavery-like practices.1

2.2 Schedule 2 of the Bill includes a provision to amend section 21B of the

Crimes Act 1914 (Cth) (Crimes Act) to increase the availability of reparation orders to victims of federal offences.

Division 270 - Slavery and slavery-like conditions1 2

Definitions

2.3 Item 8 of Schedule 1 will insert into the Criminal Code proposed new

section 270.1 A - Definitions for Division 270. Definitions included in proposed new section 270.1A are:

" 'coercion' includes coercion by any of the following: force; duress; detention; psychological oppression; abuse of power; taking advantage of a person's vulnerability; and

" 'threat' means: a threat of coercion; or a threat to cause a person's deportation or removal from Australia; or a threat of any other detrimental action, unless there are reasonable grounds for the threat of that action in connection with the provision of labour or services by a person. A note to the definition states that threat also includes a threat made by any conduct, whether express or implied and whether conditional or unconditional.

2.4 Proposed new section 270.1 A also includes a reference to 'deceive' as having the same meaning as in section 271.1, where it is defined as meaning to 'mislead as to

1 Explanatory Memorandum, pp 1-2.

2 Item 7 of Schedule 1 of the Bill repeals the current heading - 'Division 270 - Slavery, sexual servitude and deceptive recruiting' - and replaces it with a new heading - 'Division 270 - Slavery and slavery-like conditions'.

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the fact (including the intention of any person) or as to law, by words or other conduct'.3

Slavery-like offences

2.5 Sections 270.4 - 270.9 of the Criminal Code deal with sexual servitude offences (including deceptive recruiting for sexual services). Item 12 of Schedule 1 of the Bill repeals current sections 270.4 - 270.9 of the Criminal Code and inserts a new 'Subdivision C - Slavery-like conditions' into section 270 of the Criminal Code.

2.6 Subdivision C establishes a new range of 'slavery-like offences', which are defined as servitude offences, forced labour offences, deceptive recruiting for labour or services, and forced marriage offences.4 5

2.7 Outlined below are the provisions in relation to servitude offences, forced labour offences and forced marriage offences.

Servitude offences

2.8 Servitude is defined in the Bill as: as the condition of a person (the victim) who provides labour or services, if, because of the use of coercion, threat or deception a reasonable person in the position of the victim would not consider himself or herself to be free to cease providing the labour or services; or to leave the place or area where the victim provides the labour or services (proposed new paragraph 270.4(l)(a)).3

2.9 The provisions of the offence also require that the victim must be significantly deprived of personal freedom in respect of his or her life other than the provision of the labour or services (proposed new paragraph 270.4(1 )(b)).

2.10 A victim may be in a condition of servitude whether or not escape from the condition is practically possible for the victim, or the victim has attempted to escape from the condition (proposed new subsection 270.4(3)).

2.11 Proposed new section 270.5 sets out the servitude offences, namely:

" engaging in conduct which causes a person to enter into or remain in servitude (subsection 270.5(1)); and

3 'Deception' has a corresponding meaning, see section 18 A of the Acts Intei-pretation Act 1901 (Cth).

4 See proposed new section 270.1 A (Definitions for Division 270).

5 A victim is in a condition of servitude whether the coercion, threat or deception is used against the victim or another person (proposed new subsection 270.4(2)).

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" conducting a business6 involving the servitude of another person (or persons) (subsection 270.5(2)).7

2.12 Proposed new subsections 270.5(3) and (4) provide that a court may find a defendant not guilty of a servitude offence, but guilty of a forced labour offence in certain circumstances.

Forced labour offences

2.13 Proposed new section 270.6 defines forced labour as: the condition of a person (the victim) who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person in the position of the victim would not

consider himself or herself to be free to cease providing the labour or services; or to leave the place or area where the victim provides the labour or services.8

2.14 A victim may be in a condition of forced labour whether or not escape from the condition is practically possible for the victim, or the victim has attempted to escape from the condition (proposed new subsection 270.6(3)).

2.15 Proposed new section 270.6A sets out the following forced labour offences:

" engaging in conduct that causes a person to enter into or remain in forced

labour (proposed new subsection 270.6A(1)); and

" conducting a business involving the forced labour of another person (or persons) (proposed new subsection 270.6A(2)).9

Forced marriage offences

2.16 Proposed new subsection 270.7A(1) defines a forced marriage as: a marriage where, because of the use of coercion, threat or deception, one party to the marriage (the victim) entered into the marriage without free and full consent.10

6 'Conducting a business' is defined in proposed new section 270.1A (Definitions for Division 270) to include: taking any part in the management of the business; and exercising control or direction over the business; and providing finance for the business.

7 Both the offences in proposed new section 270.5 have a penalty of imprisonment for 20 years in the case of an aggravated offence (proposed new section 270.8 deals with aggravated offences) or, for any other case, imprisonment for 15 years.

8 A victim is in a condition of forced labour whether the coercion, threat or deception is used against the victim or another person (proposed new subsection 270.6(2)).

9 Both of the offences in proposed new subsection 270.6A have a penalty of imprisonment for 12 years in the case of the aggravated offence, and imprisonment for nine years in any other case.

10 The marriage is a forced marriage whether the coercion, threat or deception is used against the victim or another person (subsection 270.7A(3)).

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2.17 Proposed new subsection 270.7A(2) defines marriage for the purposes of subsection 270.7A(1) as:

" a registered relationship within the meaning of section 2E of the

Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act);

" a marriage recognised under a law of a foreign country;

" a relationship registered under a law of a foreign country, if the relationship is of the same, or a similar, type as any registered relationship within the meaning of section 2E of the Acts Interpretation Act; or

" a marriage that is void, invalid, or not recognised by law, for any reason.

2.18 Proposed new section 270.7B creates the following forced maniage offences:

" engaging in conduct that causes a person to enter into a forced marriage as the victim of the marriage (subsection 270.7B(1)); and

" being a party to a forced marriage (where the person is not the victim of the

forced marriage) (subsection 270.7B(2)).n

Relevant evidence provision

2.19 Proposed new section 270.10 sets out a range of circumstances that the court may have regard to when determining if a person against whom a slavery-like offence is alleged to have been committed (the alleged victim) has been coerced, threatened or

deceived.

2.20 The circumstances to which the court may have regard include the following matters:

" the economic relationship between the alleged victim and the alleged

offender;

" the terms of any written or oral contract or agreement between the alleged victim and the alleged offender;

" the personal circumstances of the alleged victim including, but not limited to, whether he or she is entitled to be in Australia under the Migration Act 1958, his or her ability to speak, write and understand English or another language, and the extent of his or her social and physical dependence on the alleged offender.11 12

11 The penalty for the forced marriage offences is seven years imprisonment for an aggravated offence and four years imprisonment in any other case.

12 Proposed new subsection 270.10(2).

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General consent provision

2.21 Proposed new section 270.1113 states that it is not a defence to the offences in Division 270 that the person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence.

Division 271 - Trafficking in persons and debt bondage

Definition of 'exploitation'

2.22 Item 22 of Schedule 1 inserts a new definition of 'exploitation' into the Criminal Code to become new section 271.1 A. The definition provides that exploitation of one person (the victim) by another person occurs if the other person's conduct causes the victim to enter into any of the following conditions: slavery,14 or a condition similar to slavery; servitude; forced labour; forced marriage; or debt bondage.15

Offence of 'harbouring a victim'

2.23 Proposed new subsection 271.7F(1) creates an offence of 'harbouring a victim'. A person (the offender) commits the offence if they harbour, receive or conceal another person (the victim) and, in doing so, the offender assists a third person in connection with any offence committed by the third person (the 'third person offence') or furthers a third person's purpose in relation to any 'third person offence'. The 'third person offence' must be an offence against Division 27116 or Division 270.

2.24 The penalty for the offence in proposed new section 271.7F is a maximum of four years imprisonment.

2.25 A person can be found guilty of an offence under proposed new

subsection 271.7F(1) even if the third person has not been prosecuted for, or has not been found guilty of, any other offence (proposed new subsection 271.7F(4)).

13 Proposed new section 270.11 is in Subdivision D - Offences against Division 270: general.

14 'Slavery' is defined in section 270.1 of the Criminal Code as 'the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such conditions result from a debt or contract made by the person'.

15 'Debt bondage' is defined in the Dictionary to the Criminal Code to mean the status or condition that arises from a pledge by a person of his or her personal services (or of the personal services of another person under his or her control) as security for a debt owed, or claimed to be owed, (including any debt incurred, or claimed to be incurred, after the pledge is given), by that person if: the debt owed or claimed to be owed is manifestly excessive; or the reasonable value

of those services is not applied toward the liquidation of the debt or purported debt; or the length and nature of those services are not respectively limited and defined.

16 Apart from an offence of harbouring a victim under proposed new section 271.7F.

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2.26 Proposed new section 271.7G creates an aggravated offence of harbouring a victim. A person commits the aggravated offence where the victim of the harbouring offence is under 18 years of age. The maximum penalty for the aggravated offence is seven years imprisonment.

Other amendments to Division 271

2.27 The Bill also seeks to amend Division 271 to:

" establish new offences of organ trafficking;17

" insert a new aggravated offence of debt bondage;18

" insert a general relevant evidence provision (in the same terms as proposed new section 270.10) which sets out a list of matters a court or jury may have regard to in determining whether an alleged victim has been coerced, threatened or deceived (in relation to offences pertaining to trafficking in persons and harbouring a victim), or whether an alleged victim (or alleged victim's guardian) has consented to the removal of an organ of the alleged victim (in relation to the organ trafficking offences).19

" insert a general consent provision (in the same terms as proposed new

section 270.11) to make it clear that a victim's consent or acquiescence cannot be used as a defence in a proceeding for an offence under Division 271 20

Reparations for victims

2.28 Section 21B of the Crimes Act deals with reparation for offences. Currently, paragraph 21B(l)(d) of the Crimes Act provides that the court may order an offender to 'make reparation to any person, by way of money payment or otherwise, in respect

of any loss suffered by the person as a direct result of the offence' (emphasis added).

2.29 Item 2 of Schedule 2 of the Bill amends paragraph 21B(l)(d) so that the provision states that the offender can be ordered to make reparation in respect of any loss suffered 'or any expense incurred, by the person by reason of the offence'.

17 Proposed new Subdivision BA of Division 271 (item 38 of Schedule 1). The organ trafficking offences are punishable by 12 years imprisonment, and the aggravated offences of organ trafficking is punishable by 25 years imprisonment where the victim is under 18 years of age, or 20 years imprisonment in in any other case.

18 Proposed new section 271.9 (item 42 of Schedule 1). The aggravated offence of debt bondage is punishable by imprisonment for seven years.

19 Proposed new section 271.11A (item 48 of Schedule 1).

20 Proposed new section 271.1 IB (item 48 of Schedule 1).

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CHAPTER 3

Key issues

3.1 The majority of submissions and witnesses to the inquiry expressed broad support for the Bill.1 In particular, the Bill was described as a 'positive step forward to Australia meeting its obligations under the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children' (Trafficking Protocol).1 2

3.2 Despite this broad support, a number of specific issues and concerns were raised in relation to the Bill, including:

´ the breadth of the definition of 'coercion';

" expansion of the definition of 'marriage' in relation to the offences of forced marriage;

" the omission of a servile marriage offence;

" the need to include offences to cover slavery and servitude within intimate relationships;

" the use of the 'reasonable person' test in the definitions of 'forced labour' and 'servitude';

" whether it is appropriate that consent and acquiescence are not defences to the offences under Divisions 270 and 271 of the Criminal Code Act 1995 (Cth) (Criminal Code);

" the anticipated practical operation of the offence of harbouring a victim; and

" issues relating to reparations orders, and the need for general support

strategies for victims of slavery and people trafficking.

1 See, for example: ACT Government, Submission 3, p. 1; Presbyterian Women's Association of Australia in New South Wales, Submission 6, p. 1; Migration Institute of Australia, Submission 11, p. 2; Australian Catholic Religious Against Trafficking in Humans (ACRATH), Submission 12, p. 1; Project Futures, Submission 14, p. 4; Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 15, p. 3; Liberty Victoria, Submission 17, p. 1; Australian Association of Women Judges, Submission 22, p. 2; Ms Fiona McLeod SC, Law Council of Australia, Committee Hansard, 29 August 2012, pp 1-2; Associate Professor Jennifer Bum, Anti-Slavery Australia, Committee Hansard, 29 August 2012, p. 27. However, Scarlet Alliance strongly opposed the Bill, arguing that the 'likely negative impact on sex workers, particularly migrant sex workers, outweighs any perceived gains [from the] changes', Submission 13, p. 1.

2 Women's Legal Service Victoria, Submission 26, p. 1. The Australian Human Rights Commission, Submission 38, p. 2, described the Bill as a 'significant step in Australia meeting its obligations under human rights law'.

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Definition of *coercion *

3.3 The definitions of'servitude', 'forced labour' and 'forced marriage' in the Bill refer to the use of 'coercion, threat or deception' against the victim, or another person.3 'Coercion' is defined in proposed new section 270.1 A (Definitions for Division 270) to include coercion by any of the following: force; duress; detention; psychological oppression; abuse of power; or taking advantage of a person's vulnerability.

3.4 While many submissions welcomed these new definitions,4 5 other submissions and witnesses expressed concern at the breadth of the definition of 'coercion'/ For example, the Hon John Dowd AO QC, President of the International Commission of Jurists Australia (ICJA) argued that 'coercion' is not, in fact, defined in the Bill:

The Bill states what coercion includes, and therefore it just lists six different terms, two of which are particularly unsuitable. Saying 'coercion includes' does not define coercion. Coercion can take many forms, particularly within certain cultures where men have control over women or where parents have control over children...The word 'power' has far too broad a meaning and in fact needs greater definition, along with the word 'vulnerable'.6

3.5 Ms Fiona David of Walk Free was supportive of the introduction of the concept of coercion but considered that the drafting of the definition requires clarification:

It is very important that this law introduces the concept of

coercion... [Traffickers use very subtle means to control people, so it is very important to have this element of coercion in the bill. But we have also seen in the last 10 years how important it is that our criminal laws are very

clear and easy for people in the field to apply. Is the element of coercion as defined clear enough for a cop in Kalgoorlie to apply? I am not sure it is.7

Government response

3.6 The committee notes that the Addendum to the Explanatory

Memorandum (EM) states that the definition of 'coercion' has been intentionally drafted to be broad:

3 P r o p o s ed n ew s ectio n 2 7 0 . 4 ( d ef in itio n o f s er v itu d e) , p r o p o s ed n ew s ectio n 2 7 0 . 6 ( d ef in itio n o f

f o r ced lab o u r ) , an d p r o p o s ed n ew s ectio n 2 7 0 . 7 A ( d ef in itio n o f f o r ced mar r iag e) .

4 S ee, f o r ex amp le: U n itin g Ch u r ch in A u s tr alia, S y n o d o f V icto r ia an d Tas man ia,

Submission 15, p . 3 ; Law Co u n cil o f A u s tr alia, Submission 21, p . 1 0 ; P r o ject Res p ect, Submission 25, p . 4 .

5 S ee, f o r ex amp le: Wo men ' s Leg al Cen tr e ( A CT an d Reg io n ) , Submission 4, p . 2 , w h ich

s u g g es ted th at th e b r o ad in ter p r etatio n o f co er cio n may lead to amb ig u ity , p ar ticu lar ly in

r elatio n to th e f o r ced mar r iag e o f f en ces .

6 Committee Hansard, 29 A u g u s t 2 0 1 2 , p . 2 .

7 Committee Hansard, 29 A u g u s t 2 0 1 2 , p . 8 .

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The definition of 'coercion' has intentionally been drafted to be broad and non-exhaustive in order to supplement the existing framework and ensure the broadest possible range of exploitative behaviour is captured and criminalised.

Importantly, the prosecution will still be required to prove the elements of the relevant offence beyond a reasonable doubt.8

3.7 At the public hearing, an officer of the Attorney-General's Department (Department) reiterated this position, noting that the definition is 'appropriately drafted':

[T]he government's position on this is that the definition of 'coercion' is appropriately drafted by reference to...[the] list of matters that may constitute coercion in a particular case within the standard definition of the word. The list is not exhaustive, so it does not limit the application of the definition to certain types of circumstances. One of the benefits of the way that the definition is currently drafted is that it will also allow courts to

consider what constitutes coercion in a given case but also by reference to the factors listed in the separate relevant evidence provisions in the Bill.9

Forced marriage offences

3.8 The forced marriage offences in the Bill were welcomed by submitters and witnesses.10 11 However, some submissions suggested that the definition of 'marriage' in proposed new subsection 270.7A(2) should be amended to encompass unregistered de facto relationships and unregistered cultural and religious marriages.11

3.9 Women's Legal Service Victoria, for example, noted that the definition of marriage in the Bill is broadly defined and consistent with the provisions of the Marriage Act 1961 (Cth), however it does not cover de facto relationships:

Given the number of de facto relationships that now exist in Australia, it seems appropriate that the offence be expanded to include an offence where a victim is coerced, threatened or deceived into entering into a de facto relationship without free and full consent.12

8 A d d en d u m to th e Ex p lan ato r y M emo r an d u m ( EM ) , p . 2 .

9 M r A n th o n y Co les , A tto r n ey - G en er al' s D ep ar tmen t, Committee Hansard, 2 9 A u g u s t 2 0 1 2 ,

p . 4 0 . Th e r elev an t ev id en ce p r o v is io n s in th e Bill ar e p r o p o s ed n ew s ectio n s 2 7 0 . 1 0

an d 2 7 1 . 1 1 A .

1 0 S ee, f o r ex amp le: P r o ject F u tu r es , Submission 14, p . 9 ; I n ter n atio n al Co mmis s io n o f J u r is ts

A u s tr alia ( I CJ A ) , Submission 30, p . 4 ; N atio n al Co u n cil o f Wo men o f A u s tr alia, Submission 36,

p . 3 ; M s A llis o n M u n r o , Wo men *s Leg al Cen tr e ( A CT an d Reg io n ) , Committee Hansard,

2 9 A u g u s t 2 0 1 2 , p . 9 ; M s G ay atr i N air , A u s tr alian Law y er s f o r H u man Rig h ts ,

Committee Hansard, 2 9 A u g u s t 2 0 1 2 , p . 1 8 .

1 1 S ee, f o r ex amp le: Wo men ' s Leg al S er v ice V icto r ia, Submission 26, p . 2 ; M r G r eg o r y J o n es ,

Submission 29, p . 2 ; I CJ A , Submission 30, p p 4 - 5 .

1 2 Submission 26, p . 2 .

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Government response

3.10 The EM provides the following explanation on the scope of the definition of 'marriage' in the Bill:

Marriage has been described broadly for the purposes of Division 270 to capture a range of marriage and marriage-like relationships that affect the legal status of the parties, involve a similar level of formal recognition and

commitment, and which may carry legal or religious consequences. The provision will capture a relationship which for all intents and purposes is considered to be a marriage by the parties and their community.13

3.11 The committee notes the explanation from the Department in its answer to a question on notice that expanding the definition of marriages to include all de facto relationships would result in the forced marriage offences applying in an unclear and potentially unjust manner:

The intention is to target marriages or relationships in which there is some identifiable point in time at which the victim's lack of consent can be assessed, be that a ceremony or the act of registering a relationship. If the offences extended to all de facto relationships or other relationships, this could lead to the offences applying in an undesirably broad and unclear manner. For example, determining whether or not two people are in a de facto relationship under Australian law requires a case-by-case assessment of a range of different circumstances of their relationship - it is not necessarily possible to know with great certainty the point at which a relationship becomes a de facto relationship, or whether it is a de facto relationship at all.14

3.12 The Department also referred to proposed new paragraph 270.7A(2)(d) of the Bill, which provides that 'marriage' includes a marriage that is void or invalid or not recognised by law for any reason:

The Government's view is that this component of the definition is wide enough to encompass a range of cultural, religious and other ceremonies (whether or not they are registered or otherwise regulated in some fashion).15

1 3 EM , p . 2 4 .

1 4 A n s w er to q u es tio n o n n o tice, r eceiv ed 4 S ep temb er 2 0 1 2 , p . 5 .

1 5 A n s w er to q u es tio n o n n o tice, r eceiv ed 4 S ep temb er 2 0 1 2 , p p 4 - 5 .

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Omission of a servile marriage offence

3.13 A small number of contributors to the inquiry expressed concern that there is not a specific offence of 'servile marriage' in the Bill.16

3.14 The Department's Discussion Paper on Forced and Servile Marriage sets out the following explanation of'servile marriage':

Servile marriage generally refers to situations in which a person is considered a 'chattel' that can be sold, transferred or inherited into marriage. This type of practice is described in the Supplementaiy Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar

to Slaveiy 1956 (the Supplementary Convention), and is considered to be a practice similar to slavery.17

3.15 Slavery Links noted that the EM refers to a person being transferred or inherited into a marriage, but that the Bill is silent on this point. Slavery Links argued that the Bill should make it 'explicit that a married person may not be transferred to another or inherited'.18 Ms Fiona David of Walk Free questioned why servile marriage is not covered by the Bill, despite being recognised as a slavery-like practice under the

Supplementary Convention. Ms David noted that 'servile marriage' overlaps with 'forced marriage', but is not the same thing.19

3.16 The ICJA referred to the Department's Discussion Paper on Forced and Servile Marriage which used the terms 'forced' and 'servile' marriage interchangeably. The ICJA noted that servile marriage 'appears to have an ownership and exploitation component that may not be as evident in forced marriage', and suggested that the distinction between forced and servile marriage needs to be clarified in the Bill.20

Government response

3.17 The EM states that the definition of 'forced marriage' would include servile marriage:

For a person (the victim) to be transferred, sold or inherited into a marriage, there would generally be coercion (i.e. by the abuse of power or by taking advantage of a person's vulnerability), threat or deception used by another

16 See, for example: Slavery Links, Submission 27, p. 10; Ms Fiona David, Walk Free, Committee Hansard, 29 August 2012, p. 8.

17 Attorney-General's Department, Discussion Paper: Forced and Semite Marriage, November 2010, p. 3.

18 Submission 27, p. 10.

19 Committee Hansard, 29 August 2012, p. 8.

20 Submission 30, p. 5. See also: Attorney-General's Department, Discussion Paper: Forced and Semite Mairiage, November 2010, p. 3.

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person. For this reason, the intention is that a servile marriage falls within the definition of forced marriage...

Where a person has been transferred, sold or inherited into a marriage with no right to refuse, this may also amount to an offence of slavery.21

3.18 In an answer to a question on notice the Department reiterated these points, informing the committee that servile marriage is considered to be a practice similar to slavery. As a result, this conduct is likely to be covered by the existing slavery offences in the Criminal Code and the proposed offences of forced marriage also potentially cover servile marriages.22

3.19 The Department also provided the following explanation as to why a separate definition of'servile marriage' is not required in the Bill:

The Government's view is that servile marriage is a practice which would already be subject to criminal punishment and that a new offence is not required. As a result, it is not necessary to include a separate definition of 'servile marriage * in the Bill.23

Slavery or servitude within intimate relationships

3.20 A number of submissions suggested that the Bill should include a specific offence of slavery or servitude within intimate relationships.24 The submissions referred to situations where both parties have consented to the marriage, or relationship, and subsequently the relationship deteriorates to become one of slavery or servitude:

A typical scenario would be where a woman consents to a marriage or relationship with a man. Over time the relationship deteriorates to slavery-like conditions. The woman suffers regular physical, emotional and sexual abuse. She is forced to do all the domestic work and provide sex whenever the man wants and is threatened with violence if she refuses. Her movements are heavily restricted and her relationships with friends and

family are also controlled or not allowed. She has little or no access to finances. She is too scared to leave because her partner threatens violence to herself or her children if she does.25

3.21 Ms Allison Munro of the Women's Legal Centre (ACT and Region),

explained that, in her view, these circumstances would be difficult to capture under the terms of the servitude offences in the Bill:

2 1 EM , p . 2 5 .

2 2 A n s w er to q u es tio n o n n o tice, r eceiv ed 4 S ep temb er 2 0 1 2 , p . 1 1 .

2 3 A n s w er to q u es tio n o n n o tice, r eceiv ed 4 S ep temb er 2 0 1 2 , p . 1 1 .

2 4 S ee, f o r ex amp le: Wo men ' s Leg al Cen tr e ( A CT an d Reg io n ) , Submission 4, p . 4 ;

Wo men ' s Leg al S er v ice V icto r ia, Submission 26, p . 3 ; Wo men ' s Leg al S er v ices N S W,

Submission 31, p p 5 - 6 ; Wo men ' s Law Cen tr e o f WA , Submission 32, p . 2 .

2 5 Wo men ' s Leg al Cen tr e ( A CT an d Reg io n ) , Submission 4, p . 4 .

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As the Bill currently stands, there does not appear to us to be any legislative intention to include intimate relationships in the slavery and servitude offences. In relation to servitude, the Explanatory Memorandum to the Bill talks about servitude in relation to industry and workplaces only. There is no mention of intimate relationships with regard to the new offence...

There would be other barriers as well to obtaining a conviction for victims in intimate relationships. Evidence for slavery and servitude in intimate relationships will be particularly difficult. This is due to a frequent lack of physical evidence and the issue of consent being more complex...

Given the apparent lack of legislative intent and the banders mentioned, we believe it will be almost impossible to obtain a conviction for slavery or servitude for victims in intimate relationships under the current Bill. This is

unjust because at the end of the day these women suffer just as much as other victims of slavery or servitude. We believe there needs to be a separate sexual servitude offence that refers to intimate relationships either as part of the offence or as an example.26

Government response

3.22 An officer from the Department provided the following explanation as to why a specific offence in the context of an intimate relationship is not included in the Bill:

[I]n accordance with general criminal law principles, the Bill does not create an offence to cover every possible circumstance or practical example of exploitative conduct that might arise. Rather, the amendments are designed to apply generally to a variety of different types of exploitative conduct in whatever context they arise...

The offences are drafted broadly so that they can apply in the context of a marriage... If the underpinning offending behaviour exists then the fact that it occurs in the context of a marriage frankly would not be relevant...The only thing I would say is that we quite deliberately wanted to avoid a situation where we start talking about specific context. To cite a simple example, in a murder offence you do not say it is murder with a blunt instrument or with a firearm.27

2 6 Committee Hansard , 2 9 A u g u s t 2 0 1 2 , p p 9 - 1 0 .

2 7 M r A n th o n y Co les , A tto r n ey - G en er al' s D ep ar tmen t, Committee Hansard, 2 9 A u g u s t 2 0 1 2 ,

p p 3 2 , 4 0 .

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3.23 In its answers to questions on notice, the Department indicated that it considers that the Bill and the EM are sufficiently clear that the 'slavery-like offences apply in the victim's public or private life, including in the context of a marriage'.28 Additional information could be included in the EM, however, to explain the operation of the servitude offences (section 270.5), forced labour offences (section 270.6A) and the offence of deceptive recruiting for labour or services (section 270.7). The Department suggested the following text:

'The new offences apply irrespective of whether the proscribed conduct occurs in the victim's public or private life. For example, provided the elements of the offence are established, it is immaterial whether the victim and the offender are married or in a de facto relationship.'29

3.24 The Department also indicated that the following text could be included in the EM to provide clarity on the issue of consent:

'Where a person freely and fully consented to enter into a marriage, but was later coerced, threatened or deceived into remaining in the maniage, the new servitude and slavery offences, or existing State and Territory domestic violence legislation, may apply.'30

*Reasonable person test' in the servitude and forced labour offences

3.25 The introduction of specific forced labour offences, and the expansion of servitude offences to apply to non-sexual servitude was supported by a number of submissions.31 Some submissions suggested that the test of whether a 'reasonable person in the position of the victim would not consider himself or herself to be free' (which is used in the definitions of'servitude' - proposed new paragraph 270.4(1 )(a) - and 'forced labour' - proposed new subsection 270.6(1)) could be clarified.32

3.26 The Law Council of Australia and the ICJA referred to comparable

United States legislation where the definition of 'serious harm' for the purposes of the forced labour offences refers to 'a reasonable person of the same background and in the same circumstances' as the victim.33

2 8 A n s w er to q u es tio n o n n o tice, r eceiv ed 4 S ep temb er 2 0 1 2 , p . 1 5 .

2 9 A n s w er to q u es tio n o n n o tice, r eceiv ed 4 S ep temb er 2 0 1 2 , p . 1 5 .

3 0 A n s w er to q u es tio n o n n o tice, r eceiv ed 4 S ep temb er 2 0 1 2 , p . 1 5 .

3 1 S ee, f o r ex amp le: U n itin g Ch u r ch in A u s tr alian , S y n o d o f V icto r ia an d Tas man ia,

Submission 15, p . 3 ; A u s tr alian Law y er s A llian ce, Submission 19, p . 5 .

3 2 S ee, f o r ex amp le: I n ter n atio n al Co mmis s io n o f J u r is ts , Wes ter n A u s tr alian Br an ch ,

Submission 18, p . 4 ; Law Co u n cil o f A u s tr alia, Submission 21, p p 1 2 - 1 3 ; I CJ A , Submission 30, p p 3 - 4 ; M s F io n a D av id , Walk F r ee, Committee Hansard, 2 9 A u g u s t 2 0 1 2 , p . 8 .

3 3 Submission 21, p p 1 2 - 1 3 an d Submission 30, p p 3 - 4 r es p ectiv ely .

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Government response

3.27 The EM notes that the 'reasonable person test' requires a court to consider whether a reasonable person of the same background and in the same circumstances would have been free to withdraw his or her labour or services, or to leave the workplace.34 In making a determination the court may have regard to the matters listed

in the relevant evidence provision (proposed new section 270.10), including:

" the economic relationship between the alleged victim and alleged offender;

" the terms of any contract or agreement between the alleged victim and alleged offender; and

" the personal circumstances of the alleged victim, including their lawful presence in Australia, their understanding of the English language and their social and physical dependence on the alleged offender.35

3.28 In an answer to a question on notice, the Department stated:

Th e G o v er n men t co n s id er s th e ex is tin g f o r mu latio n o f th e ' r eas o n ab le

p er s o n ' tes t is ap p r o p r iate. I t is a s tan d ar d ter m o f ar t in cr imin al law

ju r is p r u d en ce.

Th e p h r as e ' in th e p o s itio n o f th e v ictim' is in ten d ed to r ef er to a p er s o n w h o

s h ar es th e b ack g r o u n d an d cir cu ms tan ces o f th e v ictim. . .

G iv en th e clar ity alr ead y p r o v id ed in th e Ex p lan ato r y M emo r an d u m, th e

G o v er n men t d o es n o t co n s id er it n eces s ar y to alter th e cu r r en t f o r mu latio n

o f th e ' r eas o n ab le p er s o n ' tes t. 3 6

General consent provisions

3.29 The Bill inserts specific provisions into Divisions 270 and 271 of the Criminal Code to provide that the consent or acquiescence of the victim is not a defence to the offences in those Divisions (proposed new sections 270.11 and 271.1 IB).

3.30 A number of submissions welcomed these proposed new provisions.37 However, Scarlet Alliance strongly objected to the consent provisions, arguing that

34 EM, p. 19 in relation to the definition of forced labour in proposed new section 270.6. See also: EM, pp 15-16 in relation to the definition of servitude which states that 'whether a person is "not free" in relation to the matters specified in the definition [of servitude] is intended to be an objective test. It is intended that the court consider whether a reasonable person of the same background and in the same circumstances would have been free to withdraw his or her labour or services or leave the workplace'.

35 EM, p. 16, in relation to the definition of servitude, and EM, p. 19 in relation to the definition of forced labour.

36 Answer to question on notice, received 4 September 2012, p. 6.

37 See, for example: ACRATH, Submission 12, p. 4; Uniting Church in Australian, Synod of Victoria and Tasmania, Submission 15, p. 3; Australian Lawyers Alliance, Submission 19, p. 5.

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the amendments will impact on migrant sex workers, perpetuating a stereotype that 'sex workers cannot consent to sex work, that all sex work is violence'.38 Specifically:

Implicit is an assumption that migrant workers have no agency, free will, and can be treated as minors who cannot make decisions for themselves. In effect, the Australian Government is regulating who can consent to travel, work, have sex, and earn money. Not recognising consent limits who can be heard and [who can] access justice. In a wider socio-economic and geo-political sense, it takes away the agency of people to work to provide money for their family, prevents people from moving across borders, reinforces racist stereotypes, keeps people in poverty, and prescribes who is able to make rational decisions.39

3.31 Scarlet Alliance's submission noted the statement in the EM that '[i]n prosecutions for slavery and slavery-like offences, consent has been a difficult issue'.40 Scarlet Alliance disputed this point:

[I]n all the prosecuted cases, all the sex workers knew they would be sex working in Australia and had consented to do so. The fact of their consent to sex work was not a barrier in securing the prosecutions.41

Government response

3.32 The EM sets out the reasons for the inclusion of these general consent provisions:

While judges have generally directed juries that consent by a victim is not a defence to a charge, some judges have also indicated that consent may be relevant to an assessment of whether a person was in fact reduced to a state of slavery...However, the [Trafficking Protocol] makes it clear that consent of a victim is irrelevant (see Article 3(b)).

People trafficking or reducing a person to a state of slavery or servitude often involves suppressing the person's free will, their self-respect, as well as the ability to make decisions for themselves. To allow a defendant to escape liability because his or her offending achieved the desired effect in bringing about these changes in a victim so that the victim appears to

acquiesce in his or her treatment would be inexcusable.42

3.33 At the public hearing, an officer from the Department explained that the general consent provisions do not affect the rights of individuals to consent to work in any particular industry:

3 8 Submission 13, p . 4 .

3 9 Submission 13, p . 4 ( emp h as is in o r ig in al) .

4 0 Submission 13, p . 4 q u o tin g f r o m EM , p . 3 1 .

4 1 Submission 13, p . 4 .

4 2 EM , p . 3 1 .

Page 21

[T]he Bill does not affect the rights of individuals to consent to work in any industry in ordinary circumstances, including the sex industry, and nor does it criminalise any type of employment. The provisions in the Bill simply ensure that where consent is given as a result of coercion, threats or deception the offender will not escape liability for their conduct. That...is consistent with general principles of law, where consent must be full and free.43

'Harbouring a victim' offence

3.34 The new offence of harbouring a victim was generally supported;44 45 however, concerns were raised in relation to the relevant fault elements required for the offence to be made out.43

3.35 In its submission, Scarlet Alliance argued that the new harbouring offences would criminalise people who are not traffickers - namely, those who are peripherally involved, or caught up unknowingly or unintentionally - or who are intending to assist migrant workers.46 Ms Jules Kim of Scarlet Alliance expanded on these concerns at the public hearing:

Importantly, the broad scope of this Bill may criminalise people around sex workers including employers, drivers, security, receptionists, colleagues, accommodation providers and health services. It may act to make sex

workers more isolated in their access to support, or take them into more dangerous work places, or encourage sex workers to work alone.47

3.36 Scarlet Alliance also emphasised that harbouring offences already exist in the Migration Act 1958 (Migration Act), referring to sections 233E (concealing and harbouring a non-citizen) and 245AD (referring an unlawful non-citizen for work).48

3.37 Scarlet Alliance raised concerns in relation to the fault element of

'recklessness' in the harbouring offence, questioning what onus it would place on 'drivers, colleagues, health services, sex worker organisations, receptionists and managers' to investigate sex workers before offering them services. Scarlet Alliance suggested that any such investigations would impact on the willingness of migrant sex workers to access these health and safety services.49

4 3 M r A n th o n y Co les , A tto r n ey - G en er al' s D ep ar tmen t, Committee Hansard, 2 9 A u g u s t 2 0 1 2 ,

p . 3 2 .

4 4 S ee, f o r ex amp le: Law Co u n cil o f A u s tr alia, Submission 21, p . 4 ; A u s tr alian Law y er s f o r

H u man Rig h ts , Submission 23, p p 3 - 4 ; P r o ject Res p ect, Submission 25, p . 2 .

4 5 S ee, f o r ex amp le: S car let A llian ce, Submission 13, p . 6 ; M s F io n a D av id , Walk F r ee,

Committee Hansard, 2 9 A u g u s t 2 0 1 2 , p p 8 - 9 .

4 6 Submission 13, p . 6 .

4 7 Committee Hansard, 29 A u g u s t 2 0 1 2 , p . 2 1 .

4 8 A n s w er to q u es tio n o n n o tice, r eceiv ed 7 S ep temb er 2 0 1 2 , p . 7 .

4 9 A n s w er to q u es tio n o n n o tice, r eceiv ed 7 S ep temb er 2 0 1 2 , p . 7 .

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3.38 Ms Fiona David of Walk Free also queried the fault elements of the offence of harbouring a victim:

I read the offence and I wondered if someone could be convicted of this crime of harbouring even if they had no knowledge of the fact that their conduct was assisting the commission of slavery or trafficking.50

Government response

3.39 In relation to concerns that the new offence of harbouring a victim may apply to people who are seeking to provide support to a victim, the EM states:

The new offence is...not intended to apply to a person whose only intent is to provide help to or comfort a victim of trafficking or a trafficking-related offence.51

3.40 The EM also refers to the existing harbouring offence in the Migration Act:

Existing section 233E of the [Migration Act] contains an offence of concealing and harbouring non-citizens. This offence is designed to address irregular migration and is not sufficient for the purposes of people trafficking, primarily as it makes no reference to exploitation as an element of the offence. For that reason, the penalties for that offence are also insufficient. Further, [the] offence is not applicable to domestic trafficking or to slavery or slavery-like offences.52

3.41 In its submission, the Commonwealth Director of Public Prosecution (CDPP) set out the application of fault elements for the harbouring offence (proposed new subsection 271.7F(1)):

" where a defendant harbours, receives or conceal another person (the 'victim') - the physical element is 'conduct' and the fault element is 'intention' (section 5.6 of the Criminal Code);

" where the harbouring, receipt or concealing of the victim assists a third person in connection with any offence committed by the third person (the 'third person offence'), or furthers a third person's purpose in relation to any offence committed by the third person (the 'third person offence') - the physical

element is 'result' (or 'circumstance') and the fault element is 'recklessness' (proposed new subsection 271.7F(2));

5 0 Committee Hansard, 2 9 A u g u s t 2 0 1 2 , p p 8 - 9 .

5 1 EM , p . 5 1 . Th e EM , p . 5 1 , als o n o tes th at th e h ar b o u r in g a v ictim o f f en ce is 'n o t in ten d ed to

cr imin alis e a p er s o n w h o u n k n o w in g ly r eceiv es s er v ices f r o m a v ictim, s u ch as th e clien t o f a

s ex w o r k er w h o is a v ictim o f a tr af f ick in g o r a tr af f ick in g - r elated o f f en ce'.

5 2 EM , p . 5 1 .

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" where the third person offence is an offence against Division 271 (apart from section 271.7F) or Division 270 of the Criminal Code - the fault element is 'absolute liability' (proposed new subsection 271.7F(3)).53

3.42 The committee questioned the CDPP as to why proposed new

subsection 271.7F(2) specifically applies the fault element of recklessness in relation to the conduct in paragraph 271.7F(l)(b) - where the harbouring, receipt or concealing of the victim assists or furthers the offence committed by the third person - when this fault element could be 'read in' from section 5.6 of the Criminal Code (Offences that do not specify fault elements)/4

3.43 An officer from the CDPP acknowledged that the inclusion of a specific reference to 'recklessness' in proposed new subsection 271.7F(2) is 'not strictly needed', however:

Our position has been, when discussing these issues with the Attorney-General's Department, that, because of some of the difficulties or the confusion that can occur around fault elements, wherever possible we would prefer the fault elements to be specified.55

Reparations for victims and the need for a federal compensation scheme

3.44 The proposed amendments to paragraph 21B(l)(d) of the Crimes Act 1914 (Crimes Act) mean that a victim of a federal offence may be awarded reparations for any loss suffered or expense incurred by reason of the offence, and not just losses incurred as a 'direct result' of the offence (as is currently the case).

3.45 While welcoming the Bill's change to reparations orders for victims of federal offences - which includes slavery and people trafficking offences - submissions raised a number of issues in relation to reparation orders and compensation, including:

" whether reparation orders cover non-economic losses;

" limitations to obtaining reparations orders and the disparities between state victim compensation schemes; and

" the need for a federal victim compensation scheme.

53 Submission 7, p. 4. See also: Ms Jaala Hinchcliffe, Office of the Commonwealth Director of Public Prosecutions, Committee Hansard, 29 August 2012, p. 38.

54 See: Committee Hansard, 29 August 2012, p. 38.

55 Ms Jaala Hinchcliffe, Office of the Commonwealth Director of Public Prosecutions, Committee Hansard, 29 August 2012, p. 38. See also: Attorney-General's Department, Answer to question on notice, received 4 September 2012, p. 12.

Page 24

Non-economic losses

3.46 A number of submissions and witnesses commented that the proposed amendments to section 21B of the Crimes Act do not provide clarity as to whether non-economic loss (such as pain and suffering) are covered.36 For example, Ms Rosemary Budavari, from the Law Council of Australia, argued:

Although the Bill does improve the process by which a reparation order may be made as a consequence of criminal proceedings, it does not clearly articulate that those reparation orders cover pain and suffering amounts.56 57

3.47 In its submission, the Australian Lawyers Alliance highlighted the importance of this type of loss being covered in reparation orders:

[Compensation for non-economic loss [or] pain and suffering is extremely important to people who have been victims of trafficking, as it provides them with some financial support as they embark on the difficult process of rehabilitating themselves and rebuilding their lives.58 59

Limitations to obtaining reparations orders and state victim compensation schemes

3.48 A number of submissions highlighted the difficulties for victims in obtaining reparation orders.39 In its submission, the Australian Catholic Religious Against Trafficking in Humans (ACRATH) set out seven factors that currently limit the utility of reparations orders for victims of trafficking and slavery, including:

" the possibility that not all victims will come to the attention of a judge with the power to grant a reparation order;

" the requirement for a conviction to be made before a reparation order may be made and the intrinsic challenges in securing such a conviction;60

" the fact that a reparation order is effectively a civil judgement which requires enforcement by the victim against the perpetrator and the resultant detriment this may have on the victim's recovery;

5 6 A CRA TH , Submission 12, p p 3 - 4 ; Law Co u n cil o f A u s tr alia, Submission 21, p . 2 1 ;

P r o ject Res p ect, Submission 25, p . 4 ; I CJ A , Submission 30, p . 7 ; M s Ro s emar y Bu d av ar i,

Law Co u n cil o f A u s tr alia, Committee Hansard, 2 9 A u g u s t 2 0 1 2 , p . 4 ; M s J emima Br ew er ,

A u s tr alian Law y er s A llian ce, Committee Hansard, 29 A u g u s t 2 0 1 2 , p . 1 8 .

5 7 Committee Hansard, 29 A u g u s t 2 0 1 2 , p . 4 . S ee als o : M s J emima Br ew er , A u s tr alian Law y er s

A llian ce, Committee Hansard, 29 A u g u s t 2 0 1 2 , p . 1 8 .

5 8 Submission 19, p . 1 4 .

5 9 S ee, f o r ex amp le: A CRA TH , Submission 12, p . 3 ; Law Co u n cil o f A u s tr alia, Submission 21,

p . 2 2 ; A u s tr alian Law y er s f o r H u man Rig h ts , Submission 23, p . 6 .

6 0 S ee als o : Law Co u n cil o f A u s tr alia, Submission 21, p . 2 2 .

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" the potential inequity caused by the discretionary nature of reparation orders, which may result in the order made not being proportionate to the harm suffered;

" the lack of procedures which require courts to consider whether any person may be entitled to a reparation order and to invite such person to make an application for an order under section 2IB;

" the fact that the terms of section 21B are limited to loss suffered by victims as a direct result of the commission of an offence; and

" the fact that section 21B does not specifically provide for reparation orders to be made in respect of non-economic loss (such as pain and suffering, loss of amenities or loss of expectation of life), which is a type of loss frequently suffered by victims of trafficking and slavery.61

3.49 ACRATH noted that the proposed amendment in the Bill will only address one of these factors, namely that the loss is no longer going to be required to be a direct result of the commissioning of the offence.62

3.50 Victims of slavery and trafficking offences may also be eligible for compensation from state schemes; however, this approach is also unsatisfactory, given the disparities between the jurisdictions. Associate Professor Jennifer Bum of Anti-Slavery Australia summarised the differences:

Across Australia there are eight different schemes providing financial compensation for victims of crime. There are different time limits, categories of harm considered and levels of award, leading to

inconsistencies across jurisdictions and differences in outcomes. The problem can be put simply: the amount of compensation available to victims of federal trafficking offences depends on the place in Australia

where the offence took place.63

6 1 Submission 12, p . 3 .

6 2 Submission 12, p . 3 .

6 3 Committee Hansard, 2 9 A u g u s t 2 0 1 2 , p . 2 7 . S ee als o : M s J emima Br ew er , A u s tr alian Law y er s

A llian ce, Committee Hansard, 29 A u g u s t 2 0 1 2 , p . 1 8 ; U n itin g Ch u r ch in A u s tr alia, S y n o d o f

V icto r ia an d Tas man ia, Submission 15, A p p en d ix , p p 7 - 9 ; Law Co u n cil o f A u s tr alia,

Submission 2 7 , p p 2 3 - 2 6 .

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Federal compensation scheme

3.51 Many submissions64 65 referred to Australia's obligations under international treaties to provide:

" measures in the legal system that offer victims of trafficking the possibility of obtaining compensation for damage suffered;63 and

" an effective remedy to any person whose rights or freedoms are violated.66

3.52 Currently there is 'no clear process that would allow victims of trafficking to claim compensation',6' and submissions called for the establishment of a federal victim compensation scheme.68

3.53 On this point, submissions referred to the report of the UN Special Rapporteur on Trafficking, Ms Joy Ngozi Ezeilo, on her recent fact-finding mission to Australia, which noted a lack of a comprehensive national framework for victims' compensation in Australia. The UN Special Rapporteur specifically recommended that the government establish a federal compensation scheme for victims of people trafficking.69

Government response

3.54 On the amendment to paragraph 21 B(l)(d) of the Crimes Act, the EM states:

The amendment allows an individual victim to be awarded reparations for any loss suffered or any expense incurred by reason of the offence. This ensures that reparation could be made in respect of individual victims of any federal offence for loss suffered by reason of the criminal conduct, even if the loss was not a direct result of that conduct.70

64 See, for example: Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 15, p. 4; Law Council of Australia, Submission 21, p. 20; Anti-Slavery Australia, Submission 28, p. 9.

65 Article 6.6 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol).

66 Article 2.3 of the International Covenant on Civil and Political Rights.

67 Anti-Slavery Australia, Submission 28, p. 9. See also: Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 15, p. 4, which stated that 'Australia has failed to provide direct avenues for survivors to pursue compensation'.

68 See, for example: Law Council of Australia, Submission 21, p. 23; Project Respect, Submission 25, p. 2; Anti-Slavery Australia, Submission 28, p. 9; ICJA, Submission 30, p. 8.

69 Law Council of Australia, Submission 21, p. 23; Anti-Slavery Australia, Submission 28, p. 9. See also: United Nations Human Rights Council, Report of the Special Rapporteur on trafficking in person, especially women and children on her Mission to Australia (17-30 November 2011), 18 May 2012, p. 21, available at:

http://www.ohchr.org/EN/Issues/Trafficking/Pages/Visits.aspx (accessed 20 August 2012).

70 EM, p. 64.

3.55 In an answer to a question on notice, the Department provided the following explanation as to the scope of the amendment:

The proposed amendment to subsection 21 B( 1 )(d) of the [Crimes Act] will ensure that individuals can be awarded reparations for loss suffered or expenses incurred by reason of the criminal conduct, even if the loss was not a direct result of that conduct...

It is important to emphasise that section 21B(1) of the Crimes Act deals with reparations, not compensation. As such, it is not intended to cover non-pecuniary damages, such as pain and suffering. Victims are entitled to make civil claims against defendants for non-pecuniary loss. Victims may also be eligible for compensation under State and Territory victims of crime compensation schemes.71 72

3.56 An officer of the Department indicated that a federal victim compensation scheme is a matter that has been considered by the government:

Establishing a Commonwealth scheme would require specific funding, and that is a policy matter for consideration by the government...

I think it is fair to say that it is an issue that we are aware of...It has come

up in this context over several years, and it has come up in other contexts as well. It is something that we are continuing to look at. But...ultimately, it is a policy matter for the government .12

Broader support strategies for victims of people trafficking

3.57 Under the Trafficking Protocol, Australia has obligations to establish:

" measures to provide for the physical, psychological and social recover/ of victims of trafficking (Article 6.3); and

" measures that permit victims of trafficking to remain in its territory,

temporarily or permanently, in appropriate cases, and that consideration be given to humanitarian and compassionate factors (Article 7).73

3.58 It is in the context of these obligations that the need for improved victim support is discussed, in particular the need to separate the grant of visas for victims of trafficking from the provision of assistance in the criminal justice system and to ensure that victims of trafficking are not prosecuted for any offences they have committed in the course of the trafficking.

______________________________________________________________________________________Page 27

7 1 A n s w er to q u es tio n o n n o tice, r eceiv ed 4 S ep temb er 2 0 1 2 , p p 1 5 - 1 6 .

7 2 M r A n th o n y Co les , A tto r n ey - G en er al' s D ep ar tmen t, Committee Hansard ., 2 9 A u g u s t 2 0 1 2 ,

p p 3 1 an d 3 4 .

7 3 A u s tr alian Law y er s A llian ce, Submission 19, p p 1 7 - 1 8 .

179

Visas for victims of trafficking

3.59 The Department's Discussion Paper on the Criminal Response to Slavery and People Trafficking; Reparations; and Vulnerable Witness Protections refers to the 'People Trafficking Visa Framework' (Visa Framework) and the 'Support for Victims of People Trafficking Program' (Support Program), as providing flexible assistance for victims and their families.74

Visa Framework

3.60 The Visa Framework enables suspected victims of trafficking to remain lawfully in Australia if they do not already hold a valid visa.7" The Visa Framework comprises three types of visa: Bridging F visa, the Criminal Justice Stay visa and the Witness Protection (Trafficking) (Permanent) visa.

3.61 A person identified by the Australian Federal Police (AFP) as a suspected victim of people trafficking may be eligible for a Bridging F visa for up to 45 days.76 Holders of Bridging F visas receive intensive victim support through the

Support Program (discussed below). There is also an option to grant a second Bridging F visa for a further 45 days (taking the total to 90 days), during which time the person will continue to receive intensive victim support. The offer of a second Bridging F visa may be considered on a case-by-case basis.

3.62 After the expiry of a Bridging F visa, a Criminal Justice Stay visa may be granted to a suspected victim of trafficking at the request of police. A Criminal Stay Visa allows the holder to remain in Australia for as long as their presence is required for law enforcement purposes. The Criminal Justice Stay visa holder is allowed to work and receives support under the Justice Support Stream of the Support Program

(also discussed further below).

3.63 A suspected victim or a witness who has made a contribution to an

investigation or prosecution of an alleged trafficking offender may be eligible for a Witness Protection (Trafficking) (Permanent) visa if, as a result of their assistance, they would be in danger were they returned to their home country.

Page 28__________________________________________ ____________________________________________

74 Attorney-General's Department, Discussion Paper: The Criminal Justice Response to Slavery and People Trafficking; Reparation; and Vulnerable Witness Protections, November 2010, p. 3.

75 Except where otherwise indicated, the information on the People Trafficking Visa Framework (Visa Framework) and the Support for Victims of People Trafficking Program (Support Program) is taken directly from: Australian Government, Trafficking in Persons: The Australian Government Response 1 July 2010-30 June 2011, Third Report of the Anti-People

Trafficking Interdepartmental Committee, pp 28-30.

76 Anti-Slavery Australia, Supplementary Submission 28, p. 2, noted that the provisions of the Migration Regulations require that the Bridging F visa is available if'an officer of the Australian Federal Police, or of a police force of a State or Territory, has told Immigration, in writing, that the applicant has been identified as a suspected victim of human trafficking'.

180

Support Program

3.64 The Support Program provides a range of support services for suspected trafficking victims. The Support Program is divided into four streams:

" Assessment Stream - which provides intensive support for up to 45 days to all trafficked people determined by the AFP to be eligible for the

Support Program, irrespective of whether they are willing or able to assist police. Victims have access to the following support as needed: secure accommodation; a living allowance; a food allowance; an amount for the purchase of essentials, such as clothing and toiletries; access to health care,

including counselling; access to interpreters; and access to legal services.

" Extended Assessment Stream - which provides access to a further 45 days support for clients who are willing, but not able, to assist with an investigation and prosecution of a people trafficking offence. This extended period of support is provided on a case-by-case basis and is designed to provide additional assistance to clients suffering from medical conditions and trauma.77

" Justice Support Stream - provides support until the investigation and

prosecution of a people trafficking matter is finalised.78

" Temporary Trial Support Stream - provides intensive support (similar to that provided under the Assessment Stream) for trafficked people who return to Australia to give evidence pertaining to a people trafficking prosecution. Recipients are entitled to short-term accommodation and a weekly living and

food allowance.

Linking visas and support to the criminal justice process

3.65 A number of submissions expressed concern that visas and support for victims of trafficking are 'linked' to the criminal justice process.79 The Law Council of Australia acknowledged reforms in 2009 which gave greater access to visas for

victims of trafficking, however:

[ V jictims ar e g en er ally s till o b lig ed u n d er th e [ V is a] F r amew o r k to

co n tr ib u te to a p o lice in v es tig atio n ag ain s t th e p er s o n s w h o tr af f ick ed th em,

in o r d er to b eco me elig ib le f o r v is as . . . [ T] h is n o t o n ly mak es a v ictim' s

_____________________________________________________________________________________ Page 29

77 If the client does not hold a valid visa, a second Bridging F visa for up to 45 days may be granted.

78 Clients have access to the following support as needed and eligible: Special Benefit, Rent Assistance and a Health Care Card; assistance with securing longer-term accommodation; assistance to purchase essential furniture and household items; access to Medicare and the Pharmaceutical Benefits Scheme; access to legal services and interpreters; assistance to obtain employment and training (including English-language training) if desired; and links to social support.

79 See, for example: Project Futures, Submission 14, p. 17; Project Respect, Submission 25, p. 7.

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ability to stay in Australia and access services dependent on the discretion of police and prosecutors, but also on arbitrary factors such as whether their traffickers are still in Australia. A human rights based approach would provide victims with a right to stay in Australia based on their need to access services. It would also enable them to stay as long as they need those services or if they are at risk of harm if deported.80

3.66 Submissions and witnesses highlighted that victims of trafficking can be reluctant to provide assistance to the police.81 Project Respect outlined some of the reasons that victims of trafficking may not want to go to the police:

Trafficked women...frequently advise they have been told by traffickers that police in Australia are corrupt, connected to traffickers and they will be either deported or returned to their traffickers (plus their families will be in danger) if they speak to police...

Any person who has been trafficked should be able to access a visa and support regardless of their ability or willingness to engage with the Criminal Justice Process. Prosecutions should not be the ultimate priority, but a preventative method pursued wherever possible.82

3.67 Anti-Slavery Australia, among others, suggested that there should be available a permanent visa which could be granted in compassionate circumstances where victims of trafficking are unable to participate in a criminal investigation.83

3.68 In a supplementary submission, Anti-Slavery Australia explained that, even where a victim comes forward and provides assistance to police, the victim still faces great pressures and uncertainty arising from their visa status:

Our experience of the operation of the [Criminal Justice Stay visa] is that trafficking investigations can be complex and protracted. Victim-witnesses face uncertainty for their future, and concern for the safety of their family, particularly young children. The [Criminal Justice Stay visa] does not provide victim-witnesses who are afraid of the consequences of giving evidence against their traffickers with any guarantee that they will receive further visa protection after the prosecution has completed. Compounding this adverse effect on the victim-witness is the anxiety and uncertainty created if the holder of the [Criminal Justice Stay visa] has family or children who remain in their country of origin. There is no mechanism within the [Criminal Justice Stay visa] for that visa holder to be reunited

8 0 Submission 21, p . 2 8 .

8 1 S ee, f o r ex amp le: M s Ro s emar y Bu d av ar i, Law Co u n cil o f A u s tr alia, Committee Hansard,

2 9 A u g u s t 2 0 1 2 , p . 5 ; P r o ject Res p ect, Submission 25, p . 7 ; A n ti- S lav er y A u s tr alia,

Submission 28, p . 9 .

8 2 Submission 25, p . 7 . S ee als o : A n ti- S lav er y A u s tr alia, Submission 28, p . 9 .

8 3 Supplementary Submission 28, p . 5 . S ee als o : P r o ject Res p ect, Submission 25, p p 7 - 8 ;

M s Ro s emar y Bu d av ar i, Law Co u n cil o f A u s tr alia, Committee Hansard, 2 9 A u g u s t 2 0 1 2 , p . 5 ;

M s J emima Br ew er , Committee Hansard, 29 A u g u s t 2 0 1 2 , p . 1 9 .

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with his or her family in Australia. This has contributed to the ongoing trauma experienced by trafficked people assisting police.84

Government response

3.69 An officer of the Department informed the committee that initial support for victims of trafficking under the Support Program is not linked to the criminal justice system:

[T]he initial support that we offer under the Support for Trafficked People Program is entirely de-linked. That is the initial 45 days of intensive support that is available to every person who is referred by the AFP to the program. That is entirely de-linked from the criminal justice process.85

3.70 Another departmental officer indicated that it is not necessary for a prosecution to proceed in order for a victim of trafficking to be eligible for a visa to remain in Australia permanently.86

3.71 An officer from the Department of Immigration and Citizenship (DIAC) advised the committee that, if DIAC officers identify someone who might be the victim of trafficking, then a referral is made to the AFP:

If they are already lawful then that visa continues while those initial investigations occur. If they are unlawful then we grant a Bridging Visa F to maintain their lawful status. That is initially for 45 days, with the possibility of extending it.87

3.72 The committee pursued this point further with the officer from DIAC, inquiring what would happen if a person came forward and indicated to DIAC that they had been trafficked and did not want to go to the police. The officer confirmed that DIAC would need to refer the person to the police.88

3.73 Officers from the AFP also indicated that the fact that there is an immediate referral of a matter to the AFP may be a cause of reluctance for victims to come

84 Supplementary Submission 28, pp 4-5.

85 Ms Danica Yanchenko, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 33. See also: Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 31.

86 Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 31.

87 Mr Christopher Callanan, Department of Immigration and Citizenship, Committee Hansard, 29 August 2012, p. 33.

88 Mr Christopher Callanan, Department of Immigration and Citizenship, Committee Hansard, 29 August 2012, p. 33.

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forward, combined with other reasons such as a fear that the matter may be made public in their home country.89

3.74 In relation to what happens following the initial 45 days of support, an officer of the AFP provided the following information:

They are certainly encouraged to [comply with police and press a prosecution], if they would like to participate in the judicial process. To the AFP, the victim's interests are paramount at all times. So if they do not wish

to participate - and you have to remember that they have just come out of a very traumatic situation - in those circumstances we are guided by the expertise of the Support Program providers. They are eligible immediately for another 45 days, and we would gently explain to them about the process that is involved - how to go about things. They do not necessarily have to

go all the way through to a court process; they can provide intelligence to law enforcement.9

3.75 The AFP officer also noted, at some stage, the AFP needs to make an

assessment of the information provided by victims:

We have had circumstances, for example, where people have used false identities and made up stories in order to manipulate the system. So we are alive to that as well. It is just trying to get that middle ground right.91

Committee view

3.76 The committee acknowledges the extensive consultation that has been undertaken in relation to this Bill, both on the two relevant discussion papers and the exposure draft of the Bill. Specifically, the committee notes the following statement by an officer of the Department:

The development of the Bill was very much a consultative process. In particular, a number of changes were made to the Bill following the consultation on the exposure draft, and all the recommendations from that process were carefully considered and in some cases adopted. Where the

government has taken a different approach in the Bill, that has been the result of active consideration of all of those recommendations in submissions and consequent adoption of what the government believes to be the best possible approach.92

8 9 A s s is tan t Co mmis s io n er Ramzi J ab b o u r , A u s tr alian F ed er al P o lice, Committee Hansard,

2 9 A u g u s t 2 0 1 2 , p . 3 6 .

9 0 Co mman d er Ch r is M cD ev itt, A u s tr alian F ed er al P o lice, Committee Hansard, 2 9 A u g u s t 2 0 1 2 ,

p . 3 3 .

9 1 Co mman d er Ch r is M cD ev itt, A u s tr alian F ed er al P o lice, Committee Hansard, 2 9 A u g u s t 2 0 1 2 ,

p . 3 3 .

9 2 M r A n th o n y Co les , A tto r n ey - G en er al' s D ep ar tmen t, Committee Hansard, 2 9 A u g u s t 2 0 1 2 ,

p . 3 1 .

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3.77 It is clear to the committee from both the evidence provided by officers of the Department at the hearing, and in the Department's answers to questions on notice, that the Bill is the result of a considered and deliberative approach. The committee also notes that a number of submissions made positive comments commending the government on the process of consultation in the development of the Bill.93

3.78 That said, however, it has become apparent in the latter stages of the inquiry that many of the issues raised by submitters and witnesses in relation to the Bill have already been considered at length by the Department throughout the course of its own consultation processes, with specific policy decisions having been made in relation to those issues. The Department's reluctance to proactively provide the committee with relevant information that could have assisted the committee's examination of this legislation in a more efficient and timely way has severely hampered and restricted the committee's processes and deliberations in this inquiry.

3.79 In particular, the committee considers that the Department should have made a submission in the early stages of the inquiry, in which it addressed the issues raised in other submissions. This would have been particularly useful in focussing the line of questioning at the public hearing, and helping the committee finalise the content of its report at an earlier stage. Instead, the committee has had to specifically request responses from the Department in relation to several important issues, resulting in a large volume of valuable evidence arriving in the closing stages of the

inquiry - information that clearly indicates that certain policy decisions have already been made in relation to certain matters. The committee notes that had the provision of that information not been specifically requested, it would otherwise have not been made available. In that context, the committee observes that the contributions to, and outcomes of, the Department's consultation processes in relation to this legislation have not been placed on the public record.

3.80 While the committee understands that the Explanatory Memorandum provides, to some extent, an explanation as to why particular approaches in the Bill may have been adopted, it certainly does not reflect the entirety of matters raised and

considered during the course of the various departmental consultations.

Support for the Bill

3.81 The committee notes that submissions and witnesses to the inquiry have generally expressed support for the amendments in the Bill.

3.82 Although specific issues were raised with the committee in relation to the operation of the Bill, with one exception, the committee is satisfied with the responses provided by the Department.

93 See, for example, ACRATH, Submission 12 , p. 1; Australian Lawyers Alliance, Submission 19, p. 4; National Council of Women of Australia, Submission 36, p. 2.

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3.83 The only comment that the committee makes is in relation to slavery and servitude offences which occur within marriage or intimate relationships. While the committee accepts that these situations are covered by the offences in the Bill, the committee believes that inclusion in the EM of the two paragraphs of text proposed by the Department and provided to the committee during the inquiry would clarify this point

Recommendation 1

3.84 The committee recommends that the Attorney-General's Department revise and reissue the Explanatory Memorandum to clarify that the proposed slavery and servitude offences in the Bill apply to circumstances of slavery and servitude within intimate relationships (including marriage and de facto relationships).

Victim support

3.85 In the committee's view, consideration needs to be given to improving the support available for victims of slavery and people trafficking offences.

Federal victim compensation scheme

3.86 Evidence to this inquiry demonstrates that the establishment of a federal compensation scheme for victims and, in particular, victims of slavery and people trafficking offences is a matter which should be further investigated.

3.87 The committee accepts that the proposed amendments to section 2IB of the Crimes Act are intended to increase the availability of reparations orders; however, it is clear that there are limits to the losses that are covered by these orders and limitations on victims being able to obtain these orders. Further, on the evidence before the committee, state victim compensation schemes seem to differ significantly

and, importantly, eligibility requirements to access these schemes vary between jurisdictions.

Recommendation 2

3.88 The committee recommends that the Australian Government further investigate the establishment of a federal compensation scheme for victims of slavery and people trafficking.

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Visas and support for victims of trafficking

3.89 The committee understands that the initial grant of a visa and support to victims of trafficking are not conditional on a victim providing assistance to the police. However, support does appear to be conditional on the AFP assessing that the person is a suspected victim of human trafficking.94 95

3.90 The committee notes comments by the UN Special Rapporteur on People Trafficking who observed that 'any person who does not engage with [the] AFP will automatically be excluded from the [Visa Framework and Support Program]'.93

3.91 The committee understands from the evidence it has received that, following an initial 45-day period (with the possibility of an extension to 90 days), the Visa Framework and Support Program are conditional on the victim participating in the criminal justice process.

3.92 On this matter, the UN Special Rapporteur for People Trafficking said:

[ A ] 11 o n g o in g s u p p o r t s er v ices ar e d ep en d en t o n a co n tr ib u tio n to cr imin al

ju s tice p r o ces s o r in v es tig atio n . Th e lin k in g o f o n g o in g s u p p o r t s er v ices to

co n tr ib u tio n to cr imin al p r o ces s es s h o u ld b e r emo v ed , as it imp o s es an

ad d itio n al b u r d en o n v ictims o f tr af f ick in g an d d o es n o t r ep r es en t an

ad eq u ate ack n o w led g emen t o f th eir s tatu s as v ictims . 96

3.93 Despite this, the committee recognises that a victim of trafficking may be eligible for a permanent visa even in the event that a prosecution does not proceed.97

3.94 While the committee acknowledges the evidence of the AFP in relation to possible 'manipulation' of the system, there is a strong argument made in submissions and evidence to this inquiry for the government to review the Visa Framework and

94 Anti-Slavery Australia, Supplementary Submission 28, p. 2.

95 United Nations Human Rights Council, Report of the Special Rapporteur on trafficking in person, especially women and children on her Mission to Australia (17-30 November 2011), 18 May 2012, p. 14, quoted in Law Council of Australia, Submission 21, p. 29. See also: Project Respect, Submission 25, p. 7, which noted that where the Australian Federal Police

encounters a person they feel has been trafficked but the person will not speak to police (and therefore cannot access support or a visa on the Commonwealth Support Program) they remain in a situation of exploitation and slavery.

96 United Nations Human Rights Council, Report of the Special Rapporteur on trafficking in person, especially women and children on her Mission to Australia (17-30 November 2011), 18 May 2012, p. 14, quoted in Law Council of Australia, Submission 21, p. 29. See also: Project Respect, Submission 25, p. 7, which refers to the Italian system where victims have

access to support and visas though accredited non-govemment community service organisations.

97 Mr Anthony Coles, Attorney-General's Department, Committee Hansard, 29 August 2012, p. 31.

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Support Program, and to specifically consider the establishment of a visa and support stream which is not dependent on a victim assisting in the criminal justice system.

Recommendation 3

3.95 The committee recommends that the Australian Government review the People Trafficking Visa Framework and the Support for Victims of People Trafficking Program, and consider establishing an ongoing visa and access to victim support mechanism which is not conditional on a victim of people trafficking providing assistance in the criminal justice process.

Recommendation 4

3.96 Subject to Recommendation 1, the committee recommends that the Senate pass the Bill.

Senator Trish Crossin Chair

188

ADDITIONAL COMMENTS BY

COALITION SENATORS

1.1 On 19 June 2012, the Senate referred the provisions of the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 (Bill) to the Senate Legal and Constitutional Affairs Legislation Committee (Committee) for inquiry and report by 13 September 2012.1

1.2 Coalition Senators express reservations about certain aspects of the Committee's report into the Bill.

1.3 Coalition Senators are concerned about the very broad definition of 'coercion' in the Bill. The Addendum to the Explanatory Memorandum explicitly says that the term has been drafted "to be broad and non-exhaustive in order to supplement the existing framework and ensure the broadest possible range of exploitive behaviour is captured and criminalised". The failure to actually define what 'coercion' means leaves open the possibility that a broad range of relationships in which power is unequal might be characterised as coercive.

1.4 Similarly, Coalition Senators are concerned at the broad way in which the Bill provides that consent or acquiescence of a victim is not a defence to offences under the legislation. Clearly consent which has been obtained through duress or force cannot be characterised as true consent, but the Bill does not appear to make the

distinction between real and apparent consent.

1.5 This distinction is highlighted by the way the Bill deals with servitude and forced labour offences within marriage or a marriage-like relationship. Clearly, there is a broad spectrum of unequal and undesirable power relationships within marriages in Australia, ranging from violent and coercive relationships to ones where one partner exercises an inappropriate level of influence over the other partner. Clearly, at

one end of that spectrum behaviour should be criminalised and at the other it should not, but it is very hard to discern where, in that spectrum, the legislation draws the line of criminality.

1.6 Coalition Senators are concerned that many stakeholders are confused or dissatisfied with the approach the legislation takes, and believe that further work needs to be done to make clear the ambit of the legislation.

1.7 Coalition Senators welcome the effort to clarify the law regarding slavery and servitude, but are concerned that the operation of the law will leave open many questions of scope and definition which will necessarily need to be resolved in expensive litigation.

1 Journals of the Senate, No. 92 * 19 June 2012, pp 2528-2529.

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Senator Gary Humphries Senator Sue Boyce

Deputy Chair

190

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

APPENDIX 1

SUBMISSIONS RECEIVED

Submitter

Mrs Marion Smith AM

FamilyVoice Australia

ACT Government

Women's Legal Centre (ACT and Region)

Business SA

Presbyterian Women's Association of Australia in

New South Wales

Commonwealth Director of Public Prosecutions

Inner South Community Health Service

Ms Vanessa Chan

Castan Centre for Human Rights Law

Migration Institute of Australia

Australian Catholic Religious Against Trafficking in Humans

Scarlet Alliance, Australian Sex Workers Association

Project Futures

Uniting Church in Australia, Synod of Victoria and Tasmania

Civil Liberties Australia

Liberty Victoria

International Commission of Jurists, Western Australian Branch

191

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

Australian Lawyers Alliance

Australian Chamber of Commerce and Industry

Law Council of Australia

Australian Association of Women Judges

Australian Lawyers for Human Rights

Settlement Council of Australia

Project Respect

Women's Legal Services Victoria

Slavery Links

Anti-Slavery Australia

Mr Gregory Jones

International Commission of Jurists Australia

Women *s Legal Services NSW

Women's Law Centre of WA

Federation of Ethnic Communities' Councils of Australia

Confidential

The Hon Robert Clark MP, Victorian Attorney-General,

on behalf of the Victorian Government

National Council of Women of Australia

Walk Free

Australian Human Rights Commission

Australian Institute of Criminology

Transform, Ipswich Baptist Church

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ADDITIONAL INFORMATION RECEIVED

1 Document tabled by Walk Free at public hearing on 29 August 2012,

definition of'coercion'.

2 Document tabled by Slavery Links at public hearing on 29 August 2012, 'Encounters with modem slavery'.

3 Document tabled by Slavery Links at public hearing on 29 August 2012, 'How the Court system might encounter forms of slavery in Australia'.

4 Response to questions on notice provided by Attorney-General's Department on 4 September 2012.

5 Response to questions on notice provided by Commonwealth Director of Public Prosecutions on 4 September 2012.

6 Response to questions on notice provided by Australian Lawyers for Human Rights on 4 September 2012.

7 Response to questions on notice provided by Australian Federal Police on 5 September 2012.

8 Response to questions on notice provided by Slavery Links on

5 September 2012. 9

9 Response to questions on notice provided by Scarlet Alliance on

7 September 2012.

193

194

APPENDIX 2

WITNESSES WHO APPEARED BEFORE THE COMMITTEE Canberra, 29 August 2012

BELJIC, Miss Emilija, Member, ACT Committee, Australian Lawyers for Human Rights

BREWER, Ms Jemima, Chair, Criminal Law Subcommittee, Australian Lawyers Alliance

BUDAVARJ, Ms Rosemary, Co-Director, Criminal Law and Human Rights Division, Law Council of Australia

BURN, Associate Professor Jennifer, Director, Anti-Slavery Australia

C ALLAN AN, Mr Christopher, First Assistant Secretary, Compliance and Case Resolution Division, Department of Immigration and Citizenship

COLES, Mr Anthony, Assistant Secretary, Border Management and Crime Prevention Branch, Attorney-General's Department

DAVID, Ms Fiona, Executive Director, Global Research, Walk Free

DOWD, The Hon John, AO QC, President, International Commission of Jurists Australia

HINCHCLIFFE, Ms Jaala, Senior Assistant Director, Commonwealth Director of Public Prosecutions

HOWELL, Mr Roscoe, Board Member and Public Officer, Slavery Links Australia

JABBOUR, Assistant Commissioner Ramzi, National Manager, Crime Operations, Australian Federal Police

KIM, Ms Jules, Migration Project Manager, Scarlet Alliance, Australian Sex Workers Association

KNEEBONE, Dr Susan, Emeritus Associate, Castan Centre for Human Rights Law

McDEVITT, Commander Chris, Manager, Special References, Australian Federal Police

McLEOD, Ms Fiona, SC, Director, Law Council of Australia

MUNRO, Ms Allison, Volunteer Law Reform Advocate, Women's Legal Centre (ACT and Region)

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NAIR, Ms Gayatri, New South Wales Co-convenor and Acting Secretary, Australian Lawyers for Human Rights

PURNELL, Ms Alison, Director, Consular Policy and Training, Department of Foreign Affairs and Trade

YANCHENKO, Ms Danica, Acting Director, People Smuggling and Trafficking Section, Attorney-General's Department

196

The Senate

Legal and Constitutional Affairs

Legislation Committee

Customs Amendment (Smuggled Tobacco) Bill 2012 [Provisions]

August 2012

© Commonwealth of Australia

ISBN: 978-1-74229-672-2

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

MEMBERS OF THE COMMITTEE

Members

Senator Patricia Crossin, Chair, ALP, NT

Senator Gary Humphries, Deputy Chair, LP, ACT

Senator Sue Boyce, LP, QLD

Senator Mark Fumer, ALP, QLD

Senator Louise Pratt, ALP, WA

Senator Penny Wright, AG, SA

Secretariat

Ms Julie Dennett

Ms Sophie Dunstone

Mr Chris Lawley

Ms Hannah Dibley

Committee Secretary

Inquiry Secretary

Senior Research Officer

Administrative Officer

Suite SI.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

iii 199

200

TABLE OF CONTENTS

MEMBERS OF THE COM M ITTEE .................................................................... iii

RECOMMENDATION.............................................................................................vii

Chapter 1 ......................................................................................................................... 1

Introduction..................................................................................................................1

Referral of the inquiry ............................................................................................... 1

Purpose of the Bill......................................................................................................1

Key provisions of the Bill..........................................................................................1

Rationale for the Bill.................................................................................................2

Background.................................................................................................................3

Conduct of the inquiry...............................................................................................5

Acknowledgement..................................................................................................... 6

Chapter 2 ......................................................................................................................... 7

Key issues.......................................................................................................................7

Views of anti-smoking organisations ....................................................................... 7

Views of tobacco industry.........................................................................................7

Response of government departments and agencies................................................8

Committee view..........................................................................................................9

APPENDIX 1................................................................................................................ 11

SUBMISSIONS RECEIVED....................................................................................11

201

202

RECOMMENDATION

Recommendation 1

2.16 The committee recommends that the Bill be passed.

vn 203

204

Chapter 1 Introduction

Referral of the inquiry

1.1 On 27 June 2012, the Attorney-General, the Hon Nicola Roxon MP,

introduced the Customs Amendment (Smuggled Tobacco) Bill 2012 (Bill) into the House of Representatives.1 On 29 June 2012, the Senate referred the provisions of the Bill to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 14 August 2012.1 2

Purpose of the Bill

1.2 Currently, section 233 of the Customs Act 1901 (Customs Act) creates an offence for the smuggling of any goods and their conveyance and possession, including tobacco products. These offences can only be prosecuted by way of a Customs prosecution and are punishable by a financial penalty only (of up to five times the duty evaded).3

1.3 The Explanatory Memorandum to the Bill states that, on some occasions, the investigation of a smuggling offence results in the identification of sufficient evidence to warrant the pursuit of fraud offences under the Criminal Code Act 1995 (Cth). In these cases, offences carry penalties of up to 10 years imprisonment.4

1.4 The Bill proposes to amend the Customs Act to create criminal offences for the smuggling of tobacco products and for the conveyance or possession of smuggled tobacco products where the person conveying or possessing the goods knows they were smuggled.5 The proposed new offences would combine the penalties of the existing smuggling and fraud offences by providing a pecuniary penalty of up to five times the duty evaded in addition to up to 10 years imprisonment.6

Key provisions of the Bill

1.5 Item 2 of Schedule 1 of the Bill would insert new section 233BABAD into the Customs Act and create an offence where:

" a person imports tobacco products with the intention of 'defrauding the revenue' (proposed new subsection 233BABAD(1)); or

1 House of Representatives Votes and Proceedings, No. 119-27 June 2012, p. 1637.

2 Journals of the Senate, No. 99 - 29 June 2012, pp 2696-2697.

3 Customs Amendment (Smuggled Tobacco) Bill 2012, Explanatory Memorandum, pp 2, 5.

4 Customs Amendment (Smuggled Tobacco) Bill 2012, Explanatory Memorandum, p. 2.

5 Customs Amendment (Smuggled Tobacco) Bill 2012, Explanatory Memorandum, p. 2.

6 Customs Amendment (Smuggled Tobacco) Bill 2012, Explanatory Memorandum, p. 2.

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" a person conveys or possesses tobacco products which the person knows were imported with the intent of defrauding the revenue (proposed new subsection 233BABAD(2)).

1.6 Proposed new subsection 233BABAD(3) provides that when prosecuting a person who conveys or possesses smuggled tobacco products, it would not be necessary to prove the identity of the person who imported the goods.

1.7 Proposed new subsection 233BABAD(4) provides that, in each case, the offence would be punishable by up to 10 years imprisonment, a fine of up to five tunes the duty evaded (if this can be determined by the Court), or both. If the amount of duty cannot be determined by the Court, a fine of 1000 penalty units would apply.

1.8 Proposed new subsection 233BABAD(6) provides that a person convicted or acquitted of an offence under the proposed changes would not be liable for smuggling proceedings under section 233 of the Customs Act in respect of the same conduct. This aims to ensure that a person cannot be prosecuted twice for the same offence.

1.9 Proposed new subsection 233BABAD(7) would link the definition of tobacco products with goods classified in the Customs Tariff Act 1995 (Tariff Act). The Tariff Act classification includes a broad range of tobacco products including unmanufactured tobacco, tobacco refuse, cigars, cheroots, cigarillos, cigarettes, other manufactured tobacco, homogenised and reconstituted tobacco, and tobacco extracts and essences.

1.10 Item 1 of Schedule 1 of the Bill would amend section 210 of the Customs Act to allow an officer of the Australian Customs and Border Protection Service, the Australian Federal Police or the police force of a state or territory to arrest a person without a warrant where the officer believes, on reasonable grounds, that the person has committed or is committing an offence relating to the smuggling of tobacco products.

Rationale for the Bill

1.11 When introducing the Bill, the Attorney-General stated that the current penalties for illegal tobacco importation '...are not necessarily an effective deterrent, as many penalties currently imposed for tobacco smuggling are not paid'.7 Prior to introduction of the Bill, the Attorney-General noted in a media release:

...current penalties for illegal importation are very low compared to other serious instances of fraud against the Commonwealth.

Penalties must provide a strong deterrent to criminals involved in this activity, as well as demonstrate the seriousness, with which the Commonwealth treats such criminal acts.8

7 The Hon Nicola Roxon MP, Attorney-General, House of Representatives Hansard , 27 June 2012, p. 3.

8 The Hon Nicola Roxon MP, Attorney-General, 'Tougher penalties for tobacco smugglers', Media release, 31 May 2012.

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1.12 The Attorney-General also noted that to date '...tobacco smuggling has not represented a major threat in Australia and Australian Customs and Border Security have been successful in intercepting hauls of illicit tobacco heading for Australia'.9

Background

National Preventative Health Taskforce

1.13 In April 2008, the Australian Government established the

National Preventative Health Taskforce to gather evidence and develop strategies to tackle the health challenges caused by tobacco, alcohol and obesity in Australia.10 11 On 30 June 2009, the taskforce released the National Preventative Health Strategy to address these issues.11

1.14 Accompanying the strategy was a technical report into tobacco control in Australia.12 The technical report made a number of recommendations to reduce smoking prevalence including increasing customs and duty on tobacco smoking, mandating the plain packaging of cigarettes and increasing funding for anti-smoking advertisements. Actions 1.2 and 1.3 of the report also recommended that the Australian Government develop and implement a coordinated national strategy to prevent the emergence of illicit trade of tobacco in Australia and to contribute to the development and implementation of international agreements aimed at combating illicit trade.13

1.15 The technical report made reference to evidence from the United Kingdom indicating that tobacco smuggling is responsible for about 4,000 premature deaths every year, four times the number of deaths that are caused by the use of all other smuggled illegal drugs combined.14 The research estimates that approximately

9 The Hon Nicola Roxon MP, Attorney-General, Tougher penalties for tobacco smugglers', Media release, 31 May 2012.

10 The Hon Nicola Roxon MP, Minister for Health and Ageing, 'New health taskforce on prevention *tobacco, alcohol and obesity priorities', Media release, 9 April 2008. This taskforce was comprised of Australian health experts and chaired by Dr Rob Moodie. The taskforce reported directly to the Minister for Health and Ageing.

11 National Preventative Health Taskforce, Australia: The healthiest country by 2020, 2009, www.health.gov.au/intern et/preventativehealth/publishing.nsf/Content/national-nreventati ve≠ il ealth-strategy-lip (accessed 10 July 2012).

12 National Preventative Health Taskforce, Australia: The healthiest countiy by 2020, 'Technical Report 2 *Tobacco control in Australia: Making smoking history *, 2009, www.health.gov.au/internet/preventativehealth/publishing.nsf/Content/tech-tobacco (accessed 13 August 2012).

13 National Preventative Health Taskforce, Australia: The healthiest countiy by 2020, 'Technical Report 2 *Tobacco control in Australia: Making smoking history', 2009, Actions 1.2 and 1.3, p. 89.

14 National Preventative Health Taskforce, Australia: The healthiest countiy by 2020, 'Technical Report 2 *Tobacco control in Australia: Making smoking history', 2009, p. 89.

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Page 4

21 per cent of all tobacco smoked in the United Kingdom enters the country by way of smuggling, which accounts for a 12 per cent lower price of legal tobacco.13

1.16 The technical report also noted that Canada and Singapore had moved to introduce excise stamps on cigarettes to identify legitimate tobacco products and detect counterfeit or contraband products.15 16 In 2000, the United Kingdom also introduced a strategy to tackle tobacco smuggling through increased funding for pursuing and prosecuting organised crime and by increasing penalties to deter offending.17 18

Government response

1.17 On 11 May 2010, the Australian Government released its response to the National Preventative Health Strategy.1 s The government agreed with many recommendations relating to tobacco and developed an anti-smoking action plan that committed to increasing tobacco excise by 25 per cent, introducing legislation to mandate the plain packaging of tobacco and allocating further funding for anti≠ smoking advertisement campaigns.

1.18 In responding to the recommendations on preventing the illicit trade of tobacco, the government noted:

Australia has in place a strong legislative and regulatory framework to control the illicit trade in tobacco products.

The Australian Taxation Office and the Australian Customs and Border Protection Service (Customs and Border Protection) have an active ongoing role in monitoring and enforcement activity against illicit tobacco

production or importation.19

Tobacco smuggling in Australia

1.19 There is no official estimate of the size of the illicit trade in tobacco in Australia.20 It was estimated in the 2010 National Drug Strategy Household Sw~vey

15 National Preventative Health Taskforce, Australia: The healthiest country by 2020, 'Technical Report 2 *Tobacco control in Australia: Making smoking history', 2009, p. 89.

16 National Preventative Health Taskforce, Australia: The healthiest country by 2020, 'Technical Report 2∑ *Tobacco control in Australia: Making smoking history', 2009, pp 90-91.

17 Her Majesty's Revenue and Customs and UK Border Agency, Tackling tobacco smuggling - building on our success, April 2011.

18 Department of Health and Ageing website, Taking preventative action - The government's response to the report of the National Preventative Health Taskforce', www.health.gov.au/intemet/preventativehealth/publishing.nsf/Content/taking-preventative- action (accessed 10 July 2012).

19 Commonwealth of Australia, Taking preventative action-A response to Australia: The healthiest countiy by 2020 - The report of the National Preventative Health Taskforce, 2010, p. 63, www.health.gov.au/internet/preventativehealth/publishing.nsf/Content/6B7B17659424FBE5C A25772000095458/$File/tpa.pdf (accessed 10 July 2012).

20 Department of Health and Ageing, Submission 7, p. 2.

208

that 4.9 per cent of smokers used loose unbranded tobacco and that 1.5 per cent of smokers used loose unbranded tobacco more than half the time.21

1.20 In May 2012, the tobacco industry released a report on the illicit trade in tobacco in Australia.22 The report found that, in 2011, the size of the illicit tobacco market was equivalent to 13.4 per cent of the legal tobacco market.23 However, in its submission to the current inquiry, the Department of Health and Ageing informed the committee that it considers that the report:

...contains a range of methodological flaws that lead it to substantially exaggerate the size of the illicit trade in tobacco in Australia.

Nevertheless, the illicit tobacco trade remains a public health concern in Australia, given its potential to undermine Government action to reduce smoking rates.24 25

1.21 Tobacco smuggling is monitored by the Australian Customs and Border Protection Service (Customs) in conjunction with other Commonwealth and state agencies such as the Australian Federal Police and the Australian Tax Office. According to Customs, the majority of criminal entities involved in tobacco

smuggling are experienced, highly organised and extensively networked.22 * Deterring and disrupting tobacco smuggling is a whole-of-agency activity by Customs, targeting high-risk imports using border detection technologies such as container examination facilities at ports.26

1.22 During 2010-11, Customs made 55 detections in sea cargo arriving in Australia, amounting to 258 tonnes of tobacco and 82 million cigarettes.27 The loss of revenue for the Australian Government would have been $135 million plus Goods and Services Tax had the smuggling attempts been successful.28

Conduct of the inquiry

1.23 Details of the inquiry, the Bill and associated documents were published on the committee's website. The committee also wrote to a number of organisations, inviting submissions by 13 July 2012.

_______________________________________________________________________________________ Page 5

21 Australian Institute of Health and Welfare, 2010 National Drug Strategy Household Survey Report, Canberra, July 2011, p. 39.

22 Deloitte, Illicit trade of tobacco in Australia: Report for 2011, May 2012, p. 1. For a copy of the report see British American Tobacco Australia, Phillip Morris Limited and Imperial Tobacco Australia, Submission 5, Attachment 1.

23 Deloitte, Illicit trade of tobacco in Australia: Report for 2011, May 2012, p. 5.

24 Department of Health and Ageing, Submission 7, p. 2.

25 Australian Customs and Border Security Service, Annual Report 2010-11, p. 55, www.customs.gov.au/webdatayresources/llles/879316AUSCUSwebpdf.pdf (accessed 11 July 2012).

26 Australian Customs and Border Security Service, Annual Report 2010-11, p. 55.

27 Australian Customs and Border Security Service, Annual Report 2010-11, p, 55.

28 Australian Customs and Border Security Service, Annual Report 2010-11, p, 55.

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1.24 The committee received seven submissions, which are listed at Appendix 1. All submissions were published on the committee's website at

www.aph.gov.au/senate legaicon. The committee did not hold a public hearing for this inquiry.

Acknowledgement

1.25 The committee thanks the organisations who made submissions to the inquiry.

210

Chapter 2 Key issues

2.1 All submissions received for this inquiry were supportive of the Bill.1

Views of anti-smoking organisations

2.2 Anti-smoking organisations endorsed the proposed increased penalties for smuggling tobacco as a way to prevent smoking and to deter criminals from attempting to defraud the government by conveying or possessing smuggled tobacco products.1 2 According to the Australian Council on Smoking and Health:

Tobacco remains the leading cause of preventable death and disease in Australia, killing more than 15,000 Australians every year and with costs to the community estimated at costing more than $30 billion annually. There is no room for complacency.3

2.3 The anti-smoking organisations were also supportive of the government's action plan on smoking. Action on Smoking and Health Australia noted that the Bill forms '...part of the Australian Government's strong commitment to implementing and enforcing a comprehensive tobacco control strategy'.4

2.4 While agreeing with and supporting the proposed amendments, Quit Victoria considered that there is insufficient evidence to warrant the government diverting additional resources to the issue of the illicit trade of tobacco in Australia at this point in time:

...a more efficient way for the government to reduce tobacco use in Australia would be to concentrate its resources on proven tobacco control measures such as the elimination of tobacco advertising.5

Views of tobacco industry

2.5 The joint submission from British American Tobacco Australia, Phillip Morris Limited and Imperial Tobacco Australia strongly supported the imposition of a maximum penalty of 10 years imprisonment in conjunction with existing financial

1 Australian Customs and Border Protection Service, Submission 1, p. 2; Action on Smoking and Health (ASH) Australia, Submission 2, p. 1; Australian Council on Smoking and Health (ACOSH), Submission 3, p. 1; Quit Victoria, Submission 4, p. 1; British American Tobacco Australia, Phillip Morris Limited and Imperial Tobacco Australia, Submission 5, p. 1; The Australian National Preventive Health Agency (ANPHA), Submission 6, p. 3; Department of Health and Ageing, Submission 7, p. 2.

2 ASH, Submission 2, p. 1; ACOSH, Submission 3, p. 1; Quit Victoria, Submission 4, p. 1.

3 ACOSH, Submission 3, p. 1.

4 ASH, Submission 2, p. 1.

5 Quit Victoria, Submission 4, p. 2.

Page 8

penalties.6 Further, '...the current magnitude of the tobacco smuggling problem in Australia.. .justifies the need for the Bill'.7

Response of government departments and agencies

2.6 The Australian National Preventative Health Agency (ANPHA) submitted that evidence indicates that tax increases on tobacco are the single most effective means available to governments to reduce tobacco consumption and thereby reduce

death and disease due to smoking.8 The ANPHA stated:

Smuggling and illicit trade of tobacco undermines the effectiveness of these tax increases and price policies: resulting in cheaper prices and potential increases in tobacco use. This in turn has the potential to contribute to the high incidence of smoking related morbidity and mortality.9

2.7 According to the ANPHA, the use of illicit loose tobacco has also been associated with illness over and above that caused by commercially produced cigarettes due to the use of bulking agents such as twigs, raw cotton and grass clippings.10 11 Mould, mycotoxins, bacteria and actinomycetes have also been detected in illicit loose tobacco.11

2.8 The Department of Health and Ageing submitted that it is supportive of the Bill as tobacco smuggling undermines government efforts to reduce rates of smoking in Australia.12 According to the department, the smuggling of tobacco products affects

two key elements of Australia's approach to tobacco control:

" smuggled tobacco products evade paying tobacco excise, thereby

undermining the effectiveness of excise as a tobacco control measure; and

" smuggled tobacco products are unlikely to comply with Australia's plain packaging or graphic health warning requirements.13

2.9 Both the Department of Health and Ageing and the ANPHA advised that the Bill is consistent with Australia's obligations as a signatory to the World Health Organisation Framework Convention on Tobacco Control.14

6 British American Tobacco Australia, Phillip Morris Limited and Imperial Tobacco Australia, Submission 5, p. 1.

7 British American Tobacco Australia, Phillip Morris Limited and Imperial Tobacco Australia, Submission 5, p. 2.

8 ANPHA, Submission 6, p. 2.

9 ANPHA, Submission 6, p. 2.

10 ANPHA, Submission 6, pp 2-3.

11 ANPHA, Submission 6, p. 3.

12 Department of Health and Ageing, Submission 7, p. 2.

13 Department of Health and Ageing, Submission 7, p. 4.

14 ANPHA, Submission 6, p. 3; Department of Health and Ageing, Submission 7, pp 5-6.

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Page 9

2.10 The Australian Customs and Border Protection Service (Customs) informed the committee that tobacco smuggling is identified as a key border risk and the proposed legislative changes would enhance the capacity of Customs to manage that risk.15 16 Customs stated that the proposed changes:

...more accurately reflect the risks posed to the Australian community, the seriousness of the offences being committed, and provide a strong deterrent to criminals.16

2.11 According to Customs, the smuggling of tobacco endangers the community and the environment as the tobacco products commonly contain dangerous contaminants and much higher levels of carcinogens than legitimate products.17 Smuggled tobacco products also circumvent quarantine controls, thereby increasing the potential for exotic pests and diseases to be introduced.

2.12 Customs indicated that tobacco smuggling offences are often committed by organised crime syndicates who view tobacco smuggling as a high return and relatively low risk venture.18 Of concern to Customs is the possibility that '(t)he profits made by these syndicates can also potentially be used to fund other criminal activities'.19

2.13 Customs noted that tobacco smuggling is a specific example of defrauding the Commonwealth and the penalty proposed for these new offences is consistent with the maximum penalty for the fraudulent conduct offences in the Criminal Code.20 The new offences would also be subject to existing arrest powers under section 210 of the Customs Act which enable a Customs officer or an officer from the Australian Federal Police or a state or territory police force to arrest a person without warrant in certain circumstances.21

Committee view

2.14 The committee recognises that the illicit trade of tobacco undermines the government's attempts to curb the prevalence of smoking in Australia and prevent its harmful effects. Since smuggled tobacco products evade government regulation, inspection and duty, these products present a significant risk to people's health, the environment and the economy.

2.15 The committee acknowledges that the Bill will introduce penalties for tobacco smuggling that are consistent with the maximum penalties for fraudulent conduct offences under the Criminal Code. The committee also notes that the Bill has received

15 Australian Customs and Border Protection Service, Submission 1, p. 1.

16 Australian Customs and Border Protection Service, Submission 1, p. 2.

17 Australian Customs and Border Protection Service, Submission 1, p. 1.

18 Australian Customs and Border Protection Service, Submission 1, p. 1.

19 Australian Customs and Border Protection Service, Submission 1, p. 1.

20 Australian Customs and Border Protection Service, Submission 1, p. 2.

21 Australian Customs and Border Protection Service, Submission 1, p. 2.

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support from the tobacco industry and anti-smoking organisations alike. Accordingly, the committee strongly endorses this legislation.

Recommendation 1

2.16 The committee recommends that the Bill be passed.

Senator Trish Crossin Chair

APPENDIX 1

SUBMISSIONS RECEIVED

Submission Number

1

2

3

4

5

6

7

Submitter

Australian Customs and Border Protection Service

Action on Smoking and Health Australia

Australian Council on Smoking and Health

Quit Victoria

British American Tobacco Australia, Phillip Morris Limited and Imperial Tobacco Australia

The Australian National Preventive Health Agency

Department of Health and Ageing

216

The Senate

Legal and Constitutional Affairs

Legislation Committee

Freedom of Information Amendment (Parliamentary Budget Office) Bill 2012

[Provisions]

November 2012

© Commonwealth of Australia

ISBN: 978-1-74229-715-6

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

218

MEMBERS OF THE COMMITTEE

Members

Senator Patricia Crossin, Chair, ALP, NT

Senator Gary Humphries, Deputy Chair, LP, ACT

Senator Sue Boyce, LP, QLD

Senator Mark Fumer, ALP, QLD

Senator Louise Pratt, ALP, WA

Senator Penny Wright, AG, SA

Secretariat

Ms Julie Dennett

Ms Christine McDonald

Dr Jon Bell

Ms Elise Williamson

Ms Diana Harris

Committee Secretary

Inquiry Secretary

Principal Research Officer

Administrative Officer

Administrative Officer

Suite S 1.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

iii 219

220

TABLE OF CONTENTS

MEMBERS OF THE COMMITTEE.....................................................................iii

RECOMMENDATIONS...........................................................................................vii

CHAPTER 1....................................................................................................................1

Introduction.................................................................................................................. 1

Purpose of the Bill......................................................................................................1

Key provisions of the Bill .............................................. 2

Conduct of the inquiry............................................................................................... 3

CHAPTER 2 ....................................................................................................................5

Key issues....................................................................................................................... 5

Support for the Bill.....................................................................................................5

No requirement to confirm or deny the existence of documents ............................ 6

Length of the exemption............................................................................................7

Committee view..........................................................................................................8

APPENDIX 1.................................................................................................................11

SUBMISSIONS RECEIVED....................................................................................11

221

222

RECOMMENDATIONS

Recommendation 1

2.15 The committee recommends that the Explanatory Memorandum to the Bill be revised and reissued to explain clearly that the Bill *s proposed new exemption:

" applies only to documents prepared by departments and agencies for the *dominant purpose' of providing information to the Parliamentary Budget Office or the Parliamentary Budget Officer relating to a confidential request, and that it does not apply to documents prepared or held by those departments and agencies in the ordinary course of their business or activities; and

" is modelled on the existing exemption under the Freedom of Information Act 1982 for Cabinet documents.

Recommendation 2

2.16 Subject to Recommendation 1, the committee recommends that the Senate pass the Bill.

vii 223

224

CHAPTER 1 Introduction

1.1 On 10 October 2012, the Freedom of Information Amendment (Parliamentary Budget Office) Bill 2012 (Bill) was introduced into the House of Representatives by the Attorney-General, the Hon. Nicola Roxon MP.1 On 11 October 2012, the Senate referred the provisions of the Bill to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 19 November 2012.1 2 The House of Representatives passed the Bill on 30 October 2012,3 and the Bill was introduced into the Senate on the same day.4

Purpose of the Bill

1.2 The Parliamentary Budget Office (PBO) is established under the

Parliamentary Service Act 1999 as the fourth parliamentary department. The PBO is an important institution that further strengthens Australia's fiscal and budget frameworks by providing non-partisan and independent information to the Parliament on the budget, fiscal policy and financial implications of proposals. As set out in the Explanatory Memorandum (EM) to the Bill, the PBO is an exempt agency under the Freedom of Information Act 1982 (FOI Act).5

1.3 However, the current exemption under the FOI Act is limited:

[ T] h e F r eed o m o f I n f o r matio n A ct d o es n o t cu r r en tly p r o v id e a s p ecif ic

ex emp tio n f o r d o cu men ts r elatin g to r eq u es ts f r o m th e P ar liamen tar y

Bu d g et O f f ice th at may b e h eld b y d ep ar tmen ts an d o th er ag en cies . 6

1.4 The Bill addresses this issue by amending the FOI Act and the

Privacy Act 1988 (Privacy Act) to provide a new FOI exemption for documents related to confidential requests to the PBO. The exemption will apply to documents that are brought into existence for the 'dominant purpose' of providing information to the PBO in relation to a confidential request.7

1.5 The EM notes that 'this will ensure that the integrity of the PBO processes in these matters which are critical to the successful operation of the PBO will not be undermined'.8

1 House of Representatives Votes and Proceedings, No. 137, 10 October 2012, p. 1854.

2 Journals of the Senate,Ho. 117, 11 October 2012, pp 3117-3118.

3 House of Representatives Votes and Proceedings, No. 140, 30 October 2012, p. 1915.

4 Journals of the Senate, No. 119, 30 October 2012, pp 3191-3192.

5 Explanatory Memorandum (EM), p. 1.

6 The Hon. Nicola Roxon MP, Attorney-General, House of Representatives Hansard, 10 October 2012, p 11767.

7 Proposed new paragraph 45A(l)(b); (item 3 of Schedule 1 of the Bill).

8 EM, p. 1.

Page 2

Key provisions of the Bill

1.6 As indicated in the EM, '[t]he Bill amends the FOI Act to provide an

exemption for information held by departments and agencies that relates to a confidential request to the PBO' by a parliamentarian.9 The amendments will 'ensure that the integrity of the PBO processes in these matters which are critical to the

successful operation of the PBO will not be undermined *.10 11

1.7 The key provisions of the Bill:

" amend the FOI Act by inserting a new section 45A to provide an exemption for information held by departments and agencies that relates to a confidential request to the Parliamentary Budget Office;11

" amend section 25 of the FOI Act to provide that an agency is not required to

give information as to the existence or non-existence of a document, where it is exempt under the new exemption for documents that relate to a confidential request to the PBO;12

" amend subsection 58B(1) of the FOI Act to provide that, where an application is made to the Administrative Appeals Tribunal (AAT) for a review of a decision refusing to grant access to a document that is claimed to be exempt under the new PBO exemption, the AAT must be constituted by three presidential members or by a presidential member alone.13

1.8 The Bill also makes a consequential amendment to the Privacy Act, to reflect the amendment to section 25 the FOI Act. The Attorney-General noted that section 34 of the Privacy Act provides that the Information Commissioner, in carrying out functions under the Privacy Act such as investigating a possible breach of privacy by an agency, must not give a person any information as to the existence or

non-existence of a document where it is exempt under the FOI Act.

1.9 The Attorney-General went on to state:

It is proposed to amend section 34 [of the Privacy Act] to refer to the new Parliamentary Budget Office exemption, reflecting the amendment to section 25 of the Freedom of Information Act and ensuring that

Parliamentary Budget Office documents are confidential.14

9 EM , p . 2 .

1 0 EM , p . 2 .

1 1 EM , p . 6 .

1 2 EM , p . 6 .

1 3 EM , p . 8 .

1 4 Th e H o n . N ico la Ro x o n M P , A tto r n ey - G en er al, House of Representatives Hansard,

1 0 O cto b er 2 0 1 2 , p . 1 1 7 6 7 .

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Conduct of the inquiry

1.10 The committee advertised the inquiry in The Australian on 24 October 2012, and details of the inquiry, the Bill and associated documents were placed on the committee's website at http://www.aph.gov.au/senate legalcon, The committee also wrote to over 50 organisations and individuals, inviting submissions by 26 October 2012.

1.11 The committee received four submissions, which are listed at Appendix 1. No public hearings were held for the inquiry.

227

228

CHAPTER 2 Key issues

2.1 As noted in chapter 1, the PBO is an exempt agency under the FOI Act;

however, documents related to PBO requests may be held by departments and other agencies and may not be protected from release under the FOI Act.1

Support for the Bill

2.2 The PBO supported the proposed amendments to the FOI Act and informed the committee that the existing FOI exemption is essential to the PBO's effectiveness as a source of confidential budget analysis and policy costings for senators and members. The PBO submitted:

The proposed amendments to the FOI Act extend this logic to also provide an exemption under the FOI Act for information held by departments and agencies that relates to a confidential request to the PBO. The PBO is heavily reliant on other departments and agencies for information to use in its budget analyses and policy costings.1 2

2.3 The PBO also noted that the Memorandum of Understanding between the Parliamentaiy Budget Office and the Heads of Commonwealth Bodies in relation to the Provision of Information and Documents had been finalised and that strict confidentiality obligations are placed on the heads of Commonwealth bodies in relation to confidential information requests to the PBO. Confidentiality of

information relating to confidential requests to the PBO is also recognised under protocols issued for Commonwealth bodies engaging with the PBO.3

2.4 In a joint submission, The Treasury and the Department of Finance and Deregulation welcomed the introduction of the Bill and advised the committee that, in their view, the amendments will ensure the confidentiality of requests from the PBO and that the integrity of the PBO processes are maintained.4

2.5 While the Australian Information Commissioner and the Freedom of Information Commissioner did not express an opinion on whether it is appropriate as a matter of policy to exempt PBO documents from the FOI Act, they submitted:

We accept that the exemption from the FOI Act of documents in the possession of the PBO and PBO-related documents held by other agencies,

1 EM , p . 2 . F u r th er b ack g r o u n d o n th e P BO an d th e F O I A ct is co n tain ed in a r ecen t

P ar liamen tar y Lib r ar y Bills D ig es t: s ee M ar y A n n e N eils en , Freedom of Information

Amendment (Parliamentary Budget Office) Bill 2012 , Bills D ig es t N o . 3 9 , 2 0 1 2 - 1 3 , P ar liamen tar y Lib r ar y , 3 1 O cto b er 2 0 1 2 .

2 P ar liamen tar y Bu d g et O f f ice, Submission 1, p . 1 .

3 P ar liamen tar y Bu d g et O f f ice, Submission 1, p . 1 .

4 Th e Tr eas u r y an d th e D ep ar tmen t o f F in an ce an d D er eg u latio n , Submission 2, p . 2 .

229

Page 6

rest on the same policy rationale. The Bill does not appear to go further than necessary to effect that policy intent in the FOI Act...

We accept that the current Bill corrects an unintended consequence of the narrow scope of the earlier exemption.5

2.6 The Commissioners noted that the Bill will 'enact provisions similar to those already in the FOI Act that extend the exemption applying to security intelligence agencies (such as the Australian Security Intelligence Organisation) to "intelligence agency documents" held by other agencies but which originated with ASIO or were

received by ASIO'.6

2.7 The Attorney-General's Department advised:

" the PBO exemption gives additional protection to the PBO and it is not based on the intelligence agency provisions, which recognise the special character and sensitivity of intelligence information; and

" the proposed new exemption will only apply to PBO documents held by

agencies that relate to a confidential request made to the PBO and the new exemption does not apply to other PBO-related documents.7

No requirement to confirm or deny the existence of documents

2.8 Section 25 of the FOI Act provides the right of an agency, or a Minister when responding to an FOI request, to neither confirm nor deny the existence or non≠ existence of certain documents that would be exempt. Such rights are currently limited to documents affecting national security, defence or international relations, law enforcement and the protection of public safety.8 The Bill amends section 25 of the FOI Act to extend this right to the new exemption in proposed section 45A for PBO documents. In her second reading speech, the Attorney-General stated:

Freedom of Information requests may be made to agencies for the sole puipose of finding out whether or not the PBO has received a confidential request in relation to a particular matter. A response from an agency that

documents could not be released because a relevant exemption applied would in effect confirm the existence of the documents and the fact that a confidential request had been made to the Parliamentary Budget Office.9 10

5 O f f ice o f th e A u s tr alian I n f o r matio n Co mmis s io n er , Submission 3, p . 1 .

6 O f f ice o f th e A u s tr alian I n f o r matio n Co mmis s io n er , Submission 3, p . 1 , r ef er r in g to

s u b s ectio n s 7 ( 2 A ) - ( 2 C) o f th e F O I A ct.

7 A tto r n ey - G en er al' s D ep ar tmen t, Submission 4, p p 1 - 2 .

8 S ee: M ar y A n n e N eils en , Freedom of Information Amendment (Parliamentary Budget Office)

Bill 2012, Bills D ig es t N o . 3 9 , 2 0 1 2 - 1 3 , P ar liamen tar y Lib r ar y , 3 1 O cto b er 2 0 1 2 , p . 1 0 .

9 Th e H o n . N ico la Ro x o n M P , A tto r n ey - G en er al, House of Representatives Hansard,

1 0 O cto b er 2 0 1 2 , p . 1 1 7 6 7 .

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Page 7

Length of the exemption

2.9 The length of time for which there will be no legal right of public access to PBO documents was addressed by the Australian Information Commissioner and the Freedom of Information Commissioner in their submission. The Commissioners

observed:

In effect, that will be 20 years after a PBO document was created (the open access period currently set at 28 years is being reduced progressively to 20 years). This archival open access principle also applies to other Commonwealth agency documents that are exempt under the FOI Act, but there is an important difference.

Many other FOI exemptions contain a qualifying phrase or principle that can result in a document that is initially exempt losing that status before the archival open access period is reached.10

2.10 The Commissioners raised the question of whether a time limitation should be placed on the operation of the PBO exemption from the FOI Act. The Commissioners went on to note that the Attorney-General in her second reading speech, indicated that

the policy rationale for the PBO exemption is to provide parliamentarians with access to independent and non-partisan budget analysis over the entire course of the three- year election cycle.11

2.11 Based on the linkage of the policy rationale to the election cycle, the Commissioners therefore suggested that, following the election of a new government, the rationale for exempting documents from the former government may not be the same. The Commissioners did not make a formal proposal to change the length of the

exemption, but indicated that the matter may be considered further in the review of the FOI Act (which has recently been announced by the Attorney-General).10 11 12

2.12 In response to this issue, the Attorney-General's Department informed the committee that the 20-year period is appropriate:

While the Department recognises that the need for confidentiality for PBO documents and PBO-related documents will reduce over time, we consider that maintaining the 20 year open access period is appropriate. While the work of the PBO is directed at financial analysis and costings it may also be highly controversial and sensitive in nature...Any reduction in the open

access period would undermine the effective operation of the PBO as senators and members would be reluctant to use its services if they thought

10 Office of the Australian Information Commissioner, Submission 3, pp 1-2.

11 Office of the Australian Information Commissioner, Submission 3, p. 2.

12 Office of the Australian Information Commissioner, Submission 3, p. 2, and the Hon. Nicola Roxon MP, Attorney-General and Minister for Emergency Management, Review of the FOI Act, media release, 31 October 2012, http://www.attomeygeneral.gov.au/Media-releases/Pages/2012/Fourth%200uarter/310ctober2012ReviewoftheFQIAct.aspx (accessed

8 November 2012).

Page 8

that their confidential requests would be made publicly available sooner than expected.13

Committee view

2.13 The committee acknowledges that the Australian Information Commissioner and the Freedom of Information Commissioner questioned whether there should be a time limit on the PBO exemption for the FOI Act, and the committee notes that this issue may be considered further in the context of the impending FOI Act review. The committee agrees that it is appropriate for there to be no requirement to neither confirm nor deny the existence of a PBO document relating to a confidential request for PBO services by parliamentarians. From the evidence received, the committee concludes that the amendments will facilitate the integrity and effectiveness of the PBO and, accordingly, recommends that the Senate pass the Bill.

2.14 In relation to the types of documents that may be the subject of the proposed new exemption, the committee understands that the test is a 'dominant purpose' one - that is, the exemption will apply to documents that are prepared by departments and

agencies for the dominant purpose of providing information to the PBO relating to a confidential request, and that it would not apply to documents prepared or held in the ordinary course of business by those departments and agencies (unless another

exemption applies). The committee also understands that the new exemption is modelled on the existing test under the FOI Act for the exemption of Cabinet documents. In the committee's view, however, neither of these points has been articulated clearly in the EM to the Bill (the Cabinet documents 'model' is not mentioned at all). Accordingly, the committee considers that the EM should be revised and reissued to include a more comprehensive explanation of the application of the new exemption to documents held by departments and agencies.

Recommendation 1

2.15 The committee recommends that the Explanatory Memorandum to the Bill be revised and reissued to explain clearly that the Bill's proposed new exemption:

" applies only to documents prepared by departments and agencies for the 'dominant purpose' of providing information to the Parliamentary Budget Office or the Parliamentary Budget Officer relating to a confidential request, and that it does not apply to documents prepared or held by those departments and agencies in the ordinary course of their business or activities; and

" is modelled on the existing exemption under the Freedom of Information Act 1982 for Cabinet documents.

13 Attorney-General's Department, Submission 4, p. 2.

232

Page 9

Recommendation 2

2.16 Subject to Recommendation 1, the committee recommends that the Senate pass the Bill.

Senator Trish Crossin

Chair

233

234

APPENDIX 1

SUBMISSIONS RECEIVED

Submission Number

1

2

3

4

Submitter

Parliamentary Budget Office

The Treasury and Department of Finance and Deregulation

Office of the Australian Information Commissioner

Attorney-General's Department

236

The Senate

Legal and Constitutional Affairs

Legislation Committee

Law Enforcement Integrity Legislation Amendment Bill 2012 [Provisions]

November 2012

© Commonwealth of Australia

ISBN: 978-1-74229-720-0

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

MEMBERS OF THE COMMITTEE

Members

Senator Patricia Crossin, Chair, ALP, NT

Senator Gary Humphries, Deputy Chair, LP, ACT

Senator Sue Boyce, LP, QLD

Senator Mark Fumer, ALP, QLD

Senator Louise Pratt, ALP, WA

Senator Penny Wright, AG, SA

Participating Member

Senator Michaelia Cash, LP, WA

Secretariat

Ms Julie Dennett

Ms Monika Sheppard

Ms Elise Williamson

Committee Secretary

Senior Research Officer

Administrative Officer

Suite S 1.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

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TABLE OF CONTENTS

MEMBERS OF THE COM M ITTEE.....................................................................iii

ABBREVIATIONS.....................................................................................................vii

RECOMMENDATION.............................................................................................. ix

CHAPTER 1 ....................................................................................................................1

Introduction..................................................................................................................1

Overview of the Bill...................................................................................................1

Key provisions of the Bill..........................................................................................2

Conduct of the inquiry............................................................................................... 3

Acknowledgement......................................................................................................3

Note on references..................................................................................................... 3

CHAPTER 2 ....................................................................................................................5

Key issues.......................................................................................................................5

Introduction of targeted integrity testing .................................................................. 5

Enhancement of the powers of the Chief Executive Officer of Customs .............. 9

Committee view........................................................................................................18

APPENDIX 1................................................................................................................ 19

SUBMISSIONS RECEIVED............................................................... 19

APPENDIX 2 ................................................................................................................21

WITNESSES WHO APPEARED BEFORE THE COMMITTEE ................... 21

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ABBREVIATIONS

ACCAustralian Crime Commission

ACLEI Australian Commission for Law Enforcement

Integrity

AFP Australian Federal Police

AUSTRACAustralian Transaction Reports and Analysis Centre

CEO Chief Executive Officer

controlled operations regimePart IAB of the Crimes Act 1914 (Cth)

Crimes Act Crimes Act 1914 (Cth)

Customs Administration Act Customs Administration Act 1985 (Cth)

Customs Australian Customs and Border Protection Service

DAFF Department of Agriculture, Fisheries and Forestry

Department Attorney-General's Department

Integrity Commissioner Act Law Enforcement Integrity Commissioner Act 2006 (Cth)

integrity testing regime Proposed new Part *ô*ë*í*ë of the Crimes Act 1914 (Cth)

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RECOMMENDATION

Recommendation 1

2.53 The committee recommends that the Senate pass the Bill.

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CHAPTER 1

Introduction

1.1 On 19 September 2012, the Law Enforcement Integrity Legislation Amendment Bill 2012 (Bill) was introduced into the House of Representatives by the Minister for Justice, the Hon Jason Clare MP (Minister).1 On 20 September 2012, the Senate referred the Bill to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 20 November 2012.1 2 On 29 October 2012, the House of Representatives passed the Bill3 and, on 30 October 2012, the Bill was introduced into the Senate.4

1.2 According to the Explanatory Memorandum (EM), the Bill introduces:

...a range of measures to increase the resistance of Commonwealth law enforcement agencies to corruption and to enhance the range of tools available to law enforcement agencies to respond to suspected corruption.5

1.3 In introducing the proposed legislation, the Minister stated:

The vast majority of Commonwealth law enforcement officers are good, honest, hardworking people. But it is an unfortunate fact that criminals target law enforcement officers. Organised crime groups actively target our

law enforcement officers because of the nature of the work that they do * and because of their access to sensitive information...There is no place for corruption in the public sector.6

Overview of the Bill

1.4 To achieve its intended objectives, the Bill contains three key measures:

" introduction of targeted integrity testing for staff members of the Australian Federal Police (AFP), the Australian Crime Commission (ACC), and the Australian Customs and Border Protection Service (Customs);

" extension of the jurisdiction of the Australian Commission for Law

Enforcement Integrity (ACLEI), to include the Australian Transaction Reports and Analysis Centre, CrimTrac, and prescribed staff of the Department of Agriculture, Fisheries and Forestry; and

1 House of Representatives, Votes and Proceedings, No. 134-19 September 2012, p. 1822.

2 Journals of the Senate , No. 114-20 September 2012, pp 3043-3044.

3 House of Representatives, Votes and Proceedings, No. 139-29 October 2012, p. 1905.

4 Journals of the Senate, No. 119-30 October 2012, p. 3191.

5 Explanatory Memorandum (EM), p. 1.

6 The Hon Jason Clare MP, Minister for Justice, House of Representatives Hansard, 19 September 2012, p. 11178. For similar comments, also see: the Hon Jason Clare MP, Minister for Justice, 'You don't have anything to fear if you don't have anything to hide', Daily Telegraph, 28 September 2012.

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" enhancement of the powers of the Chief Executive Officer (CEO) of Customs, to deal with suspected cases of corrupt conduct, and to align those powers with the powers currently available to the AFP Commissioner and the CEO of the ACC.7

1.5 The Financial Impact Statement in the EM advises that two of the proposed key measures - the introduction of targeted integrity testing and the enhancement of the CEO of Customs' powers - will have no financial impact; however, to support its expanded jurisdiction, ACLEI will be provided with additional funding of

$1.5 million over two years (2013-2014 and 2014-2015).8

Key provisions of the Bill

1.6 Submitters and witnesses to the inquiry raised concerns in relation to Part 1 of Schedule 1 of the Bill (introduction of targeted integrity testing) and Schedule 2 of the Bill (enhancement of the powers of the CEO of Customs). The committee's report therefore describes and considers only those proposed provisions. The EM sets out the provisions of the Bill in detail.

Introduction of targeted integrity testing

1.7 As the EM explains:

[Integrity tests are] operations designed to test whether a public official will respond to a simulated or controlled situation in a manner that is illegal or would contravene an agency's standard of integrity. For example, a test may involve the insertion of false information into a database to test whether an official, acting cormptly, may seek to unlawfully disclose that information to organised crime figures.9

1.8 Part 1 of Schedule 1 of the Bill is intended to give effect to recommendations made by the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity,10 11 by amending the Crimes Act 1914 (Cth) (Crimes Act).11 The proposed amendments include the insertion of proposed new Part *ô*ë*í*ë *Integrity testing into the Crimes Act (integrity testing regime), to introduce an integrity testing regime for the AFP, the ACC, and Customs.

7 EM, p. 1.

8 EM, p. 1.

9 EM, p. 10.

10 Inquiry into Integrity Testing, November 2011, available at: http://www.aph.gov.au7Parliamentary Business/Committees/Senate Committees?url=aclei ctt e/completed inauiries/index.htm (accessed 21 September 2012).

11 EM, p. 10.

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Enhancement of the powers of the CEO of Customs

1.9 Schedule 2 of the Bill amends the Customs Administration Act 1985 (Cth), to introduce a range of measures to increase the corruption resilience of Customs.12 These measures include enhanced powers for the CEO to make orders, including in respect of mandatory reporting, and the ability for authorised officers to require or direct drug and alcohol testing of Customs workers.

Conduct of the inquiry

1.10 The committee advertised the inquiry in The Australian on 26 September 2012. Details of the inquiry, including links to the Bill and associated documents, were placed on the committee's website at

www.aph.Eiiov.au/senate legalcon. The committee also wrote to a number of organisations and individuals, inviting submissions by 12 October 2012. Submissions continued to be accepted after that date.

1.11 The committee received 11 submissions, which are listed at Appendix 1. All submissions were published on the committee's website.

1.12 The committee held a public hearing on 1 November 2012 at

Parliament House in Canberra. A list of witnesses who appeared at the hearing is at Appendix 2, and the Hansard transcript is available through the committee's website.

Acknowledgement

1.13 The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.14 References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

12 EM, p. 45.

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CHAPTER 2 Key issues

2.1 Those agencies affected by the measures contained in the Bill, and which made submissions to the inquiry, expressed strong support for the proposed legislation.1 For example, the Australian Commission for Law Enforcement Integrity

(ACLEI) considered:

...the new arrangements [introduced in the Bill] to be timely and

appropriate measures that are matched to current and emerging changes in the organised crime threat picture and, accordingly, to law enforcement corruption risk.1 2

2.2 Liberty Victoria and the Crime and Misconduct Commission Queensland also supported the Bill. In Liberty Victoria's view, the Bill 'sensibly' balances an individual's right to privacy with appropriate limitations on undue interference.3

2.3 Three submitters - Civil Liberties Australia (CLA), the Community and Public Sector Union (CPSU) and the Australian Federal Police Association (AFPA) - raised specific concerns in relation to the proposed measures in Part 1 of Schedule 1 of the Bill (introduction of targeted integrity testing), and Schedule 2 of the Bill (enhancement of the powers of the Chief Executive Officer (CEO) of the Australian Customs and Border Protection Service (Customs)).

Introduction of targeted integrity testing

2.4 ACLEI submitted that Part 1 of Schedule 1 of the Bill reflects and responds to the challenges involved in investigating corrupt conduct, while ensuring accountability, protecting the rights and reputations of individuals, and providing

appropriate legal protection for officers who conduct integrity testing operations.4 Customs and the Australian Crime Commission (ACC) agreed that targeted integrity testing would enhance and strengthen their existing integrity measures, with both agencies emphasising that the tests will be 'intelligence-led'.5

1 Australian Crime Commission (ACC), Submission 2, p. 4; CrimTrac, Submission 3, p. 1; Department of Agriculture, Fisheries and Forestry, Submission 6, p. 4; Australian Commission for Law Enforcement Integrity (ACLEI), Submission 7, p. 4; Australian Customs and Border Protection Service (Customs), Submission 10, pp 6 and 17.

2 Submission 7, p. 4.

3 Submission 8. p. 1. Also see Crime and Misconduct Commission Queensland, Submission 9 , p. 1.

4 Submission 7, p. 7. Also see Liberty Victoria, which described a system of integrity testing as a reasonable mechanism: Submission 8, p. 1.

5 Submission 10, p. 7 and Submission 2, pp 1-2, respectively.

Annual reporting to Parliament

2.5 The AFP A acknowledged the importance of maintaining the integrity of the Australian Federal Police (AFP), but noted that AFP employees are already subject to an existing AFP integrity regime.6 In this context, and in view of the ACLEI's current

oversight of the AFP in relation to corruption issues, the AFP A questioned whether Part 1 of Schedule 1 of the Bill serves a legitimate objective:

[T]he Bill contributes to a regime which stretches the boundaries of the Right to Protection Against Arbitrary and Unlawful Interference with Privacy provided in Article 17 of the [International Covenant on Civil and Political Rights]... The AFP A recommends that a Statement of

Compatibility with Human Rights, with a structure similar to that provided in the Explanatory Memorandum pursuant to Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), be prepared for each ACLEI annual report, to monitor the ongoing impact of integrity testing on targets.7

2.6 Mr Rogan McMahon-Hogan from the AFP A indicated that this

recommendation could provide a starting point for protecting the rights of AFP employees.8 However, a representative from the Attorney-General's Department (Department) informed the committee that the annual reporting of integrity testing operations, and their impact on individual officers, raises several other concerns:

We would have a concern that that might, firstly, disclose methodology that is used in the integrity testing potentially. Depending on the level of information, it might be possible to identify targeting or even particular targets.

Also...even disclosure of things like the number of integrity tests could potentially undermine deterrence value, if it is clear to officers about the number of those tests that are being conducted each year *they may be able

to better gauge whether they would be subject to one, and we think the fact that officers are not aware of that will ensure that the regime has an overall greater deterrence value for corruption.9

Concurrent operation of in tegrity regimes

2.7 Part V (Professional standards and AFP conduct and practice issues) of the Australian Federal Police Act 1979 (Cth) sets out a professional standards integrity regime for AFP employees. The AFP A submitted that the Bill does not adequately consider the concurrent operation of the existing regime and the proposed regime:

[N]or does [the Bill] provide grounds on which a referral of [an

investigation under the existing regime] containing multiple potential elements of corruption will be warranted. It is a realistic assumption that

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6 Submission 5, p. 5.

7 Submission 5, p. 6.

8 Committee Hansard, 1 November 2012, p. 5.

9 Ms Sarah Chidgey, Attorney-General's Department (AGD), Committee Hansard, 1 November 2012, p. 8.

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acts of corruption will be combined with lesser acts which may breach professional standards, with the result that AFP members may be subjected to concurrent investigations with conflicting and potentially confusing requirements.10 11

2.8 The AFP A recommended that the Bill explicitly provide that any behaviour, which is the subject of an AFP Professional Standards investigation, cannot also be the subject of an integrity testing operation.11 The Department rejected this proposition on the grounds that it would not be appropriate:

As a powerful investigative tool, it is intended that integrity testing only be used for the most significant cases of misconduct, where criminal behaviour is suspected. There is a wide spectrum of misconduct which could give rise to an AFP Professional Standards investigation. At the outset of any investigation, the extent of any suspected misconduct is likely to be unclear. It is important that the AFP is not precluded from using integrity testing as an investigative tool in circumstances where a Professional Standards investigation has commenced.12

2.9 The Department also referred to proposed new section 15JE of the

Crimes Act 1914 (Cth) (Crimes Act) (item 29 of Schedule 1 of the Bill), which allows the Integrity Commissioner to authorise an integrity testing authority for staff members of the AFP in relation to corruption issues:

While the Integrity Commissioner often works in collaboration with the AFP, it is an important aspect of the role [of] the Integrity Commissioner that he be able to conduct investigations independent from the agencies within his jurisdiction. To limit the Integrity Commissioner's power to investigate where an internal AFP investigation is underway would be an inappropriate interference with the independence of the office.13

Role of the Integrity Commissioner

2.10 In relation to integrity testing authorities, the AFP A argued that the Integrity Commissioner should have greater involvement in the approval of an authority.

2.11 The AFP A submitted that the circumstances in which an application can be made for an integrity testing authority do not appear to be transparent (proposed new subsection 15JE(1) of the Crimes Act; item 29 of Schedule 1 of the Bill):

As it stands [,] there is no external oversight of the authorisation to conduct investigations. Unfortunately, this would leave the possibility of non-integrity, organisational factors influencing decisions on whether or not to conduct an integrity test.14

10 Submission 5, p. 7.

11 Submission 5, p. 7.

12 Submission 11, p. 4.

13 Submission 11, p. 4.

14 Supplementary Submission 5, p. 1.

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2.12 In its supplementary submission, the AFP A stated that 'it is most appropriate for the Integrity Commissioner to authorise these investigations'.13 Alternatively, the AFPA proposed that the Integrity Commissioner be notified of and oversee the authorisation of integrity testing operations, a function described in evidence as 'dual authorisation':

[The AFPA] would like to see dual authorisation with the ACLEI commissioner to authorise an investigation whether it is or is not corruption integrity testing...[I]t is an anticorruption measure in itself to ensure that there is an independent person authorising the testing and that it is not done internally...The danger with this model, as it is written at the moment, is that a senior officer who is corrupt could organise integrity testing on an innocent police officer.15 16

Departmental and Customs' responses

2.13 At the public hearing, a departmental officer pointed to proposed new sections 15JI and 15JK of the Crimes Act (item 29 of Schedule 1 of the Bill), which require the Integrity Commissioner to be notified of the grant or variation of an integrity testing authority, and also the oversight role of the Integrity Commissioner in relation to corruption issues under the Law Enforcement Integrity Commissioner Act 2006 (Cth) (Integrity Commissioner Act):

[TJhere is already a very extensive and sufficient level of oversight by the Integrity Commissioner of integrity testing.

In addition to that, the use of any covert or coercive powers as part of an integrity test still need to go through all of the existing authorisation processes *say, for controlled operations, or to a judge for a surveillance device warrant et cetera. So there is independent oversight in that respect of a number of the coercive powers that could be used as part of an integrity [test].17

2.14 The officer added that existing integrity measures prevent senior officers in agencies under ACLEI's jurisdiction from abusing the power granted under proposed new subsection 15JE(1) of the Crimes Act:

[Ojfficers can make complaints to agencies like the Ombudsman or indeed an officer could complain to the Integrity Commissioner if they felt that they were being inappropriately targeted or corruptly targeted with an integrity test. So there is a whole surrounding set of misconduct procedures

15 Supplementary Submission 5, p. 1.

16 Mr Jon Hunt-Sharman, AFPA, Committee Hansard, 1 November 2012, p. 7.

17 Ms Sarah Chidgey, AGD, Committee Hansard, 1 November 2012, p. 9.

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and safeguards that would apply, as they would apply to authorising a range of investigation techniques.18

2.15 In its submission, Customs addressed the issue of how it will ensure that the measure proposed in Part 1 of Schedule 1 of the Bill is used only to enhance integrity and combat corruption. In particular, Customs highlighted proposed statutory safeguards within the Bill:

" the prerequisite criteria for the authorisation of an integrity testing operation (proposed new paragraph 15JG(2)(a) of the Crimes Act; item 29 of Schedule 1 of the Bill);

" the limited number of senior officers who will be able to authorise an integrity testing authority (proposed new section 15JE of the Crimes Act; item 29 of Schedule 1 of the Bill);

" the criminalisation of unauthorised disclosure of information relating to an integrity testing operation (proposed new sections 15JQ and 15JR of the Crimes Act; item 29 of Schedule 1 of the Bill); and

" the new notification and reporting requirements (proposed new sections 15JI and 15JS of the Crimes Act; item 29 of Schedule 1 of the Bill).19

Enhancement of the powers of the Chief Executive Officer of Customs

2.16 Schedule 2 of the Bill amends the Customs Administration Act 1985 (Cth) (Customs Administration Act) to introduce a range of measures, including enhanced powers for the CEO of Customs, and the ability for authorised officers to require or direct drug and alcohol testing of Customs workers.

2.17 ACLEI supported enhancing Customs' integrity arrangements,20 and noted that the proposed provisions reflect many priority areas identified in an internal review of Customs' integrity arrangements and anti-corruption strategies, which was jointly conducted by ACLEI and Customs in 2012:

These measures will bring [Customs'] anti-corruption arrangements into closer alignment with those of the Australian Crime Commission and the Australian Federal Police, and contribute to the 'common integrity platform' which has the [Integrity Commissioner Act at] its centre.21

2.18 In its submission and at the public hearing, the CPSU raised several concerns with the proposed measure(s).

18 Ms Sarah Chidgey, AGD, Committee Hansard, 1 November 2012, p. 9. Most integrity tests will involve a comuption issue: see Ms Sarah Chidgey, AGD, Committee Hansard, 1 November 2012, p. 10. For that reason, the senior officer concerned would already be known to the Integrity Commissioner due to notification requirements under the Law Enforcement Integrity Commissioner Act 2006 (Cth): see Mr Michael Pezzullo, Customs,

Committee Hansard, 1 November 2012, p. 10.

19 Submission 10, pp 13-14.

20 Submission 7, p. 8.

21 Submission 7, p. 9.

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Mandatory reporting pursuant to CEO's Orders

2.19 Proposed new section 4B of the Customs Administration Act (item 16 of Schedule 2 of the Bill) provides the CEO of Customs with the power to issue written orders in relation to the control of Customs (CEO's Orders), including the mandatory reporting of certain matters set out in proposed new subsection 4B(2) of the Act.

2.20 Ms Brooke Muscat-Bentley from the CPSU told the committee:

[Our] [m]embers understand that they would need to report criminal or corrupt activity but are concerned that misconduct is quite broad and, because the CEO can determine that or change what misconduct is, they might not be aware of that misconduct and therefore could be subject to a code of conduct themselves. They are also not really clear about who they would be reporting that misconduct to and what protections would be put in place if they were reporting misconduct of a senior employee.22

2.21 The CPSU suggested that the definition of 'serious misconduct' (item 14 of Schedule 2 of the Bill) should be limited to corrupt and criminal behaviour.23

Departmental and Customs' responses

2.22 Noting that the Bill does not require mandatory reporting, the Department submitted that, in the event an order is made under proposed new subsection 4B(2) of the Customs Administration Act:

Any such order will make clear the person or persons to whom a [Customs] officer is required to make the disclosure, and the nature of information that is required to be disclosed.24

2.23 Customs also advised its intention to establish an Integrity Support and Referral Network, to provide advice and support to Customs staff regarding integrity and mandatory reporting obligations:

Such a facility will be critical if mandatory reporting of misconduct and corruption is introduced, as it provides a fair and confidential mechanism for staff to meet their reporting obligations. A similar program has been successfully run within the AFP for 16 years.25

2.24 The Department did not consider that it would be helpful for an order under proposed new subsection 4B(2) to cover only criminal or corrupt conduct:

[S]uch a limitation would not be of assistance in enabling Customs workers to know that misconduct should be reported as it would require Customs

22 Committee Hansard, 1 November 2012, p. 3.

23 Submission 1, p. 6.

24 Submission 11, p. 5.

25 Submission 10, p. 12. ACLEI also confirmed that it will work with Customs to develop the professional reporting support network: Submission 7, p. 10.

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workers to make an assessment of whether observed misconduct amounts to corruption or criminal activity.26

Enhanced power to make a declaration

2.25 Proposed new section 15A of the Customs Administration Act provides that the CEO of Customs may make a declaration that he or she believes, on reasonable grounds, that a staff member's conduct or behaviour, or any part of it, amounts to serious misconduct by the staff member (the declaration making power).27 The effect of the declaration will be to exclude the application of certain provisions of the Fair Work Act 2009 (Cth) (proposed new subsection 15A(3) of the Act).

2.26 ACLEI supported the proposed declaration-making power on the ground that it will provide 'a specific legislative basis for the [CEO of Customs] to disrupt corruption...when serious misconduct or corrupt conduct is established to a relevant level of satisfaction'.28

2.27 However, the CPSU strongly objected to proposed new subsection 15A(3) of the Customs Administration Act:

[It] will see Customs officers stripped of their right to unfair dismissal protections where the employee is terminated for serious misconduct and where the Customs CEO issues a certificate which has the effect of removing that right. This is quite an extraordinary powerf]29

CPSU's key concerns

2.28 Ms Rebecca Fawcett from the CPSU identified four key concerns with proposed new subsection 15A(3):

[First], if a Customs employee is terminated in this way, they will have no recourse to Fair Work Australia to challenge an incorrect decision. That is a basic workplace right that is enjoyed by every other Australian worker[.]

[Second], these measures would strip employees of their basic right to procedural fairness. The employee will have no right to answer allegations or respond before they are terminated. [CPSU considers] that to be at odds with our international obligations, namely the [International Labour

Organisation] Termination of Employment Convention[.]

[Third], if passed, the Commonwealth will be the only jurisdiction in the land to remove these basic rights from its law enforcement and national security employees in this way. All of the state and territory jurisdictions give the agency head of their police forces the right or ability to dismiss employees for loss of confidence or serious misconduct, but all of the other jurisdictions maintain an appeal mechanism of some kind[.]

__________________________________________________________ ____________________ ______Page 11

26 Submission 11, pp 5-6.

27 Item 19 of Schedule 2 of the Bill.

28 Submission 7, p. 9.

29 Ms Rebecca Fawcett, Community and Public Sector Union, Committee Hansard, 1 November 2012, p. 2.

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[Fourth], [CPSU believes] this power will lead to poor decision making and in the worst cases would be open to abuse. It will allow the Customs CEO to terminate the employment of a Customs officer with no real oversight.30

2.29 The CPSU advocated the removal of proposed new section 15A from the Bill or, in the alternative, that the employee protections within Schedule 2 of the Bill be enhanced by, for example:

" allowing the CEO of Customs to stand down an employee accused of serious misconduct pending investigation into the matter;

" creating a process for external review of a declaration made under proposed new subsection 15A(2); and

" including procedural requirements in proposed new section 15A - such as, that the CEO of Customs can only issue a declaration on advice of a panel that includes at least one member who is independent of Customs.31

Government responses

2.30 The EM to the Bill states that proposed new section 15A of the Customs Administration Act applies only when a staff member's employment has been terminated in accordance with section 29 of the Public Sewice Act 1999 (Cth).32 In its submission, the Department emphasised:

The power to make a declaration of serious misconduct only applies once a person has been dismissed and is separate to the dismissal process. The new power provided in the Bill does not alter or reduce the obligation on [Customs] to accord the person fair process when determining whether or not they have breached the Code of Conduct, and if they have, whether they

should be dismissed as a sanction for that breach.33

2.31 In correspondence to the Parliamentary Joint Committee on Human Rights, the Minister explained in some detail how the dismissal process is to be extended to accommodate the proposed power in new subsection 15A:

It is anticipated that the agency's procedures will be amended to provide that where a sanction delegate is considering termination of employment as a sanction for misconduct, the delegate will also be required to consider whether or not the matter is one for which it may be appropriate for the CEO to consider a declaration of serious misconduct if the delegate does terminate employment. If [so]...the procedures will require that the delegate indicate this to the employee as part of the correspondence that goes to the employee from the delegate asking the employee to 'show cause' as to why his or her employment should not be terminated.

30 Committee Hansard, 1 November 2012, p. 2.

31 Submission 1, pp 6-7.

32 EM, p. 52. Also see the end note to proposed new section 15A of the Customs Administration Act 1985 (Cth).

33 Submission 11, p. 5. For similar comments, see Mr Michael Pezzullo, Customs, Committee Hansard, 1 November 2012, p. 10.

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[T]his correspondence would outline the reasons why, in the delegate's view, if the sanction of dismissal is imposed that dismissal would warrant a referral to the CEO for consideration of a declaration of misconduct. This ensures that, in responding to the 'show cause' letter, the employee understand not only the implication of the potential sanction but also understands that the delegate considers that the case may satisfy the criteria for the making of a declaration of serious misconduct such that the employee can address that issue as well as providing any mitigating information going to why dismissal is not an appropriate sanction in the circumstances.34

2.32 Customs also noted that the Bill does not affect Customs' obligations under the Public Service Act 1999 (Cth) to accord its employees fair process when investigating allegations of serious misconduct. Further:

The making of a declaration of serious misconduct will not limit other legal avenues available to a dismissed employee, such as claims under anti-discrimination legislation and under Part 3-1 of the [Fair Work Act 2009 (Cth)] (adverse action). As a decision to dismiss a [Customs] employee is a decision made under an enactment, the possibility of review in accordance with the Administrative Decisions (Judicial Review) Act 1977 (Cth) continues.35

2.33 In response to the CPSU's concerns regarding procedural requirements, Customs confirmed that, as indicated by the Minister in his second reading speech,36 the agency will implement a panel independent of its CEO:

The role of the panel is to advise the CEO, on each occasion [the use of the declaration making power is being considered], whether or not a written declaration of serious misconduct is appropriate, given the details of [the] particular dismissal, the legislative criteria and the connection necessary to the agency's law enforcement functions.37

2.34 Two further safeguards were noted by Customs in its submission: the scrutiny of the use of the declaration making power by way of a report to the Minister (proposed new subsection 15A(7) of the Customs Administration Act); and the requirement for a copy of the declaration to be provided to the staff member (proposed new subsection 15A(6) of the Act).

34 Parliamentary Joint Committee on Human Rights (PJC-HR), Sixth Report of 2012: Bills introduced 9-11 October 2012; Legislative Instruments registered with the Federal Register of Legislative Instruments 20 September-16 October 2012, October 2012, Appendix 1, letter from the Minister for Home Affairs and Justice, the Hon Jason Clare MP dated 29 October 2012, P-7.

35 Submission 10, pp 15-16. For similar comments, also see EM, pp 6-7.

36 The Hon Jason Clare MP, Minister for Justice, House of Representatives Hansard, 19 September 2012, p. 11181.

37 Submission 10, p. 15.

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2.35 In correspondence to the Senate Standing Committee for the Scrutiny of Bills, the Minister noted further that proposed new subsection 15A(1) of the Customs Administration Act contains more than one criterion, of which the CEO must be satisfied in order to make a declaration of serious misconduct:

[WJhether the conduct amounts to 'serious misconduct' is only one aspect of the criteria...The other aspect is that the employee's behaviour must be having, or is likely to have, a damaging effect on:

(i) the professional self-respect or morale of some or all of the members of the staff of the agency, or

(ii) the reputation of the agency with the public, or any section of the public, or with an Australian or overseas government, or with a person or body (however described) to whom the CEO may authorise disclosure of information under section 16 of the [Customs Administration Act].38

2.36 The Minister added:

[T]he explanatory memorandum indicates that the conduct concerned must also 'relate to [Customs'] law enforcement powers'. The need for a nexus between the conduct and the agency's law enforcement functions is consistent with the policy objective behind this power. This objective is to ensure that employees of the agency who are proven to have engaged in conduct of the necessary character, relating as it does to the agency *s law enforcement role, cannot be reinstated to employment within the agency, thereby compromising the work of the agency, ongoing investigations and adversely impacting on the morale of staff.39 40

2.37 The Department clarified further:

[T]he statement in the Explanatory Memorandum exists to provide context around the situations in which it may be used. Including an express limitation in the Bill would not be desirable as it could encourage technical challenges to the exercise of the power based on the definition of a law enforcement function. It is important that the power be able to be used in all

" . An

necessary circumstances.

38 Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Thirteenth Report of 2012, 31 October 2012, letter from the Minister for Home Affairs and Justice, the Hon Jason Clare MP dated 29 October 2012, pp 2-3.

39 Scrutiny of Bills Committee, Thirteenth Report of 2012, 31 October 2012, letter from the Minister for Home Affairs and Justice, the Hon Jason Clare MP dated 29 October 2012, p. 3. Also see: EM, p. 51.

40 Answer to question on notice, received 7 November 2012, p. 3.

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Drug and alcohol testing

2.38 Item 21 of Schedule 2 of the Bill inserts proposed new sections 16B-16G into the Customs Administration Act, to create a new regime under which Customs workers can be required or directed to undergo drug and alcohol testing.

2.39 ACLEI supported the proposed measure:

The use by an employee of illicit drugs (including border controlled substances, such as steroids) would bring him or her into contact with criminals who supply or distribute these substances. An employee who uses

unlawful or illegally-imported substances is compromised by the action and any witnesses to it, and is therefore vulnerable to corrupt influence. Accordingly, broad-based drug testing of employees is an important corruption deterrence and risk-awareness measure.41

2.40 Customs informed the committee that, apart from testing conducted by the Civil Aviation Safety Authority (which applies to Customs staff working at airports), the agency does not have the power to determine whether a worker is under the influence of illicit drugs or alcohol. Customs therefore supported the proposed drug and alcohol testing regime, emphasising that the legislative amendments will ensure high standards of integrity, health, and safety, as well as allow for the protection of Australia's border.42

2.41 In addition, Customs noted that the agency is developing a comprehensive Drug and Alcohol Management Program, to underpin the proposed regime. Some features of the program include:

" development of a dedicated education and awareness process;

" development of a robust sampling methodology;

" intelligence-led, risk-based identification of employees for dmg and alcohol testing; and

" creation of a drug and alcohol response program.43 44

2.42 The Minister advised the Parliamentary Joint Committee on Human Rights that Customs' program will implement current best practice to meet Australian standards, and these standards will be reflected in a number of anticipated 44

arrangements.

41 Submission 7, p. 9.

42 Submission 10, p. 9.

43 Submission 10, p. 14.

44 PJC-HR, Sixth Report of 2012: Bills introduced 9-11 October 2012; Legislative Instruments registered with the Federal Register of Legislative Instruments 20 September-16 October 2012, October 2012, Appendix 1, letter from the Minister for Home Affairs and Justice, the Hon Jason Clare MP dated 29 October 2012, pp 3-4.

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CPSU concerns

2.43 In principle, the CPSU did not object to the proposed drug and alcohol testing regime; however, Ms Muscat-Bentley stated:

[Our members have] some concerns based on a series of unknowns, primarily what safeguards will be in place to ensure [that] the privacy of employees will be maintained, particularly around the use of prescription medication.45

2.44 The CPSU argued that the circumstances in which drug and alcohol testing will be permitted 'go beyond the stated purposes of the Bill and the [behaviour] that the Bill is trying to combat':

The Explanatory Memorandum to the Bill states that the purpose of these amendments is to 'enhance the powers of the CEO of [Customs] to deal with suspected corrupt conduct'. However, the proposed sections 16B-16H of the Customs [Administration] Act would permit any employee to be required to undergo a drug or alcohol test at any time regardless of whether they were suspected of corruption.46

2.45 While the CPSU considered the intention of the proposed regime to be sound, its submission stated that the regime would be open to abuse, and wider

implementation of testing could undermine the level of trust between Customs and its employees:

There is a risk that employees could be unfairly targeted for tests and individuals or groups of employees could be harassed by repeated requests for drug and alcohol tests. Furthermore, the Bill does not place limits on how the results from the tests may be used and whether results can be used in non-corruption related disciplinary proceedings.47

2.46 In this context, the CPSU particularly identified the capture of prescription medication within the definition of 'prohibited drug' as a concern:

Although Customs have indicated that this broad definition is only intended to capture those employees who abuse prescription drugs, serious incursions into an employee's privacy may be required to determine whether an employee is abusing a prescription drug or not. This would include accessing confidential medical records and asking employees to justify their use of certain medications.48

2.47 The CPSU called for the proposed legislation to be as specific as possible in setting out the range of situations in which alcohol and drug testing is permitted, and

45 Committee Hansard, 1 November 2012, p. 2.

46 Submission 1, p. 2.

47 Submission 1, p. 2.

48 Submission 1, p. 2.

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how the results of that testing can be used. Its submission especially recommended that prescription medications should be excluded from the Bill.49 50

2.48 At the public hearing, Ms Fawcett from the CPSU stated that, alternatively, the Bill needs more safeguards, to ensure that Customs staff who are legitimately using prescription medication, with a prescription, 'do not suffer any kind of adverse action in their employment because they had a medical condition'.30

Government responses

2.49 The Department submitted that proposed new section 16C of the Customs Administration Act, which allows an authorised officer to direct a Customs worker to undergo drug and/or alcohol testing at any time and without reason, is intended to provide for mandatory random testing of Customs workers:

The ability to have a randomised approach is essential to ensure that [Customs] remains drug and alcohol free. The powers to authorise testing under [proposed new] sections 16B and 16D only allow for testing after an incident or allegation has occurred. Section 16C will allow [Customs] to proactively manage potential integrity issues, strengthening integrity in the agency.51

2.50 In relation to the breadth of the definition of 'prohibited drug', the Minister has stated that 'it is not always appropriate to be overly prescriptive in primary legislation', and in the context of the Bill:

[T]he benefits of providing a definition are outweighed by the risks arising from [the] evolving and changing nature of the drag environment...[N]ew drags and their variants are continually entering the market... [Providing a definition of 'prohibited drug' will confine the ability of [Customs] to meet the challenges presented by new drags and will undermine the ability of the agency to maintain a drag free workplace. Defining the term 'prohibited drag' by legislative instrument will provide a lawful and flexible mechanism to allow the CEO of [Customs] to respond quickly to this ever-changing environment.52

_______________________________________________________________________ _____________Page 17

49 Submission 1, pp 2-3.

50 Committee Hansard, 1 November 2012, p. 4.

51 Submission 11, p. 5. Also see PJC-HR, Sixth Report of 2012: Bills introduced 9-11 October 2012; Legislative Instruments registered with the Federal Register of Legislative Instruments 20 September-16 October 2012, October 2012, Appendix 1, letter from the Minister for Home Affairs and Justice, the Hon Jason Clare MP dated 29 October 2012, p. 4.

52 PJC-HR, Sixth Report of 2012: Bills introduced 9-11 October 2012; Legislative Instruments registered with the Federal Register of Legislative Instruments 20 September-16 October 2012, October 2012, Appendix 1, letter from the Mnister for Home Affairs and Justice, the Hon Jason Clare MP dated 29 October 2012, pp 4-5.

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2.51 Responding to the CPSU's comments regarding prescription medications, the Acting CEO of Customs, Mr Michael Pezzullo, commented:

If our officers are engaging in the abuse of illicit drugs, the abuse of what might otherwise be prescribed medication in that they are using it beyond clinical norms and not through prescriptions or turning up to work boozed up, that is not in keeping with the sorts of standards that we believe our

agency should be projecting to the Australian community at large.53

Committee view

2.52 The committee notes the objectives of the Bill, and that most participants in the inquiry supported the proposed measures. While certain aspects of proposed provisions in Part 1 of Schedule 1 of the Bill (introduction of targeted integrity testing) and Schedule 2 of the Bill (enhancement of the powers of the CEO of Customs) concerned some submitters and witnesses, the committee is of the view that the response received from the Department adequately explains and supports the measures, which are designed to prevent corruption in Commonwealth law enforcement agencies and enhance the ability of those agency heads to respond to cases of suspected corruption. The committee also notes the statutory protections and level of oversight provided for throughout the Bill, as well as in existing legislation (such as the Law Enforcement Integrity Commissioner Act 2006 (Cth)).

Recommendation 1

2.53 The committee recommends that the Senate pass the Bill.

Senator Trish Crossin

Chair

53 Committee Hansard, 1 November 2012, p. 13.

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Submission

APPENDIX 1

SUBMISSIONS RECEIVED

NumberSubmitter

1 Community and Public Sector Union

2 Australian Crime Commission

3 CrimTrac

4 Civil Liberties Australia

5 Australian Federal Police Association

6 Department of Agriculture, Fisheries and Forestry

7 Australian Commission for Law Enforcement Integrity

8 Liberty Victoria

9 Crime and Misconduct Commission Queensland

10 Australian Customs and Border Protection Service

11 Attorney-General's Department

ADDITIONAL INFORMATION RECEIVED

1 Joint response to questions on notice provided by the Australian Customs and Border Protection Service and the Attorney-General's Department on 7 November 2012

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APPENDIX 2

WITNESSES WHO APPEARED

BEFORE THE COMMITTEE

Canberra, 1 November 2012

BAKER-GOLDSMITH, Ms Sarah, Principal Lawyer, Australian Commission for Law Enforcement Integrity

CHIDGEY, Ms Sarah, Assistant Secretaiy, Attorney-General's Department

CORNALL, Mr Robert AO, Acting Integrity Commissioner, Australian Commission for Law Enforcement Integrity

FAWCETT, Ms Rebecca, Acting Deputy Secretary, Community and Public Sector Union

HAYWARD, Mr Stephen, Executive Director Operations, Australian Commission for Law Enforcement Integrity

HUNT-SHARMAN, Mr Jon, President, Australian Federal Police Association

McMAHON-HOGAN, Mr Rogan, Senior Legal Officer, Australian Federal Police Association

MUSCAT-BENTLEY, Ms Brooke, Lead Organiser, Community and Public Sector Union

PEZZULLO, Mr Michael, Acting Chief Executive Officer, Australian Customs and Border Protection Service

RAPMUND, Mr Cameron, Senior Legal Officer, Attorney-General's Department

SELLARS, Mr Nicholas, Acting Executive Director, Strategic and Secretariat Branch, Australian Commission for Law Enforcement Integrity

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268

The Senate

Legal and Constitutional Affairs

Legislation Committee

Maritime Powers Bill 2012 [Provisions]

Maritime Powers (Consequential Amendments) Bill 2012 [Provisions]

September 2012

269

© Commonwealth of Australia

ISBN: 978-1-74229-674-6

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

MEMBERS OF THE COMMITTEE

Members

Senator Patricia Crossin, Chair, ALP, NT

Senator Gary Humphries, Deputy Chair, LP, ACT

Senator Sue Boyce, LP, QLD

Senator Mark Fumer, ALP, QLD

Senator Louise Pratt, ALP, WA

Senator Penny Wright, AG, SA

Secretariat

Ms Julie Dennett

Mr CJ Sautelle

Ms Elise Williamson

Committee Secretary

Senior Research Officer

Administrative Officer

Suite SI.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

iii 271

272

TABLE OF CONTENTS

MEMBERS OF THE COM M ITTEE .................................................................... iii

RECOMMENDATION.............................................................................................vii

CHAPTER 1 ....................................................................................................................1

Introduction..................................................................................................................1

Referral of the inquiry............................................................................................... 1

Puipose of the bills.................................................................................................... 1

Background................................................................................................................ 2

Conduct of the inquiry...............................................................................................3

Acknowledgement.....................................................................................................4

CHAPTER 2 ...................................................................................................................5

Key provisions of the bills...........................................................................................5

Maritime Powers Bill 2012.......................................................................................5

Maritime Powers (Consequential Amendments) Bill 2012 .................................. 12

CHAPTER 3 ................................................................................................................. 15

Key issues.....................................................................................................................15

Support for the Bills................................................................................................ 15

Key issues.................................................................................................................16

Committee view.......................................................................................................20

COALITION SENATORS * DISSENTING REPORT .................................... 23

APPENDIX 1................................................................................................................25

SUBMISSIONS RECEIVED....................................................................................25

APPENDIX 2 ................................................................................................................27

WITNESSES WHO APPEARED BEFORE THE COMMITTEE....................27

273

274

RECOMMENDATION

Recommendation 1

3.24 The committee recommends that the Senate pass the Maritime Powers Bill 2012 and the Maritime Powers (Consequential Amendments) Bill 2012.

vii 275

276

CHAPTER 1

Introduction

Referral of the inquiry

1.1 On 21 June 2012, the Senate jointly referred the provisions of the Maritime Powers Bill 2012 and the provisions of the Maritime Powers (Consequential Amendments) Bill 2012 to the Senate Legal and Constitutional Affairs Legislation Committee (committee), for inquiry and report by 20 August 2012. The Senate subsequently agreed to extend the reporting date for this inquiry to

12 September 2012.1

1.2 The two bills were introduced into the House of Representatives by the Attorney-General, the Hon Nicola Roxon MP (Attorney-General), on 30 May 2012, and passed through the House on 20 August 2012.1 2 The bills were introduced into the Senate on 20 August 2012.3

Purpose of the bills

1.3 The purpose of the bills is to establish a framework for the exercise of

maritime enforcement powers in Australian territories.

1.4 The Maritime Powers Bill 2012 (Maritime Powers Bill) seeks to consolidate and harmonise the Commonwealth's existing maritime enforcement regime, as well as to provide a single framework for use by Australia's on-water enforcement agencies. According to its Explanatory Memorandum (EM), the bill sets out:

" a system for authorising maritime officers to exercise powers in relation to vessels, installations, aircraft, protected land areas or isolated persons on certain grounds;

" the purposes for exercising maritime powers, their scope and geographical limits;

" the range of enforcement powers available to maritime officers once an

authorisation is in place, such as: boarding; obtaining information; searching, detaining, seizing and retaining things; and moving and detaining persons (together, the maritime powers);

" the processes for dealing with things seized, retained or detained and persons held; and

1 Journals of the Senate, 2 0 A u g u s t 2 0 1 2 , p . 2 8 0 1 .

2 House of Representatives Votes and Proceedings, 2 0 A u g u s t 2 0 1 2 , p . 1 7 0 8 .

3 Journals of the Senate, 2 0 A u g u s t 2 0 1 2 , p . 2 8 0 6 .

Page 2

" offences for failure to comply with relevant requirements.4

1.5 The Maritime Powers (Consequential Amendments) Bill 2012 (Consequential Amendments Bill) seeks to amend five Acts to remove maritime enforcement powers which would be replaced by the proposed Maritime Powers Bill. The Acts which would be amended by the Consequential Amendments Bill are:

" the Customs Act 1901;

" the Environment Protection and Biodiversity Conservation Act 1999;

" the Fisheries Management Act 1991;

" the Migration Act 1958; and

" the Torres Strait Fisheries Act 1984.

Background

1.6 Australia's maritime environment is subject to law enforcement in the areas of customs and border protection, migration and fisheries management. For the purposes of law enforcement, Australia's maritime enviromnent includes: the coastal sea of Australia; the territorial sea of Australia;5 certain offshore installations within Australia's maritime zones and any safety zone around such installations; Australia's external territories;6 and the airspace above the external territories, territorial seas,

specified installations and safety zones.7

1.7 In its submission to the inquiry, the Australian Crime Commission outlined why maritime law enforcement powers in these areas are necessary:

Organised crime groups primarily exploit vulnerabilities in the maritime sector for the purposes of organised theft, the avoidance of duty on licit goods, and as the primary gateway into Australia for illicit drug importation. These activities can have [a] significant impact on Australia's economy and on the health, welfare, and safety of Australian citizens...

In order to combat the threats posed by serious and organised crime, Australia's maritime law enforcement and defence officers require the

4 EM , M ar itime P o w er s Bill 2 0 1 2 , p . 3 .

5 A u s tr alia' s co as tal w ater s ar e d ef in ed as th e ar ea ex ten d in g th r ee n au tical miles f r o m th e

co as tlin e o f th e A u s tr alian main lan d an d ex ter n al ter r ito r ies , w h ile A u s tr alia' s ter r ito r ial s ea is

d ef in ed as th e ar ea ex ten d in g 1 2 n au tical miles f r o m th e co as tlin e o f th e A u s tr alian main lan d

an d ex ter n al ter r ito r ies . F o r mo r e in f o r matio n s ee G eo s cien ce A u s tr alia, 'A u s tr alia' s M ar itime

Zo n es ' , h ttp ://w w w . g a. g o v . au /imag e cach eZG A 3 7 4 6 . p d f ( acces s ed 2 5 J u n e 2 0 1 2 ) .

6 A u s tr alia' s ex ter n al ter r ito r ies co mp r is e o f th e: A u s tr alian A n tar ctic Ter r ito r y ; Co r al S ea I s lan d s

Ter r ito r y ; Ter r ito r y o f N o r f o lk I s lan d ; Ter r ito r y o f A s h mo r e an d Car tier I s lan d s ; Ter r ito r y o f

H ear d I s lan d an d M cD o n ald I s lan d s ; Ter r ito r y o f Co co s ( K eelin g ) I s lan d s ; an d Ter r ito r y o f

Ch r is tmas I s lan d .

7 EM , M ar itime P o w er s Bill, p . 1 4 .

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requisite enforcement powers to investigate, interdict, and prosecute against organised crime in the maritime environment.8

1.8 In the Second Reading Speech to the Maritime Powers Bill, the

Attorney-General noted that Commonwealth agencies currently operate in the maritime environment exercising powers and responsibilities contained in at least 35 separate Commonwealth Acts. The Attorney-General stated that this system is 'inefficient' and can lead to operational difficulties for the primary on-water enforcement agencies.9

1.9 The Attorney-General also emphasised that 'the powers contained in the bill are based on powers currently available to operational agencies', and that under the bill the role and functions of these agencies will not change.10 11

1.10 The reform to Australia's maritime enforcement laws was initially announced on 15 September 2009 by the then Attorney-General, the Hon Robert McClelland MP.11 The decision to amend Australia's maritime enforcement laws was made following a review of Australia's homeland and border security in 2008 (the Smith review).12

Conduct of the inquiry

1.11 The committee advertised the inquiry in The Australian newspaper on 4 July 2012, and details of the inquiry, the bills and other associated documents were placed on the committee's website at www.aph.gov.au/senate legalcon. The committee also wrote to a number of organisations and individuals, inviting

submissions by 13 July 2012.

1.12 The committee received seven submissions for the inquiry. Submissions are listed at Appendix 1.

1.13 The committee held a public hearing for this inquiry on 10 September 2012 at Parliament House in Canberra. A list of witnesses who appeared at the hearing is at Appendix 2, and copies of the Hansard transcript are available through the committee's website.

8 Submission 4, p . 2 .

9 House of Representatives Hansard, 3 0 M ay 2 0 1 2 , p . 8 .

1 0 House of Representatives Hansard , 3 0 M ay 2 0 1 2 , p . 8 .

1 1 Th e H o n Ro b er t M cClellan d M P , A tto r n ey - G en er al, an d th e I To n Br en d an O ' Co n n o r M P ,

M in is ter f o r H o me A f f air s , 'Ref o r m o f M ar itime En f o r cemen t Leg is latio n ' , J o in t M ed ia

Releas e, 1 5 S ep temb er 2 0 0 9 .

1 2 Bo r d er P r o tectio n Co mman d , Homeland Security Review (Smith Review),

h ttp ://w w w . b p c. g o v . au /s ite/h o melan d - s ecu r itv . as p ( acces s ed 9 A u g u s t 2 0 1 2 ) .

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Acknowledgement

1.14 The committee thanks those organisations who made submissions and gave evidence at the public hearing.

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CHAPTER 2 Key provisions of the bills

Maritime Powers Bill 2012

2.1 The Maritime Powers Bill 2012 (Maritime Powers Bill) consists of seven parts, and seeks to provide a comprehensive framework for the exercise of law enforcement powers in Australia's maritime areas.

Key terms

2.2 Clause 8 of the bill defines a number of key terms. Under the bill, certain maritime enforcement powers can be exercised in relation to vessels and aircraft that are involved in a contravention of Australian law, as well as in relation to:

" installations - artificial islands or structures located in maritime areas, for example an offshore oil rig;

" protected land areas * land areas that are outside the states and internal territories, such as isolated, uninhabited pieces of land within Australia's maritime zones; and

" isolated persons - persons who are not on, or in the vicinity of, a vessel, installation, aircraft or protected land area (for example, a scuba diver who has swum directly from shore and is not related to any vessel).

2.3 The powers contained in the bill can be exercised by 'maritime officers', a term which is defined in clause 104, as:

" a member of the Australian Defence Force (ADF);

" a Customs officer;

" a member or special member of the Australian Federal Police (AFP); or

" a person appointed as a maritime officer by the relevant Minister.

Maritime powers

2.4 Part 3 of the Maritime Powers Bill sets out the maritime powers which can be exercised under the bill. The exercise of these powers is limited by Part 2 of the bill. Broadly, the powers which can be exercised by maritime officers under the bill are

powers to:

" board vessels, installations and aircraft;

" identify and intercept aircraft;

" obtain information and readings;

" search places and persons;

" examine, secure and mark things;

" copy or record documents or records;

" seize or retain weapons and other items;

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" detain vessels, aircraft or people in certain circumstances; and

" require a person to cease conduct which may constitute a contravention of an Australian law.

Boarding and entry powers

2.5 Under clause 52 of the bill, maritime officers may board a vessel, installation or aircraft. In doing so, the officer may require the person in charge of the vessel, aircraft or installation to take reasonable steps to facilitate the boarding. Officers must show appropriate identification if requested.

2.6 Maritime officers may also require vessels to stop or perform a specified course or speed, and may chase a vessel if that vessel does not comply with a requirement to stop or facilitate boarding the vessel. The chase powers include the power to: obstruct the passage of the vessel; use any reasonable means to halt or slow the vessel; and fire at the vessel to disable it or compel it to be brought near for boarding.1

2.7 Under clause 55, maritime officers may exercise powers to request the identification of aircraft, intercept aircraft and request aircraft to land in Australia. Refusal to comply with directions given by a maritime officer to facilitate boarding,

perform a specified action in relation to a vessel, identify an aircraft or land an aircraft is an offence.1 2

2.8 While boarding powers are generally limited to maritime environments, clause 56 provides that maritime officers have the power to enter onto land in certain circumstances (for example, to investigate an aircraft which has been directed to land in Australia).

Obtaining information

2.9 A maritime officer may require a person to answer questions or produce records or documents, and may also make readings from navigational or other instruments relating to the operation of a vessel, installation or aircraft.3 Failure to

comply with a requirement under either of these clauses is an offence, with a penalty of two years imprisonment or 120 penalty units. The Explanatory Memorandum (EM) states, however, that 'clause 57 does not displace a person's rights and privileges at common law, including the right to silence, the right not to incriminate oneself or legal professional privilege'.4

Search powers

2.10 Clauses 59-60 of the Maritime Powers Bill provide that a maritime officer may conduct a search, and may open or break open any space (such as a hold or

1 Clause 54, Maritime Powers Bill.

2 These offences are found in subclauses 53(1), 54(1), 55(1) and 55(7) respectively. The penalty for each of these offences is two years imprisonment or 120 penalty units, or both.

3 Clauses 57-58.

4 Explanatory Memorandum (EM), Maritime Powers Bill, p. 47.

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compartment) and use a dog or equipment to assist in a search. A maritime officer may also cause a person or thing to be lifted from the sea. Clause 61 provides that officers may search persons through either an 'ordinary search' or a 'frisk search'.5 Refusal to comply with a requirement for a search under clause 61 is an offence, with a penalty of two years imprisonment or 120 penalty units, or both.

Examining, securing and retaining things

2.11 Under clause 63, a maritime officer may examine a thing or object.6 If necessary, force may be used to open things in the process of examination. Under clause 64, an officer may seal, mark, lock up or secure a thing. This incorporates the ability to label or tag a live plant or animal, including by implanting a scannable

device in an animal. Clause 65 provides that a maritime officer may copy or record a document, or part thereof.7

2.12 Clauses 66-68 deal with the securing of weapons and other items. Under these clauses, officers may secure weapons temporarily, or seize weapons or anything that the officer suspects, on reasonable grounds, is evidential material, a border controlled drug or plant, or a thing owned by the Commonwealth or a state or territory. Officers may also retain a thing which the officer suspects could be seized under an Australian law.8 Clause 83 provides that officers may use seized things for law enforcement purposes.

2.13 Under clauses 69-70, a maritime officer may detain a vessel, aircraft or other vehicle on land and cause it to be taken to and held at a port, airport or other relevant place until it is released or disposed of.

2.14 Under clause 80, written notice must be given to the owner or possessor of a thing that has been seized or retained within 14 days of this occurring. The notice must contain details relating to what has been seized or retained, the purpose for this action and relevant information about its return. In addition to this written notice, a notice of Commonwealth ownership of a thing may be given at any time. Once a notice of Commonwealth ownership has been given, the thing no longer needs to be

5 Under subclause 61(4), an 'ordinary search' is a search of a person including the removal of external clothing such as a coat or jacket, while a 'frisk search' is a search of a person conducted by quickly running hands over the person's outer garments, and an examination of anything worn or carried by the person. Clause 62 details that, wherever possible, frisk searches must be conducted by a person who is of the same sex as the person being searched.

6 For example, by opening a package; testing, scanning or analysing a thing; operating a thing; or photographing or recording a thing.

7 Subclauses 64(2)-(3) make it an offence to break, deface or remove a seal, mark, label or tagging device which has been put in place using the exercise of powers. The penalty for this offence is 50 penalty units.

8 Under clause 81, different procedures apply to things which have been seized under clause 67 and retained under clause 68. Except in certain prescribed circumstances, seized things must be returned within 120 days of their seizure, while retained things must be returned within 28 days.

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returned to its prior owner; however, a person claiming ownership of the thing may apply to a court for an order for the return of the thing.9

Detaining or arresting people in certain circumstances

2.15 Clause 71 provides that an officer exercising maritime powers may require a person to stay in a particular place on the vessel, installation, aircraft or land which is subject to the use of powers. Clause 72 provides that persons on a detained vessel or

aircraft may be required by officers to stay on board until it reaches a port, airport or other place, and may also be taken by an officer to another place inside or outside Australia. Failure to comply with such a requirement is an offence, with a penalty of two years imprisonment or 120 penalty units, or both.

2.16 Maritime officers may also detain a person under the detention provisions in several other Commonwealth Acts, as if they were an officer for the purposes of those detention provisions.10 Any detention of persons must only occur where the detainee's safety is assured (clause 74), and detention under clauses 71-73 does not constitute

arrest (clause 75).

2.17 Under clauses 76-78, maritime officers may arrest a person if they suspect, on reasonable grounds, that the person has committed an indictable offence against an Australian law, and may also arrest a person for whom an arrest warrant is in force under an Australian law. A maritime officer may also require a person to cease particular conduct if the officer believes on reasonable grounds that the conduct

constitutes a contravention of Australian law. Failure to cease conduct when required by an officer is an offence carrying a penalty of two years imprisonment or 120 penalty units, or both.

2.18 Under clause 95, a person detained or arrested under the bill must be treated with humanity and respect for human dignity, and must not be subject to cruel, inhuman or degrading treatment.

Authorising the use of maritime powers

2.19 In order to provide a safeguard against unnecessary or excessive use of maritime powers, the majority of powers established under the bill can only be exercised after authorisation for their use is given by an authorising officer. Clause 16 provides that, for the purpose of exercising powers in a specific instance, the

authorising officer is generally the most senior maritime officer who is either present and able to exercise the powers in person, or is able to direct or coordinate the exercise of powers (for example, from an established operations room or from the command of a Commonwealth vessel or aircraft).

9 Clauses 80, 82, 89, Maritime Powers Bill.

10 The detention provisions, listed in clause 73, are relevant provisions in the Environment Protection and Biodiversity Conservation Act 1999, the Fisheries Management Act 1991 (Fisheries Management Act), the Torres Strait Fisheries Act 1984, and any other provision to be prescribed by regulations.

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2.20 Clauses 17-22 outline the circumstances in which certain authorisations may be made for the exercise of powers. Authorisations for the exercise of specific powers may be made if an authorising officer:

" suspects, on reasonable grounds, that a vessel, aircraft, installation, protected land area or isolated person is involved in a contravention of Australian law (clause 17); *

" determines the authorisation is necessary for the purposes of administering or monitoring compliance with a monitoring law (clause 18);11 12

" suspects, on reasonable grounds, that a vessel, installation or aircraft is subject to a relevant international agreement or international decision which necessitates the authorisation (clause 19);

" suspects, on reasonable grounds, that there is evidentiary material on a vessel, installation or protected land area (paragraph 20(1 )(a));

" believes, on reasonable grounds, that the exercise of powers is necessary to enforce a warrant that is in force under an Australian law (paragraph 20(l)(b));

" suspects, on reasonable grounds, that an authorisation is necessary to identify a vessel or aircraft which has not properly identified its nationality (clause 21); or

" suspects, on reasonable grounds, that an aircraft is carrying seizable transit goods (clause 22).

2.21 As there is already legislation dealing with the aviation environment, subclause 17(2) limits the ability of officers to issue authorisations in relation to aircraft to situations involving 'actionable contraventions' against an Australian law.13 Subclause 32(2) provides that the exercise of powers related to an aircraft in flight is confined to those that were made for the purposes of the authorisation only.

2.22 Clauses 28-29 of the bill deal with circumstances in which authorisation is not required in order for an officer to exercise maritime powers. Under these provisions a maritime officer may, without authorisation:

11 Clause 9 defines being 'involved' in a contravention for the purposes of authorisations under clause 17. Generally, a vessel, aircraft, installation, protected land area or isolated person may be considered 'involved' if it is: in the physical vicinity of where the contravention is occurring; being directly used in a contravention; or has some other direct connection to the contravention.

12 Monitoring laws include laws such as the Customs Act 1901 and the Fisheries Management Act, which requires compliance monitoring. For example, under this clause an authorisation could be made to approach a vessel to ensure that it has an appropriate fishing license under the Fisheries Management Act.

13 Actionable contraventions are contraventions of laws specifically to be prescribed in regulations, or contraventions in cases directly approved by the Minister. The EM explains on p. 27 that 'it is proposed that this subclause will provide for the exercise of maritime powers in relation to aircraft that have a nexus with the maritime environment'.

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" exercise powers to identify an aircraft; and

" exercise maritime powers to ensure the safety of the officer or any other

person.

Process of authorisations and approvals

2.23 Clause 23 outlines that an authorisation given by an authorising officer remains in force until it is spent or it lapses. The EM explains that an authorisation is 'spent' when the continuous exercise of powers under the authorisation ceases (that is, when the exercise of specific powers in a situation is no longer required).14 15 An

authorisation lapses if powers have not been exercised under the authorisation within 72 hours of the authorisation being given.12'

2.24 Clause 25 details that authorisations and approvals do not have to be in writing. The EM explains that, in the maritime context, authorisations may need to be made urgently; for example, via an oral direction from the commander of a Commonwealth vessel. The EM notes that the approach taken by the bill is consistent with existing arrangements for maritime environments, and that an authorising officer may later be required to give evidence about an orally-made authorisation for the purposes of prosecuting an offence enforced under the bill.16

Exercise of additional powers after an authorisation

2.25 Clause 31 enables maritime officers to exercise maritime powers in accordance with an authorisation that has been given. Clause 32 provides that once an authorisation has been given, a maritime officer may exercise additional maritime powers as necessary during the course of exercising powers under the initial authorisation. The EM explains that this provision allows for operational flexibility in the maritime environment:

The benefits of maritime officers being able to operate flexibly and quickly in the maritime environment, particularly in circumstances of urgency, outweigh the reduced oversight of maritime officers resulting from not obtaining further authorisations.17

Limitations on the exercise of maritime powers

2.26 Division 4 of Part 2 of the Maritime Powers Bill sets out how the maritime powers authorised under the bill are to be exercised. Clause 34 provides that maritime officers may exercise the powers on or in any part of the relevant vessel, installation, aircraft or land, and may exercise powers in relation to any people or items relating thereto. Clause 35 provides that a warrant is not required for the exercise of powers

14 EM, Maritime Powers Bill, p. 30.

15 If, however, the Minister has specifically given approval for an authorisation to be made, that approval lapses 14 days after it is given.

16 EM, Maritime Powers Bill, p. 31.

17 EM, Maritime Powers Bill, p. 33.

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under the bill by a marine officer. The EM notes that warrants are not currently required for the use of maritime enforcement powers under existing legislation.18

2.27 Clause 37 provides that, in exercising powers under the Bill, a maritime officer may use such force against a person or thing as is necessary and reasonable in the circumstances. This provision also specifies that an officer must not subject a person to greater indignity than is necessary or reasonable, and must not do anything likely to cause the death of, or grievous bodily harm to, any person, unless:

" the officer believes on reasonable grounds that such actions are necessary to protect life or prevent serious injury to another person; and

" if the person is attempting to escape arrest *the person has been called to

surrender and the officer believes that the person cannot be apprehended in any other manner.

2.28 Clause 38 enables an officer to request any person for assistance in the course of exercising maritime powers, a request which the person may refuse. Clause 39 provides that a maritime officer exercising powers may require a person on or in the vicinity of a relevant vessel, installation, aircraft or protected land area, to provide assistance. The EM explains that forcing individuals to assist officers:

...is appropriate in the maritime operational environment in certain situations. For example, if a vessel is drifting towards a reef, a person who knows how to operate the vessel may need to be compelled to manoeuvre the vessel out of harm's way.19

2.29 Refusal to comply with a direction under clause 39 is an offence, with the penalty being two years imprisonment or 120 penalty units, or both.

Geographical limits on the exercise of maritime powers

2.30 Division 5 of Part 2 of the Maritime Powers Bill sets out limits on where maritime powers can be exercised. In general, maritime powers cannot be exercised in another country (including the territorial sea of another country), or in relation to a foreign vessel, installation or aircraft in a place between Australia and another country

(clauses 40-44). The bill also sets out exceptional circumstances in which powers can be used in the situations listed above.20

2.31 Powers may also not generally be exercised in relation to vessels, installations isolated persons, or aircraft located in an Australian state or territory, unless: the exercise of powers began before the state or territory was entered; the powers are used in relation to a Commonwealth law relating to internal Australian waters; or the use of powers is necessary to ensure the safety of a person (clauses 46-47).

18 EM, Maritime Powers Bill, p. 35.

19 EM, Maritime Powers Bill, p. 37.

20 These exceptions include, among other things, circumstances where the use of powers is requested or agreed to by the relevant second country; or is undertaken to ensure compliance with, or investigate a breach of, international agreements.

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Other provisions

2.32 Part 7 of the Bill deals with miscellaneous matters. Clause 107 provides that persons exercising powers under the bill are protected from any suit, action or proceeding in relation to actions taken in good faith during the exercise of those powers.

2.33 Clauses 112-114 provide that the Commonwealth may recover the reasonable costs incurred by the Commonwealth as a result of chasing vessels or seizing things. Costs may only be recovered in relation to seized things in circumstances where the previous owner has unsuccessfully made an application to a magistrate for the return of the thing.

2.34 Clauses 117-120 provide that, if property is acquired from a person under the bill other than on just terms, the Commonwealth is liable to pay compensation to that person. The Commonwealth is also liable to pay compensation if documents are lost

or destroyed, or equipment is damaged or destroyed, due to insufficient care being taken in the exercise of maritime powers in relation to the documents or equipment.

2.35 Clauses 115-116 deal with information-sharing arrangements, and provide that maritime officers may give information or documents obtained in the exercise of powers to a cooperating agency for use in relation to maritime security or safety, or other relevant functions of that agency. The list of cooperating agencies includes the ADF, AFP, and the police force of any state or territory, as well as:

" any other Commonwealth, or state or territory agency responsible for security, defence or law enforcement;

" an international body responsible for investigating contraventions of international agreements, or administering and ensuring compliance with such agreements; and

" any other body or agency prescribed in regulations.

2.36 Clause 121 provides that the Minister may delegate any of his or her functions and powers under the bill to a specified list of individuals, including senior AFP and ADF officers and public service Senior Executive Service (SES) employees with a classification not below Senior Executive Band 1 or equivalent.

Maritime Powers (Consequential Amendments) Bill 2012

2.37 The Maritime Powers (Consequential Amendments) Bill 2012 (Consequential Amendments Bill) contains six schedules, which make amendments to five Commonwealth Acts as a result of the introduction of the Maritime Powers Bill.

2.38 Schedule 1 contains amendments to the Customs Act 1901 (Customs Act). The main amendment is the removal of sections 184A-185B of the Customs Act, which deal with maritime enforcement powers relating to: boarding, chasing, moving, searching and destroying ships; identifying and boarding aircraft; searching aircraft and people, and retaining things. These powers are replaced by the powers conferred upon Customs officers operating as maritime officers under the Maritime Powers Bill.

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2.39 Schedule 2 contains a single amendment to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), which is the removal of Division 11 of Part 17 of Chapter 6 of the EPBC Act. This division of the EPBC Act deals with the ability of authorised officers to exercise powers of boarding and arrest in relation

to foreign vessels and nationals which have been pursued from Australia to a place outside Australia's jurisdiction. This Division will be replaced by clauses 41-42 of the Maritime Powers Bill, which will enable maritime officers to exercise maritime powers in relation to foreign vessels chased to a place outside of Australia.

2.40 Schedule 3 of the Consequential Amendments Bill contains amendments to the Fisheries Management Act 1991 (Fisheries Management Act). The primary amendment is the removal of several subsections and paragraphs from section 84 of the Fisheries Management Act, as well as sections 87-87HA which deal with a range of maritime enforcement powers to be replaced by equivalent powers under the Maritime Powers Bill.

2.41 Schedule 4 of the Consequential Amendments Bill contains amendments to the Migration Act 1958 (Migration Act). These amendments include amending Division 12A of Part 2 of the Migration Act, which deals with powers to chase and board ships and aircraft, to repeal references to ships, as the relevant powers relating to ships are replaced with relevant provisions of the Maritime Powers Bill. Powers relating to aircraft in Division 12A are retained. The EM to the Consequential Amendments Bill explains that this is because aircraft powers are required on land in some circumstances, and the Maritime Powers Bill generally does not provide for the use of powers in these situations.21

2.42 Schedule 5 of the Consequential Amendments Bill contains amendments to the Torres Strait Fisheries Act 1984. These amendments repeal certain paragraphs and sections of that Act authorising the use of powers, which have been replaced by the powers in the Maritime Powers Bill.

2.43 Schedule 6 of the Consequential Amendments Bill outlines transitional provisions detailing that an exercise of powers begun under existing legislation amended by the Consequential Amendments Bill may be continued, to ensure that

ongoing maritime operations at the time of the bill's commencement are not compromised.

21 EM, Consequential Amendments Bill, p. 17.

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CHAPTER3

Key issues

3.1 While the bills received broad support from most submitters to the inquiry, some suggestions were made regarding possible changes, clarifications and improvements to the bills.

Support for the Bills

3.2 The majority of submitters to the inquiry expressed strong support for the bills. Rear Admiral T.N. Jones AM, CSC, RAN, Acting Chief of Navy, submitting on behalf of the Department of Defence, noted that the bills:

...will simplify on water maritime enforcement operations and streamline training and doctrine development within Defence...[T]here will also be less likelihood of a misapplication of power with more coherent and comprehensive legislation. In addition, any future amendments will be far

less complex as there will be only one Department responsible for the legislation.1

3.3 Several government agencies that will be affected by the changes proposed in the bills commented that they had been involved in detailed consultations and drafting processes for this legislation, and that they were satisfied that the changes were not

going to disrupt their operations or limit their abilities to perform their functions.1 2

3.4 The Australian Crime Commission (ACC) noted its strong support for the information-sharing provisions in clause 116 of the Maritime Powers Bill, which provide for the sharing of security-related information between maritime officers and cooperating agencies. The ACC expressed that, subject to strong safeguards:

...continued and enhanced information sharing in this regard would lead to a better understanding of the exploitation of the Australian maritime environment by serious and organised crime. This, in turn, will assist in interdicting and preventing organised crime's impact on the Australian community.3

1 Submission 6, p. 1.

2 Australian Fisheries Management Authority, Submission 2, p. 1; Australian Customs and Border Protection Service, Submission 3, p. 1; T.N. Jones AM, CSC, RAN, Acting Chief of Navy, on behalf of the Department of Defence, Submission 6, p. 1.

3 Submission 4, pp 2-3.

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Key issues

3.5 The following issues are discussed below:

" the scope of the definition of 'maritime officer';

" the breadth of the Minister's power to delegate his or her functions;

" the identification of maritime officers during boarding operations;

" recourse for unwarranted actions taken by maritime officers;

" the scope of the detention provisions in the Maritime Powers Bill; and

" the coverage of the amendments in the Consequential Amendments Bill.

Definition o f 'maritime officer'

3.6 Under clause 104 of the Maritime Powers Bill, a maritime officer is defined as a member of the ADF, a Customs officer, a member or special member of the AEP, or another person appointed by the Minister. The Explanatory Memorandum (EM) explains that the types of officers that may be appointed by the Minister as maritime officers would be similar to existing classes of officers under current maritime enforcement legislation, for example fisheries officers.4

3.7 In response to a question on notice relating to the possible appointment of private contractors as maritime officers under the bill, the Attorney-General's Department (Department) confirmed that individuals who are not Commonwealth officers, including private contractors, would be appointed as maritime officers in certain circumstances:

This could include appointing State or Territory officers as maritime officers, where there is an agreement between the Commonwealth and the relevant State or Territory for cooperation in maritime enforcement. This may also include officers of other countries in relation to international agreements and decisions, where appropriate. A very limited number of

private contractors are currently authorised to exercise maritime powers. This comprises commanders of contracted aircraft, who are currently authorised to exercise powers under the Customs Act 1901. It is understood that this practice will continue while the Government contracts private aviation services for maritime enforcement.5

3.8 The Department also highlighted that, under subclauses 104(2)-(3), ministerial appointments under the bill must be made in relation to a specified law or

international agreement, and that additional conditions may be placed on any

4 EM, Maritime Powers Bill, p. 67.

5 Attorney-General's Department, response to questions on notice, received 6 August 2012, PP 1-2.

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appointments, including limiting the specific powers an appointee is authorised to exercise.6

Delegation of ministerial authority

3.9 Under clause 121 of the Maritime Powers Bill, the Minister has power to delegate all of his or her functions under the bill to certain officials of classification SES Band 1 or higher. These powers are extensive, and include the power to appoint maritime officers, to approve the use of powers relating to aircraft under clause 10,

and to approve the exercise of powers in relation to vessels, installations and aircraft under an international agreement, arrangement or decision under clause 12. When questioned about whether such delegation powers are appropriate, the Department responded:

Provisions enabling delegation of a Minister's powers to Commonwealth officers are extremely common under Australian laws, including to SES officers. Delegations in an operational context such as this are necessary, to cater, for example, for situations where the Minister is not available, given authorisations can be required at short notice. The Australian Defence Force officers to whom delegation is available under paragraph 121 are also comparable to SES officers. Moreover, the Minister can limit any delegation, and would remain responsible, including to the Parliament, for delegations under this paragraph.7

Identifying maritime officers

3.10 Under the Maritime Powers Bill, maritime officers must produce identity cards when requested during the exercise of boarding powers under clause 52, and powers to enter on land under clause 56. Shipping Australia noted that it may be difficult for a person in charge of a vessel to ascertain the true identity of a

Commonwealth officer arriving in another vessel, from a distance.8

3.11 Under subclauses 52(4) and 56(4), the requirement to produce identification cards does not apply if the officer is a uniformed ADF officer, Customs officer, or a member or special member of the AFP. The committee notes that these exceptions are a departure from the approach taken in the Guide to Framing Commonwealth

Offences, Infringement Notices and Enforcement Powers , are inconsistent with obligations on officers under Part 1AA of the Crimes Act 1914, and are broader than similar exceptions found in section 185 A of the Customs Act 1901, which apply only to members of the ADF.9 The EM to the Bill does not explain why this approach has been taken.

_____________________ ___________________________ _________________________Rage 17

6 Response to questions on notice, received 6 August 2012, p. 2.

7 Response to questions on notice, received 6 August 2012, p. 2.

8 Submission 1, p. 3.

9 Parliamentary Library, Bills Digest No. 170, 2011-12: Maritime Powers Bill∑, 26 June 2012, pp 19-20.

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3.12 The Department highlighted that when boarding vessels using the powers in clause 52, uniformed officers would typically board from a marked government vessel, making the official capacity of the officer clear. More broadly, the Department commented:

This provision has been tailored to the unique aspects of the maritime environment. Boarding of vessels on the high seas often requires officers to operate in a difficult, dangerous and quickly changing maritime environment. Boarding a vessel also regularly presents risks *often unknown *to the maritime officer. In these circumstances, it is impractical to require clearly identifiable enforcement officers to produce identification in the manner that usually occurs in relation to law enforcement officers on land.10 11

Recourse for unwarranted actions taken by officers

3.13 Clause 107 of the Maritime Powers Bill provides that maritime officers and other associated persons are not liable to any action, suit or proceedings in relation to their actions performed in good faith under the bill. Shipping Australia argued that there should be avenue for recourse if actions taken by maritime officers during the

exercise of powers are found to be unwarranted. It stated that, while it understands the reasoning for the inclusion of clause 107 protecting maritime officers from liability, 'there must be an avenue of recourse if it can be proved that such officers were corrupt or acted maliciously'. 1

3.14 The Department pointed out that provisions limiting or immunising the liability of Commonwealth officers are common, including in the current maritime powers regime. The Department also highlighted that clause 107 would not prevent an individual from pursuing recourse against the Commonwealth in relation to a maritime officer's conduct, and would not limit an individual's ability to take legal action against an officer where the officer's actions were not taken in good faith or were not taken in the performance of their duties under the Bill.12

Compensation for injury and delays at sea

3.15 Under clauses 118-120 of the Maritime Powers Bill, compensation claims can be made in cases where property or documents have been damaged due to officers taking insufficient care in the exercise of powers. Shipping Australia argued, however,

that some other situations may also require compensation:

Boarding a vessel at sea is a considerably risky task for any person, and as such it should be executed by those who are experienced and capable of performing such an assignment. The Commonwealth must have in place adequate provision to provide for compensation to any person involved in

10 Response to questions on notice, received 6 August 2012, p. 3.

11 Submission 1, pp 1, 3.

12 Response to questions on notice, received 6 August 2012, p. 3.

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an accident whilst boarding a vessel as it would be unreasonable to expect the ship's insurance to provide cover in such circumstances.13

3.16 The Department noted that, if such an accident occurred, there is nothing to prevent an insurance provider from seeking recourse against the Commonwealth, and that any Commonwealth officers involved in an accident while boarding a vessel still have a right to pursue workplace injury compensation.14 15

3.17 Shipping Australia also argued that, in addition to access to compensation for damages to property or documents, 'there must be an avenue to claim for other damages such as delays to vessel and other expenses resulting from unlawful or wrongful actions taken by Maritime Officers'.13 The Department responded that the bill would not exclude Commonwealth liability for conduct attracting civil liability, and that recourse could still be pursued in this way by aggrieved parties.16

Detention of persons under other detention provisions

3.18 Clause 73 of the Maritime Powers Bill allows maritime officers to detain persons under detention provisions in other specified Commonwealth legislation, as if they were officers authorised under those provisions. However, clause 98 of the bill

specifies that any detention period served before the maritime officer transfers the individual into custody will not count towards the maximum detention times which apply under those other provisions (under the detention provisions of the Acts listed in the Bill, a maximum detention period of one week applies).

3.19 In response to a question on notice as to whether it is appropriate that persons detained under the other provisions listed in clause 73 could now be held for a longer period than originally provided for under the other Acts, the Department responded:

These provisions have been drafted to deal with the situation where a person is detained at sea, and where continued detention on land is reasonably to be expected. In this situation, the person could be detained

under paragraph 73, in order to transfer the person into the custody of a relevant officer when on land, where the relevant detention period would commence. It is important to note that it is difficult to prescribe a defined period of detention. This is because the time taken to return to port varies significantly, depending on where the relevant operation occurred. However, the transfer must occur as soon as practicable. Paragraphs 73 and 98 thereby enable an individual to be detained on the high seas, to be transferred to custody on land under a relevant detention provision, such as

13 Submission 1, p. 3.

14 Response to questions on notice, received 6 August 2012, p. 4.

15 Submission 1, p. 4.

16 Response to questions on notice, received 6 August 2012, p. 4.

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in relation to illegal fishing offences, in the manner envisaged under the relevant detention regime.17

Coverage of the Consequential Amendments Bill

3.20 In her Second Reading Speech to the Maritime Powers Bill, the

Attorney-General stated that, under the current legislative structure, operational agencies use powers contained in at least 35 separate Commonwealth Acts, and that the Maritime Powers Bill and Consequential Amendments Bill together consolidate and harmonise the Commonwealth's existing maritime enforcement regime.18 Despite this reference to 35 separate pieces of legislation, the Consequential Amendments Bill contains amendments to only five additional Commonwealth acts. When questioned why the remaining 30 Commonwealth Acts which also deal with maritime enforcement powers have not been amended, the Department advised:

The current consolidation initiative has been designed to identify and consolidate the main maritime powers; predominantly those in the migration, fisheries and customs regimes. Powers that were not readily transferable into the current regime have not been included at this time. However, it is envisaged that the proposed regime would provide a framework for consolidating maritime powers, so that over time, further maritime powers could be incoiporated, as appropriate.19

Committee view

3.21 The committee commends the intent behind the bills of consolidating and harmonising Australia's maritime law enforcement regime. Given that the bills codify extensive and coercive enforcement powers, it is important that appropriate safeguards are in place to limit the use of these powers. The committee notes that under the provisions of the Maritime Powers Bill:

" the threshold for authorising the exercise of powers, 'suspicion on reasonable grounds', is similar to the prerequisite thresholds for enforcement of offences in existing legislation;20

" authorisations for the exercise of powers may only be made for the specific purposes outlined in the bill;

" clause 37 provides that an officer must not subject a person to greater

indignity than is necessary and reasonable to exercise the powers; and

" clause 95 provides that a person arrested, detained or otherwise held under the bill must be treated with humanity and respect for human dignity, and must not be subject to cmel, inhuman or degrading treatment.

17 Response to questions on notice, received 6 August 2012, pp 4-5.

18 House of Representatives Hansard, 30 May 2012, p. 8.

19 Response to questions on notice, received 6 August 2012, p. 6.

20 Maritime Powers Bill 2012: Explanatory> Memorandum, p. 27.

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3.22 The committee also notes that individuals have the right to seek recourse against the Commonwealth for any actions taken by maritime officers, and have the right to seek recourse against officers where the officer has not acted in good faith or has taken actions outside their duties. Accordingly, the committee considers that these provisions should ensure the appropriate operation of the enforcement powers contained in the Maritime Powers Bill.

3.23 The committee notes the support for the bills expressed by most submitters to the inquiry. In the committee's view, the bills represent a sensible consolidation of law enforcement powers for Commonwealth agencies operating in the maritime domain.

Recommendation 1

3.24 The committee recommends that the Senate pass the Maritime Powers Bill 2012 and the Maritime Powers (Consequential Amendments) Bill 2012.

Senator Trish Crossin Chair

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COALITION SENATORS' DISSENTING REPORT

1.1 On 21 June 2012, the Senate jointly referred the provisions of the Maritime Powers Bill 2012 and the provisions of the Maritime Powers (Consequential Amendments) Bill 2012 to the Senate Legal and Constitutional Affairs Legislation Committee (Committee), for inquiry and report by 20 August 2012.

1.2 Coalition Senators of the Committee dissent from the Committee majority recommendation that these bills be passed. Coalition Senators believe this legislation may represent a surreptitious attempt to remove the Commonwealth *s power to turn back unauthorised boats as part of an effective national border control policy. We say 'surreptitious' because the Government, in evidence before the Committee, was unable to say categorically whether this power, used by past Federal governments as an important tool in maritime policy, is preserved in the present legislation.

1.3 We note that the power to turn back boats has been exercised on several occasions by Commonwealth agencies, in particular by the Royal Australian Navy. Former Prime Minister Kevin Rudd committed his government to 'turning back the boats' shortly before the 2007 election, and the Coalition has committed to use such a power in appropriate circumstances under an alternative government.

1.4 Coalition Senators observe that the Maritime Powers Bill 2012 purports to set out comprehensively the powers of authorised officers in a maritime setting. However, officers of the Attorney-General's Department were unable to tell the Committee how, if at all, the power to turn back boats was replicated in this bill.

1.5 It was suggested that the bill, in clause 5, preserves the prerogative powers of the Commonwealth, including the power to repel unauthorised boats.1 However, it seems to Coalition Senators that this bill evinces a clear intention to describe and regulate Commonwealth maritime powers, so that any prerogative powers must be read down by the constraining provisions of the bill, including clauses 32, 54 and 69. It is very doubtful that the present power to turn back boats is preserved by these provisions.

1.6 Coalition Senators cannot support these bills while they operate to repeal or remove this crucial tool in Commonwealth maritime and border protection policy.

Senator Gary Humphries Senator Sue Boyce

Deputy Chair

1 Committee Hansard, 10 September 2012, p. 3.

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APPENDIX 1

SUBMISSIONS RECEIVED

Submission NumberSubmitter

1 Shipping Australia Limited

2 Australian Fisheries Management Authority

3 Australian Customs and Border Protection Service

4 Australian Crime Commission

5 Department of Infrastructure and Transport

6 Rear Admiral T.N. Jones AM, CSC, RAN, Acting Chief of Navy, on

behalf of the Department of Defence

7 Australian Lawyers Alliance

ADDITIONAL INFORMATION RECEIVED

1 Response to questions on notice provided by Attorney-General's

Department, 6 August 2012

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APPENDIX 2

WITNESSES WHO APPEARED

BEFORE THE COMMITTEE

Canberra, 10 September 2012

GOODMAN, Ms Camille, Principal Legal Officer, International Law Trade and Security Branch, Attorney-General's Department

REID, Mr John, Assistant Secretary, International Law Trade and Security Branch, Attorney-General's Department

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The Senate

Legal and Constitutional Affairs

Legislation Committee

Migration Amendment (Health Care for Asylum Seekers) Bill 2012

December 2012

305

© Commonwealth of Australia

ISBN: 978-1-74229-737-8

This document was produced by the Senate Legal and Constitutional Affairs Committee secretariat and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

306

MEMBERS OF THE COMMITTEE

Members

Senator Patricia Crossin, Chair, ALP, NT

Senator Gary Humphries, Deputy Chair, LP, ACT

Senator Sue Boyce, LP, QLD

Senator Mark Fumer, ALP, QLD

Senator Louise Pratt, ALP, WA

Senator Penny Wright, AG, SA

Substitute Member

Senator Sarah Hanson-Young, AG, SA replaced Senator Penny Wright, AG, SA for the inquiry into the Migration Amendment (Health Care for Asylum Seekers) Bill 2012

Participating Members

Senator Michaelia Cash, LP, WA

Senator Richard Di Natale, AG, VIC

Secretariat

Ms Julie Dennett

Ms Ann Palmer

Ms Hannah Dibley

Committee Secretary

Inquiry Secretary

Administrative Officer

Suite SI.61

Parliament House

CANBERRA ACT 2600

Telephone: (02) 6277 3560

Fax: (02) 6277 5794

Email: legcon.sen@aph.gov.au

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TABLE OF CONTENTS

MEMBERS OF THE COM M ITTEE .................................................................... iii

RECOMMENDATIONS...........................................................................................vii

CHAPTER 1 .................. 1

Introduction..................................................................................................................1

Referral of inquiry......................................................................................................1

Purpose of the Bill......................................................................................................1

Key provisions of the Bill .......................................................................................... 1

Conduct of the inquiry...............................................................................................4

Scope of this report....................................................................................................4

Acknowledgement..................................................................................................... 5

Note on references..................................................................................................... 5

CHAPTER 2 ....................................................................................................................7

Need for independent oversight of health services..................................................7

Proposed Joint Advisoiy Committee.........................................................................8

Proposed Immigration Health Advisory Group.......................................................9

A role for IHAG in monitoring health services provided offshore? ..................... 10

CHAPTER 3 ..................................................................................................................13

Key issues relating to the Bill...................................................................................13

Clarity of powers and functions..............................................................................13

Access to regional processing countries and facilities...........................................14

Reporting to the parliament.....................................................................................16

Expertise of the Panel .............................................................................................. 17

Committee view........................................................................................................18

DISSENTING REPORT BY THE AUSTRALIAN GREENS ....................... 23

Introductory remarks...............................................................................................23

309

Merits of an Independent Panel over a Departmental Advisory Group .............. 23

Powers and terms of reference of the Independent Panel .................................... 25

Location of the group within the government ....................................................... 25

Access by the Panel to facilities in third countries ................................................ 26

Expertise represented on the Panel.........................................................................26

Strengthening of IHAG .......................................................................................... 26

APPENDIX 1................................................................................................................29

SUBMISSIONS RECEIVED....................................................................................29

APPENDIX 2 ................................................................................................................31

WITNESSES WHO APPEARED BEFORE THE COMMITTEE ................... 31

vi 310

RECOMMENDATIONS

Recommendation 1

3.31 The committee recommends that the terms of reference for the Immigration Health Advisory Group (IHAG) should explicitly state that IHAG's role includes the oversight and monitoring of health services to offshore entry persons in regional processing countries.

Recommendation 2

3.32 The committee recommends that the terms of reference for IHAG should include provision for IHAG to:

" access processing facilities in regional processing countries to conduct monitoring and oversight activities;

" meet with offshore entry persons in processing centres in regional processing countries (with the consent of those people); and

" review the implementation of recommendations it makes, or other professional health organisations make, and provide further advice on the implementation of those recommendations.

Recommendation 3

3.33 The committee recommends that the Department of Immigration and Citizenship should be required to consult with IHAG on the development and design of all aspects of the Australian Government's policy to send asylum seekers to regional processing countries.

Recommendation 4

3.34 The committee recommends that IHAG's terms of reference should include the requirement that IHAG provide the Minister with a report on its work at least every six months, and that the Minister make that report publicly available.

Recommendation 5

3.35 The committee recommends that the Minister table in the parliament a response to all reports by IHAG, within three months of those reports being made public.

Recommendation 6

3.36 The committee recommends that the health expertise represented on IHAG should also include a representative from a disability organisation.

Recommendation 7

3.37 The committee recommends that the Senate should not pass the Bill.

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312

CHAPTER 1

Introduction

Referral of inquiry

1.1 The Migration Amendment (Health Care for Asylum Seekers) Bill 2012 (Bill) is a private senators' bill introduced by Senator Sarah Hanson-Young and Senator Richard Di Natale on 11 September 2012.1 On 13 September 2012, the Senate referred the Bill to the Legal and Constitutional Affairs Legislation Committee

(committee) for inquiry and report by 20 November 2012.1 2 The reporting date was subsequently extended to 7 December 2012.3

Purpose of the Bill

1.2 According to the Explanatory Memorandum (EM), the purpose of the Bill is 'to help safeguard the health and wellbeing of asylum seekers under the care of the Commonwealth',4 5 The Bill seeks to amend the Migration Act 1958 (Cth) (Migration Act) to create an independent panel of medical, psychological and other health experts to monitor, assess and report to the parliament on the health of asylum seekers who are taken to regional processing countries." The EM states:

The [panel] is intended to have the expertise and independence to make a thorough investigation and deliver findings in a way that is not subject to interference by the Minister, the relevant Department and other organisations responsible for the provision of health services and the care of detainees.6

Key provisions of the Bill

1.3 Section 198AB of the Migration Act provides that the Minister may, by legislative instrument, designate a country as a 'regional processing country'. The Minister for Immigration and Citizenship, the Hon Chris Bowen MP, designated Nauru as a regional processing country on 10 September 2012, and

1 Journals of the Senate , N o . 1 0 8 , 1 1 S ep temb er 2 0 1 2 , p . 2 9 4 0 .

2 Journals of the Senate, N o . 1 1 0 , 1 3 S ep temb er 2 0 1 2 , p p 2 9 7 3 - 2 9 7 4 .

3 Journals of the Senate, N o . 1 2 3 , 2 0 N o v emb er 2 0 1 2 , p p 3 3 2 4 - 3 3 2 5 .

4 Ex p lan ato r y M emo r an d u m ( EM ) , p . 1 .

5 EM , p . 1 .

6 EM , p . 1 .

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designated Papua New Guinea as a regional processing country on 9 October 2012.7 A designation takes effect immediately after both houses of the parliament have passed a resolution approving the designation (paragraph 198AB(lB)(a) of the Migration Act). In the cases of Nauru and Papua New Guinea, this occurred on

12 September 2012 and 10 October 2012 respectively.

1.4 Item 1 of Schedule 1 of the Bill proposes to amend the Migration Act by

inserting new section 198ABA - 'Health advisory panel' (Panel). Proposed new subsection 198ABA(1) provides that the Minister must establish a Panel to 'monitor, assess and report on the health of 'offshore entry persons'8 who are taken to regional processing countries'.

1.5 Each member of the Panel must be appointed by the Minister by written instrument and would hold office on the terms and conditions determined in the instrument.9

1.6 The Minister must not appoint a person as a member of the Panel unless satisfied that the person has expertise in one or more of the following areas:

" the medical profession;

" the psychology profession;

" the dental profession;

" public health; or

" child health.10

1.7 Proposed new paragraph 198ABA(3)(b) provides that the Minister can only appoint a person to the Panel if they have been nominated by one, or more, of the following bodies:

" the Australian Medical Association;

" the Royal Australian College of General Practitioners;

" the Royal Australian and New Zealand College of Psychiatrists;

" the Royal Australasian College of Physicians; or

7 Th e H o n Ch r is Bo w en M P , M in is ter f o r I mmig r atio n an d Citizen s h ip , Nauru desigriated for

regional processing , M ed ia Releas e, 1 0 S ep temb er 2 0 1 2 , av ailab le at: h ttp ://w w w . min is ter . immi. g o v . au /med ia/cb /2 0 1 2 /cb l 8 9 7 3 9 . h tm ( acces s ed 1 9 S ep temb er 2 0 1 2 ) ;

an d th e H o n Ch r is Bo w en M P , M in is ter f o r I mmig r atio n an d Citizen s h ip , Papua New Guinea

desigimted for regional processing , M ed ia Releas e, 9 O cto b er 2 0 1 2 , av ailab le at: h ttp ://w w w . min is ter . immi. g o v . au /med ia/cb /2 0 1 2 /cb l9 0 5 9 9 . h tm ( acces s ed 1 1 O cto b er 2 0 1 2 ) .

8 O f f s h o r e en tr y p er s o n ' is d ef in ed in s ectio n 5 o f th e Migration Act 1958 as : a p er s o n w h o h as ,

at an y time, en ter ed A u s tr alia at an ex cis ed o f f s h o r e p lace af ter th e ex cis io n time f o r th at

o f f s h o r e p lace, an d b eco mes an u n law f u l n o n - citizen b ecau s e o f th at en tr y .

9 P r o p o s ed n ew s u b s ectio n 1 9 8 A BA ( 2 ) .

1 0 P r o p o s ed n ew p ar ag r ap h 1 9 8 A BA ( 3 ) ( a) .

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" the Australian Psychological Society.11

1.8 The Panel would be responsible for determining how its functions are to be carried out.11 12 Proposed new subsection 198ABA(5) outlines activities that the Panel may undertake in performing its functions, specifically:

" assigning Panel members to monitor and assess the health of offshore entry persons in different regional processing countries;

" travelling to regional processing countries to carry out monitoring and assessment activities;

" assessing the health of an offshore entry person when they first arrive at a

regional processing countiy; and

" monitoring an offshore entry person's health on an ongoing basis for as long as they remain in the regional processing country.

1.9 At least every six months, the Panel must prepare a written report on the health of offshore entry persons who have been taken to regional processing countries.13 A copy of the Panel's report must be given to the Speaker of the House of Representatives and the President of the Senate for presentation to the House of Representatives and the Senate.14 15 The report must not include any information that may identify an offshore entry person.1?

1.10 The Panel may also make recommendations to the Minister in respect of the health of offshore entry persons who have been taken to a regional processing country.16

1.11 Proposed new subsection 198ABA(8) provides that, where the Panel believes that a Commonwealth department or prescribed authority (a 'relevant agency'), or a consultant or contractor to a relevant agency, has information, documents or other records relevant to the Panel's performance of its functions, then the Panel may require that the information, documents or other records be given to the Panel.

1.12 Item 2 of Schedule 1 of the Bill seeks to amend section 499 of the

Migration Act. Section 499 of the Migration Act provides for the Minister to give directions to a person or body having functions or powers under the Migration Act.

11 Proposed new subparagraph 198ABA(3)(b)(vi) provides that a person may be nominated by another professional body prescribed by the regulations.

12 Proposed new subsection 198ABA(4).

13 Proposed new subparagraph 198ABA(6)(a)(i).

14 Proposed new subparagraph 198ABA(6)(a)(ii).

15 Proposed new subsection 198ABA(7).

16 Proposed new paragraph 198ABA(6)(b).

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The amendment in item 2 specifically excludes the Panel as a body to which the Minister can give directions.

Conduct of the inquiry

1.13 The committee advertised the inquiry in The Australian on 26 September 2012. Details of the inquiry, including links to the Bill and associated documents, were placed on the committee's website at

www.aph.gov.au/senate legalcon. The committee also wrote to a number of organisations and individuals, inviting submissions by 17 October 2012. Submissions continued to be accepted after that date.

1.14 The committee received 20 submissions, which are listed at Appendix 1. All submissions were published on the committee's website.

1.15 The committee held a public hearing on 23 November 2012 at

Parliament House in Canberra. A list of witnesses who appeared at the hearing is at Appendix 2, and the Hansard transcript is available through the committee's website.

Scope of this report

1.16 The committee received a number of submissions which focussed on broader issues in relation to the Australian Government's policy of regional processing for asylum seekers. The broader issues raised in submissions include:

" opposition to offshore processing of asylum seeker claims on the basis that it breaches Australia's human rights obligations;17

" the impact of detention on the health of asylum seekers, particularly in

relation to their mental health;18

" the poor conditions in processing centres in Nauru and Manus Island

(Papua New Guinea) and the impact that these conditions have on the health of asylum seekers;19 and

17 See, for example, Uniting Justice, Submission 5, pp 3-4; Australian Lawyers Alliance, Submission 9, p. 1; Amnesty International Australia, Submission 8, p. 6. See also: Australian Human Rights Commission, which stated that it 'holds serious concerns about the approach taken to Australia's international obligations in the designations of Nauru and Papua New Guinea as a 'regional processing country" ( Submission 18, p. 7),

18 See, for example, Independent group of health experts representing key Australian health and mental health professional organisations, Submission 12, p. 2; Coalition of Asylum Seekers Refugees and Detainees, Submission 14, pp 2-3; Amnesty International Australia, Submission 8, pp 4-6; Australian Psychological Society, Submission 13, pp 8-10; Australian Human Rights Commission, Submission 18, pp 5-6.

19 Castan Centre for Human Rights Law, Submission 4, pp 5-6; Amnesty International Australia, Submission 8, pp 3-4.

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" inadequacy of health services for detainees in immigration detention in Australia and asylum seekers in regional processing countries.20

1.17 In this report, the committee has limited its consideration to the Bill only, and has not examined the broader policy debate relating to regional processing countries.

Acknowledgement

1.18 The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Note on references

1.19 References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

20 Asylum Seeker Resource Centre, Submission 2, pp 2-3; Cast an Centre for Human Rights Law, Submission 4, pp 4-6; Uniting Justice, Submission 5, pp 8-9.

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CHAPTER 2

Need for independent oversight of health services 2.1 The committee received evidence from a wide range of individuals and organisations, including health professionals, human rights experts, advocates for refugees and asylum seekers, and lawyers. All submissions and witnesses emphasised the importance of the independent oversight of health services provided to asylum

seekers who are sent to regional processing countries.1

2.2 In its submission, the Australian Human Rights Commission (AHRC) stated:

Given that Australia retains some responsibility for the treatment of asylum seekers transferred to third countries, and given that it is well documented that the prolonged detention of asylum seekers and refugees in remote locations may have a detrimental impact on their physical and mental health, the [AHRC] encourages the Australian Government to take necessary steps to establish a mechanism to monitor the health and mental health of people transferred to third countries for processing of their claims for protection.1 2

2.3 Dr Gillian Singleton of The Royal Australian College of General Practitioners argued that independent expert oversight for the provision of health services in regional processing facilities would 'minimise the risk of harm to clients, to staff and to the department in these challenging environments'.3

2.4 An officer from the Department of Immigration and Citizenship (Department or DIAC) told the committee that '[t]here is a range of scrutiny bodies that will be looking at the healthcare provision to people in regional processing centres', and

referred specifically to the proposed Joint Advisory Committees and the Immigration Health Advisory Group, which are to be established by the government for this purpose.4

1 See, for example, Ms Tamara Lions, Amnesty International Australia, Committee Hansard, 23 November 2012, p. 13; Independent group of health experts representing key Australian health and mental health professional organisations, Submissio?i 12, p. 1.

2 Submission 18 , p. 7.

3 Committee Hansard, 23 November 2012, p, 3.

4 Mr Ken Douglas, Department of Immigration and Citizenship (DIAC or Department), Committee Hansard, 23 November 2012, p. 36. See also: the Hon Chris Bowen MP, Minister for immigration and Citizenship, First transfer to Papua New Guinea, Media Release, 21 November 2012, which discussed arrangements for an interim Joint Advisory Committee to play an initial oversight role for the processing centre in Nauru, available at: http://www.minister.immi.gov.au/media/cb/2012/cbl91879.htm (accessed 30 November 2012).

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Proposed Joint Advisory Committee

2.5 The Australian Government has signed Memorandums of Understanding (MOUs) with Nauru and Papua New Guinea (PNG) relating to the transfer and assessment of asylum seekers to those countries. Each MOU provides for a 'Joint Committee with responsibility for the oversight of practical arrangements required to implement this MOU including issues relating to the duration of stay of Transferees'.5

2.6 At the public hearing, officers of the Department updated the committee on the progress of these arrangements with Nauru and PNG:

The administrative arrangements with both Nauru and Papua New Guinea are in the process of being finalised, but both of those documents contemplate having a joint advisory or oversight committee to look at the operations, the welfare of [asylum seekers], the management of the centres et cetera. At the moment we are in the process of establishing an interim joint committee to advise the minister. That will run for about six months

and will be able to advise the respective governments of what is happening on the ground in that six months and also of permanent terms of reference for a permanent advisory committee for each regional processing country.6

2.7 Officers from the Department were unable to advise the committee on the specific medical or health qualifications of the individuals appointed to the interim Joint Advisory Committee.7 Professor Louise Newman of The Royal Australian and New Zealand College of Psychiatrists pointed out that none of the members of the interim Joint Advisory Committee are representatives of professional health organisations, such as The Royal Australian College of General Practitioners and The Royal Australasian College of Physicians.8

5 Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related issues, signed 29 August 2012, Clause 17, available at: http://www.minister.immi.gov.au/media/cb/2012/cbl 89579.htm (accessed 30 November 2012); and Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to and assessment of persons in Papua New Guinea, and related issues, signed on 8 September 2012, Clause 21, available at: http://www.minister.immi.gov.au/media/cb/2012/cbl89719.htm (accessed 30 November 2012).

6 Ms Vicki Parker, DIAC, Committee Hansard, 23 November 2012, p. 31. See also DIAC, Submission 19, p 3.

7 See Ms Vicki Parker, DIAC, Committee Hansard, 23 November 2012, pp 31-32.

8 Committee Hansard, 23 November 2012, p. 3. Although Professor Newman did note that one of the representatives had sat on the Detention Health Advisory Group mental health subcommittee.

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Proposed Immigration Health Advisory Group

2.8 The Immigration Health Advisory Group (IHAG) is an independent advisory group to the Department, comprising nominated representatives of professional clinical associations.9 IHAG will succeed the Detention Health Advisory Group (DeHAG), which was established in 2006 to provide the Department with 'independent, expert advice on health policy, standards for health care services, data

and reporting, and mental health training'.10 11

2.9 At the public hearing, an officer of the Department explained to the

committee the reasons for the transition from DeHAG to IHAG:

IHAG has been established by the [Department's] secretaiy, taking advantage of the lessons learned over the course of the last six years of [DeHAG's] operation. The secretary wants that new group to take a broader, more systemic look at health policy and service delivery across not only the detention environment but also the whole of the immigration environment.11

2.10 It is not clear what role IHAG may have in the oversight of health services provided to asylum seekers in regional processing countries. At the committee's supplementary estimates hearing in October 2012, the Secretary of the Department

advised that the transition from DeHAG to IHAG 'had been envisaged before we got into regional processing'.12 The Secretary noted that he did not see any reason why IHAG would not be involved in oversight of the regional processing centres; however, that role had not 'necessarily been included in the terms of reference at this stage'.13

2.11 During the current inquiry, a departmental officer told the committee that '[m]any drafts of the terms of reference [for IHAG] have been exchanged with DeHAG members'.14 Dr Singleton, who was a member of DeHAG, noted that 'it is not clear that in the new IHAG terms of reference there will be any monitoring of offshore centres'.15

_______________________________________________________________________________________ Page 9

9 Mr Ken Douglas, DIAC, Committee Hansard, 23 November 2012, p. 35.

10 DIAC website, Detention Health Advisory Group (DeHAG), available at: http://www.imini.gov.au/about/stakeholder-engagement/national/advisoiy/dehag/ (accessed 28 November 2012).

11 Mr Ken Douglas, DIAC, Committee Hansard, 23 November 2012, p. 31.

12 Mr Martin Bowles PSM, DIAC, Senate Legal and Constitutional Affairs Legislation Committee, Supplementary Estimates 2012-13, Committee Hansard, 15 October 2012, p. 99.

13 Mr Martin Bowles PSM, DIAC, Senate Legal and Constitutional Affairs Legislation Committee, Supplementary Estimates 2012-13, Committee Hansard, 15 October 2012, p. 99.

14 Mr Ken Douglas, DIAC, Committee Hansard, 23 November 2012, p. 31.

15 Committee Hansard, 23 November 2012, p. 4.

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2.12 At the public hearing, the departmental officer indicated that there is an expectation, based on the precedent set by DeHAG visiting onshore detention centres, that IHAG would seek to visit regional processing centres and such requests would be facilitated by the Department.16

A role for IHAG in monitoring health services provided offshore?

2.13 Although IHAG is still in the process of being established, and its terms of reference are yet to be finalised, there was some debate during the hearing as to whether IHAG - based on the experiences of DeHAG - could fulfil the role of the

expert Panel envisaged in the Bill. A number of witnesses, including some former DeHAG members, commented on the differences between the role of IHAG and the Panel as proposed by the Bill.

2.14 The Department *s website notes that DeHAG was established 'in response to the recommendations' in the 2005 report by Mr Mick Palmer AO APM on the immigration detention of Cornelia Rau.17 The Palmer Report recommended that the Minister for Immigration establish an 'Immigration Detention Health Review Commission' as an independent body under the Commonwealth Ombudsman's legislation to 'carry out independent external reviews of health and medical services provided to immigration detainees and of their welfare'.18 In an answer to a question on notice in the current inquiry, the Department clarified the events surrounding the establishment of DeHAG:

The proposed Immigration Detention Health Review Commission [recommended in the Palmer report] was not established following consultation with the Commonwealth Ombudsman and Dr David Chaplow, Director of Mental Health in the New Zealand Ministiy of Health and consulting psychiatrist to the Palmer Inquiry. They agreed that the Commission was not needed given the new oversighting role of the Commonwealth Ombudsman for Immigration. In addition, the Detention Health Advisory Group (DeHAG) was established (March 2006) to ensure that the Department was appropriately advised on the development and provision of health care services for people in immigration detention.19

16 Mr Ken Douglas, DIAC, Committee Hansard, 23 November 2012, pp 36-37.

17 DIAC website, Detention Health Advisory Group (DeHAG), available at: http://www.imini.gov.au/about/stakeholder-engagement/national/advisory/dehag/ (accessed 28 November 2012).

18 Mr Mick Palmer AO APM, Report of the Inquiry into the circumstances of the Immigration Detention of Cornelia Rau, July 2005, Recommendation 6.11, p. xxx.

19 DIAC, answer to question on notice, received 29 November 2012, p. 2.

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2.15 Dr Choong-Siew Yong of the Australian Medical Association (AMA) noted that the AMA has previously proposed an expert health panel similar to that in the Bill,20 and sought to distinguish any such Panel from the Department's advisory health groups:

[The] model that [the AMA] had in mind was one of an inspectorate-type body which would be different from an advisory group within the department which is advising on such things as operational aspects and general issues. One of the things we are aware of is that there is currently nobody that can independently look at the situation of immigration detainees throughout the whole system, particularly now that there are offshore centres outside of Australia, and report back to the parliament or to government about the quality of the healthcare being provided, and the needs of the group. I think that you can make a clear distinction between an

internal body to the department with health expertise *which is what they have had in the past *to something that sits outside.21

2.16 Dr Yong also referred to DeHAG as being 'reactive rather than proactive':

[0]n occasions the department and the detention provider have come up with operational policies or plans that really would have benefited from the input around the impact on the health of the detainees. Some of the provisions that the detention provider had around managing behaviour were

done without reference to the health impact.22

2.17 The Castan Centre for Human Rights Law noted the lack of public

information available about the work that has been carried out to date:

DeHAG seems to have published its last public report in March 2008. The 2008 report reveals that DeHAG made only two visits to detention centres over the course of the preceding year...DeHAG contributed to a 2011 review of the Detention Health Framework, but there is otherwise little information available publicly on DeHAG's activities over the four years since its last report.23

20 See Australian Medical Association, AMA calls for independent medical panel to oversee the health of asylum seekers, Media Release, 22 August 2012, available at: https://ama.com.au/media/ama-calls-independent-medical-panel-oversee-health-asylum-seekers (accessed 28 November 2012).

21 Committee Hansard, 23 November 2012, pp 4-5.

22 Committee Hansard, 23 November 2012, p. 7.

23 Submission 4, p. 2.

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2.18 Associate Professor Amanda Gordon of the Australian Psychological Society indicated that it may be possible for IHAG to undertake the role of a panel, provided the problems which faced DeHAG are addressed:

I believe, if the reporting mechanisms could be properly established it could be one and the same, and then have working groups below it...One of the issues with DeHAG...was that we did not always have access. For instance, the only visits that were ever made to detention centres were made when they were organised by the department. They were always prearranged,

everything was very sanitised in that there were limits to what we could see and we could not see. I do not believe that if IHAG was a replica of that it would be an appropriate expert advisory oversight panel...IHAG, if it became the expert group, would have to have proper access at its own behest. It would have to have access to records, and it would have to have proper ability to both see what is going on, to advise the Secretary and then to be able to escalate if necessary to the minister through parliament.24

2.19 The submission by the independent group of health experts representing key health and mental health professional organisations proposed a model where a panel could work in tandem with IHAG:

We believe that this should include independent review and monitoring processes of health services and the establishment of a separate, independent body to the Departmental health advisory group (IHAG) which

can provide the results of its review and monitoring to the Secretary of the Department of Immigration and Citizenship, the Chief Medical Officer of the Department and the IHAG on health service provision and risk mitigation strategies.

We believe that this is the most robust structure to allow for efficient and timely identification and resolution of issues, which may arise.25

24 Committee Hansard, 23 November 2012, p. 4.

25 Submission 12, p. 1. See also: Independent group of health experts representing key Australian health and mental health professional organisations, Supplementary Submission 12, p. 1.

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CHAPTER 3

Key issues relating to the Bill 3.1 The majority of submissions and witnesses supported the Bill and its objectives. * This chapter discusses the key issues raised during the inquiry, including:

" the need for clarity of the Panel's powers and functions;

" the access the Panel will have to regional processing countries and the

processing facilities in those countries;

" the requirement for the Panel to report to the parliament; and

" the health expertise requirements for members of the Panel.

Clarity of powers and functions

3.2 One of the specific issues raised in relation to the Bill was whether the

functions and powers of the Panel, as set out in proposed new subsections 198ABA(4) and (5), are sufficiently clear. Professor Louise Newman, who is also the former Chair of the Detention Health Advisory Group (DeHAG), argued that the Bill should be 'much clearer' in terms of the power and terms of reference for the proposed Panel:

DeHAG...[has] not had any clearly defined capacity to necessarily enter centres, have access to the sort of data that is veiy important to monitor health and mental health outcomes, nor to actually review any actions that might be taken about recommendations. I think our collective experience has been that over the years of existence of DeHAG we have made many recommendations about things that we thought would improve health and mental health within the centres, but we have had absolutely no mandate to review the implementation of any of those recommendations. This amendment should be much clearer in terms of the power and terms of reference of a group to really oversight in a clear way what

recommendations are made, what actions are then taken and whether they actually lead to improvements in the situation.1 2

3.3 UnitingJustice also commented on the lack of specific monitoring

arrangements in the Bill and argued that these details should be codified in the legislation.3

1 See, for example: Dr Gillian Singleton, The Royal Australian College of General Practitioners, Committee Hansard, 23 November 2012, p. 1; Ms Ellisa Scott, Hotham Mission Asylum Seeker Project, Committee Hansard, 23 November 2012, p. 14; Mr Kon Karapanagiotidis OAM, Asylum Seeker Resource Centre, Committee Hansard, 23 November 2012, p. 15; Professor Gillian Triggs, Australian Human Rights Commission,

Committee Hansard, 23 November 2012, p. 21; UnitingJustice, Submission 5, p. 12; Australian Lawyers Alliance, Submission 9, p. 1; Coalition for Asylum Seekers Refugees and Detainees, Submission 14, p. 8.

2 Committee Hansard, 23 November 2012, pp 3-4.

3 Submission 5, p. 11.

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3.4 The committee received evidence that one aspect of the Panel's functions, as envisaged in the Bill, would be unnecessary or impractical. Proposed

paragraph 198ABA(5)(c) of the Bill provides that in performing its monitoring and assessment functions the Panel may 'assess the health of an offshore entry person when he or she fust arrives in a regional processing country'. Dr Singleton of The Royal Australian College of General Practitioners stated that she could not see how such assessments would practically work:

I think ensuring that the processes are in place to ensure that people are being assessed adequately is what is important.4

Access to regional processing countries and facilities

3.5 The Department's submission noted that the activities of any Panel in, or in relation to, a regional processing country 'will necessarily depend on the consent and agreement of the government of the relevant regional processing country'.5

3.6 At the public hearing, an officer of the Department expanded on this point:

We are very conscious that in establishing the regional processing centres that they are established within separate sovereign countries. Each time anybody, whether it be a staff member of the department or indeed somebody being transferred to the centre, is seeking permission to enter the country they need to be granted a visa and they need permission to access a centre. It is a shared arrangement. The challenge we were presenting to the committee for it to consider was the coverage of Australian law in relation to a separate sovereign country.6

3.7 However, some witnesses dismissed the issue of access as an obstacle to the Panel's operation.7 For example, Mr David Manne of the Refugee and Immigration Legal Centre argued that the issues in relation to sovereignty could be addressed through further negotiation with the Nauruan and Papua New Guinean governments as part of the transfer arrangement:

The transfer arrangement has already overcome, it appears, certain issues concerning sovereignty, such as transferring people to Nauru and setting up tents for people to live in at the moment, and so forth. We would see it as a necessary extension of the arrangements that have already been undertaken, rather than overcoming any possibly insurmountable obstacle. Were that not to be the case we would be confronting a situation where the

4 Committee Hansard, 23 November 2012, p. 9. See also: Associate Professor Amanda Gordc . Australian Psychological Society, Committee Hansard, 23 November 2012, p. 9.

5 Submission 19, p. 3.

6 Mr Ken Douglas, Department of Immigration and Citizenship (DIAC), Committee Hansard, 23 November 2012, p. 30. See also: Ms Vicki Parker, DIAC, Committee Hansard, 23 November 2012, p. 38.

7 Mr Kon Karapanagiotidis OAM, Asylum Seeker Resource Centre, Committee Hansard, 23 November 2012, p. 16; Ms Tamara Lions, Amnesty International Australia, Committee Hansard, 23 November 2012, p. 17; Mr David Manne, Refugee and Immigration Legal Centre, Committee Hansard, 23 November 2012, p. 27.

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Australian Government was expelling people from its shores to another country without being able to provide for their care.8

3.8 Professor Gillian Triggs, President of the Australian Human Rights Commission (AHRC), expressed the view that sovereignty would not be a barrier to a statutory panel accessing regional processing centres:

[It] is a matter of international law. Australia is legally responsible for all international activities over which it has effective control. That is a very broad statement, but, specifically in relation to asylum seekers, clearly there is an obligation to assess those claims and to ensure that basic humanitarian rights are preserved. By transferring people to an offshore facility, those obligations continue. Certainly they would continue in the specific instances that are in existence at the moment in Papua New Guinea and Naum, where Australia is playing such a strong role in relation to assisting with legislation, training of those likely to undertake assessment and so on.9

3.9 However, Professor Triggs did indicate a problem would arise if the

Australian Government were to 'determine for itself that it will not permit the jurisdiction of its agencies to extend to offshore territories, and the Australian parliament would be more than entitled to pass legislation or to make clear that point if [it] chose to do so'.10 11

3.10 An officer of the Department sought to equate efforts by the

Australian Government in obtaining access for the Panel with the assistance it might provide for bodies such as Amnesty International Australia or the

Australian Red Cross in negotiating access:

What we are posing for the committee to consider is how that might be applied under Australian legislation with a foreign countiy. For example, over the last three weeks or so, there have been visits by both the Australian Red Cross and Amnesty International. Both of those visits required the consent of the Nauru[an] government. We did not take their agreement for

those visits for granted or lightly. We sought their agreement in the first instance.11

8 Committee Hansard, 23 November 2012, p. 27.

9 Committee Hansard, 23 November 2012, p. 23.

10 Committee Hansard, 23 November 2012, p. 23.

11 Mr Ken Douglas, DIAC, Committee Hansard, 23 November 2012, p. 30.

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Reporting to the parliament

3.11 A number of witnesses welcomed proposed new subsection 198ABA(6) which provides for the Panel to report at least once every six months on the health of offshore entry persons taken to regional processing counties, and to provide a copy of that report to the Speaker of the House of Representatives and the President of the

Senate.12 For example, Professor Triggs noted:

[I]f independent monitors can report publicly on their findings there will be a significant increase in transparency and accountability...

[Reporting to parliament gives an element of independent oversight by parliament *that is, a direct role within the democratic system. So I would see that as a very positive improvement.13

3.12 Mr Adam Fletcher from the Castan Centre for Human Rights Law argued that public reporting would make the Panel a more effective body than the

Immigration Health Advisory Group (IHAG):

[Wje see that an independent body which has some sort of public reporting requirement is likely to be more effective in achieving good health outcomes than the internal bodies, such as the IHAG - which, we

understand, has not yet been formed - because...the transparency and accountability of such an independent body which reported publicly would be far greater.14

3.13 Professor Newman spoke of the frustration faced by DeHAG members in relation to being able to follow up on the implementation of recommendations that DeHAG made:

We share, I think it is reasonable to say, a common view and frustration that many of the recommendations we and our professional bodies have made have not necessarily been implemented, or there have been systemic barriers to implementation, that the reporting back to us has been inadequate, and that we are not provided with adequate data to actually make reasonable policy recommendations. So, part of [both the] challenge and frustration of being an independent advisory body is, of course, that you can make many recommendations and give a lot of advice that is not necessarily acted upon.15

12 See, for example, Professor Louise Newman, The Royal Australian and New Zealand College of Psychiatrists, Committee Hansard, 23 November 2012, p. 4; Ms Tamara Lions, Amnesty International Australia, Committee Hansard, 23 November 2012, pp 13 and 17; Professor Gillian Triggs, Australian Human Rights Commission, Committee Hansard, 23 November 2012, p. 23.

13 Committee Hansard, 23 November 2012, pp 21 and 23.

14 Committee Hansard, 23 November 2012, p. 27.

15 Committee Hansard, 23 November 2012, p. 7.

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3.14 Witnesses suggested that, in addition to the Panel providing reports to the parliament, there should be a requirement for the Minister to respond to the reports within a mandated timeframe.16 Mr Kon Karapanagiotidis OAM of the Asylum Seeker Resource Centre argued for a response from the Minister within 45 days of the Panel's report being presented to parliament:

We need statutory obligations on the part of the government when these recommendations are put forward. We need the government to be bound to provide a mandated written response within 45 days of this report being tabled by the panel. We need to ensure we have a panel that has clout, standing, rights and, most critically[,] independence - so it can call it like it is, hold the government to account and have binding recommendations, genuine oversight and resourcing!∑]17

Expertise of the Panel

3.15 The committee received some evidence on the range of expertise of the Panel, as provided for in proposed subsection 198ABA(3) of the Bill.18 For example, Dr Singleton outlined the expertise that key health organisations consider should be represented on the Panel:

[The] expert panel should include health professionals with experience in health needs of refugees and asylum seekers, including professionals with specific expertise in psychiatry, psychology, general practice, public health, infectious diseases, paediatrics, dentistry and nursing. Representatives with health expertise from the countries in which the centres are located should also be involved in an advisory capacity.19

3.16 The inclusion of human rights expertise on the Panel was also raised in some submissions.20 In relation to this issue, Professor Triggs stated:

16 Mr Kon Karapanagiotidis OAM, Asylum Seeker Resource Centre, Committee Hansard, 23 November 2012, p. 16; Mr David Manne, Refugee and Immigration Law Centre, Committee Hansard, 23 November 2012, p. 28. See also: Asylum Seeker Resource Centre, Submission 2, p. 1.

17 Committee Hansard, 23 November 2012, p. 16.

18 See, for example, Asylum Seeker Resource Centre, Submission 2, p. 1; Commissioner for Children and Young People WA, Submission 7, p. 4; Victorian Refugee Health Network and Refugee Health Network of Australia, Submission 15, p. 1.

19 Committee Hansard, 23 November 2012, pp 1-2. See also: Victorian Refugee Health Network and Refugee Health Network of Australia, which suggested that refugee health experience and nursing should be part of the required expertise of the Panel ( Submission 15, p. 1); and Asylum Seeker Resource Centre, which suggested that psychiatry expertise should be included in the Panel's expertise ( Submission 2, p. 1).

20 Hotham Mission Asylum Seeker Project, Submission 10, p. 4; Asylum Seeker Resource Centre, Submission 2, p. 1. See also: Coalition for Asylum Seekers Refugees and Detainees, which recommended that there should be a 'certain proportion of non-government organisations representing refugees and asylum seekers and human rights organisations in the Panel' (Submission 14, p. 8).

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[I]t would be extremely helpful if a member of the commission had some reasonable competence and understanding of international human rights law...One of the reasons I would encourage you to make a recommendation in relation to this is that so frequently we find in our work here at the commission that we are met with the answer, 'Well, that's not what Australian domestic law provides.' Our benchmark provisions are international human rights treaties that may not have been implemented directly into Australian law. With the scrutiny process that you would be aware of and other increased awareness of international human rights, it would be very helpful if a commission member were at least competent in this area.21

3.17 The committee also sought the view of witnesses on whether the Panel should include a representative from a disability organisation. Associate Professor Amanda Gordon of the Australian Psychological Society suggested that such expertise is present within a number of organisations - such as The Royal Australian College of General Practitioners, The Royal Australian and New Zealand College of Psychiatry, the Australian Psychological Society and the Australian Medical Association - which would be nominating representatives to the Panel. However, Associate Professor

Gordon did not believe there would be any objection to including a specific reference to such expertise in the Bill.22

Committee view

3.18 In the committee's view, the oversight and monitoring of health services provided to asylum seekers transferred to regional processing countries is currently inadequate. Despite this view, however, the committee does not support the establishment of a panel of health experts as proposed by the Bill as the appropriate mechanism to address this deficiency.

3.19 Fundamentally, it is not clear to the committee where the Bill's proposed panel would be administratively and operationally located within the framework of government or, alternatively, how it is to be funded if it is to be a body entirely independent from government. In this context, the committee notes the answer to a question on notice from the Office of the Commonwealth Ombudsman, which stated:

The Ombudsman is open to further consideration of the establishment of an independent expert panel located within the Ombudsman's Office to monitor and evaluate the well-being of asylum seekers sent to offshore regional processing centres. There are possible benefits to this proposal depending on its construction...[However, the] independent panel would

21 Committee Hansard, 23 November 2012, p. 22.

22 Committee Hansard, 23 November 2012, p. 11. See also: Associate Professor Karen Zwi from The Royal Australasian College of Physicians, who outlined some of the work that the Detention Health Advisory Group (DeHAG) had done, and recommendations it had made to address issues in relation to disability, and particularly to prevent further disabilities manifesting in detainees {Committee Hansard, 23 November 2012, pp 11-12).

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require appropriate expertise and may need a legislative power to undertake inspections in regional processing centres.23

3.20 The President of the Australian Human Rights Commission indicated that, while that organisation would be Very happy to have the [Panel proposed in the Bill]...linked in some way with the Human Rights Commission', it lacked the resources and expertise to support such a panel, and would need a designated

legislative function and associated funding in order to have an operational role."4

3.21 The committee notes the evidence of an officer of the Department that the Joint Advisory Committee and IHAG will be providing scrutiny of health services in regional processing countries. Clearly the Joint Advisory Committee lacks the necessary expertise to perform the specific role envisaged by the Bill's proposal. Further, it is obvious from the evidence the committee has received that IHAG, if merely a reincarnation of DeHAG, would not be able to carry out independent oversight of health services in regional processing countries.

Establishing IHAG as an independent oversight and monitoring body

3.22 In the committee's view, however, if IHAG is constituted with appropriate expertise, powers and reporting functions to ensure transparency and accountability in relation to the work it undertakes, then it would be able to perform the functions proposed for the Panel. While the committee appreciates that DeHAG is in a 'transition phase' to IHAG,25 IHAG should be made fully operational as soon as possible and as a matter of urgency.

3.23 In terms of IHAG's remit, the committee has been told that the group will 'take a broader, more systemic look at health policy and service delivery across not only the detention environment but also the whole of the immigration environment' than was the case for DeHAG.26 In addition, there appears to be some anticipation within the Department that IHAG will provide advice in relation to regional processing centres,27 but this may not be clear in the current draft of IHAG's terms of reference.28

3.24 In addition to clarifying at the most basic level that IHAG will have

responsibility for oversight and monitoring of health services for asylum seekers in regional processing counties, the evidence to the committee highlighted the

23 Office of the Commonwealth Ombudsman, answer to question on notice, received 30 November 2012, p. 2.

24 Committee Hansard, 23 November 2012, pp 22 and 23.

25 Mr Martin Bowles PSM, DIAC, Senate Legal and Constitutional Affairs Legislation Committee, Supplementary Estimates 2012-13, Committee Hansard, 15 October 2012, p. 99.

26 Mr Ken Douglas, DIAC, Committee Hansard, 23 November 2012, p, 31.

27 Mr Ken Douglas, DIAC, Committee Hansard, 23 November 2012, pp 36-37.

28 Dr Gillian Singleton, The Royal Australian College of General Practitioners, Committee Hansard, 23 November 2012, p. 4.

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importance of having the powers and functions of an independent oversight body clearly articulated.

Negotiating access for IHAG in regional processing countries

3.25 The Department put to the committee that one of the matters in the Bill requiring further clarification is acknowledgement that access by the expert health panel would depend on the consent and agreement of the government in the relevant regional processing country.

3.26 The committee appreciates the matter of sovereignty raised by the Department, and accepts the evidence that all workers, visitors, and asylum seekers going to regional processing countries require visas and permission to enter the processing facilities from the relevant country. However, the committee also notes

that the Department is already expecting that IHAG will request to visit the regional processing centres and that the Department will 'facilitate' that access.

IHAG reports to be made public

3.27 In terms of IHAG undertaking a review and monitoring role, the committee takes seriously the evidence it received of numerous examples of DeHAG, and other professional health representative organisations, putting recommendations to the

Department that have not been implemented or actioned;29 as well as apparent uncertainty as to whether particular recommendations have been, or are to be, implemented.30 There also appears to have been ineffectual feedback and communication in relation to the implementation of recommendations.31

3.28 While the committee appreciates that, at present, IHAG is intended to have an 'internal' role providing advice to the Department, in the committee's view the Department should make the reports and recommendations of IHAG publicly available. In addition, the committee considers that there would be substantial value in the Minister tabling a response to IHAG's reports and recommendations within three months. Making IHAG's reports and recommendations publicly available, and requiring a ministerial response to those reports and recommendations, will provide transparency and accountability in terms of the implementation of recommendations by IHAG.

29 See, for example, Associate Professor Karen Zwi, The Royal Australasian College of Physicians, Committee Hansard, 23 November 2012, p. 7, regarding recommendations in relation to child and youth health and guardianship of unaccompanied minors.

30 See Dr Gillian Singleton, The Royal Australian College of General Practitioners, Committee Hansard, 23 November 2012, p. 3, referring to DeHAG recommendations in relation to general and pediatric health screening in offshore facilities.

31 See Professor Louise Newman, The Royal Australian and New Zealand College of Psychiatrists, Committee Hansard, 23 November 2012, discussing the lack of defined capacity for DeHAG to review actions taken in relation to recommendations.

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Expertise represented on IHAG

3.29 The evidence that the committee received in relation to the expertise represented on the expert health panel proposed in the Bill indicates that the expertise on that panel should be augmented. The committee understands that the membership of DeHAG covered a much broader cross-section of professional health organisations, and expects that IHAG would cover a similar cross-section of health expertise.32 However, the committee believes that there would be significant benefit in appointing to IHAG a specialist representative from a disability organisation.

3.30 As a final point, the committee encourages the Department to consider whether the Australian Human Rights Commission should be granted observer status on IHAG in order to address concerns raised during the inquiry in relation to the need for human rights expertise to be represented.

Recommendation 1

3.31 The committee recommends that the terms of reference for the Immigration Health Advisory Group (IHAG) should explicitly state that IHAG *s role includes the oversight and monitoring of health services to offshore entry persons in regional processing countries.

Recommendation 2

3.32 The committee recommends that the terms of reference for IHAG should include provision for IHAG to:

" access processing facilities in regional processing countries to conduct monitoring and oversight activities;

" meet with offshore entry persons in processing centres in regional processing countries (with the consent of those people); and

" review the implementation of recommendations it makes, or other professional health organisations make, and provide further advice on the implementation of those recommendations.

Recommendation 3

3.33 The committee recommends that the Department of Immigration and Citizenship should be required to consult with IHAG on the development and design of all aspects of the Australian Government *s policy to send asylum seekers to regional processing countries.

32 In an answer to a question on notice, DIAC indicated that the organisations invited to provide nominations for membership on IHAG include: The Royal Australian College of General Practitioners, The Royal Australian and New Zealand College of Psychiatrists, the Australian Psychological Society, The Royal Australian College of Physicians, the Australian College of Nursing, and the Australian Medical Association (DIAC, answer to question on notice, received 29 November 2012, p. 3).

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Recommendation 4

3.34 The committee recommends that IHAG's terms of reference should include the requirement that IHAG provide the Minister with a report on its work at least every six months, and that the Minister make that report publicly available.

Recommendation 5

3.35 The committee recommends that the Minister table in the parliament a response to all reports by IHAG, within three months of those reports being made public.

Recommendation 6

3.36 The committee recommends that the health expertise represented on IHAG should also include a representative from a disability organisation.

Recommendation 7

3.37 The committee recommends that the Senate should not pass the Bill.

Page 22______________ ________________ ______________ ________________________________________

Senator Trish Crossin

Chair

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DISSENTING REPORT BY

THE AUSTRALIAN GREENS

Introductory remarks

1.1 This bill, the Migration Amendment (Health Care for Asylum Seekers) Bill 2012, seeks to create an independent panel of experts with the expertise, resources and necessaiy powers to investigate and report on the health and wellbeing of asylum seekers under the care of the Commonwealth in offshore detention facilities. Because of the fragile mental and physical health of asylum seekers, the stresses of detention and the remoteness of the locations where offshore detention is maintained, ensuring adequate care of these people is both an urgent responsibility and an extremely difficult task. The Australian Greens maintain that unless the system that cares for such vulnerable people is transparent, accountable and subject to independent oversight, then the health of these people will inevitably suffer,

1.2 Evidence received during the inquiry overwhelmingly supports this view. Although some made suggestions for strengthening the bill, medical experts - including those familiar with immigration detention oversight through previous involvement with the Detention Health Advisory Group (DeHAG)1 - were strongly

supportive of the need for an offshore detention oversight body as proposed by the bill. We therefore recommend the bill be passed with the amendments outlined below.

1.3 Further evidence, such as that given by Amnesty International Australia, highlighted the unacceptable conditions already present at the detention centre in Nauru.1 2 This evidence underscores the need for timely and robust intervention, especially given the complexity, political sensitivity and gravity of the situation faced by asylum seekers transferred to Nauru and Papua New Guinea.

Merits of an Independent Panel over a Departmental Advisory Group

1.4 Some evidence presented to the Committee focussed on the previous work of DeHAG and on the Immigration Health Advisory Group (IHAG) which is yet to be properly established. The Department and others canvassed the idea that IHAG could fulfill the role intended for the Panel provided for in the Bill. This proposal forms the bulk of the recommendations in the majority report.

1.5 The Australian Greens do not support this model. The overwhelming majority of evidence received, including from former members of DeHAG, indicates that such a body will not have the capability or remit to properly safeguard the health of asylum

1 Independent group of health experts representing key Australian health and mental health professional organisations, Submission 12, p. 1.

2 Ms Tamara Lions, Amnesty International Australia, Committee Hansard, 23 November 2012, p. 13.

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seekers in detention offshore. Most critically, it will not have the independence to properly highlight deficiencies in care provided under the auspices of the Department. Dr Choong-Siew Yong of the AMA pointed out the 'clear distinction' between an internal body and one that sits outside the Department.3 As noted in their submission,

the independent group of health experts made clear the importance of oversight separate to IHAG:

We believe that this should include independent review and monitoring processes of health services and the establishment of a separate, independent body to the Departmental health advisoiy group (IHAG) which can provide the results of its review and monitoring to the Secretary of the

Department of Immigration and Citizenship, the Chief Medical Officer of the Department and the IHAG on health service provision and risk mitigation strategies.4

1.6 The Australian Greens also have concerns about the ability of IHAG to focus on the particular challenges inherent in offshore detention. Evidence was heard by the Committee that IHAG's role is much broader than this and deals with health and mental health in the immigration system more broadly. In evidence from the Department, Mr Ken Douglas said:

Building on the good work that has been done by DeHAG, which has been in operation for six years, the incoming secretary has said, *ä would like to build on that and create a group that looks more broadly across the

immigration spectrum, not just in the detention environment, and looks at it not solely from a clinical perspective but also from a broader health policy and systems perspective.' That is what he is working to do in establishing the new IHAG.5

1.7 Because of the urgency and sensitivity of overseas detention, a panel dedicated to safeguarding the welfare of people under those circumstances is necessary to achieve the required level of timely and detailed oversight.

1.8 The need for an independent panel is reinforced by evidence regarding the fate of previous recommendations made by DeHAG. Without the necessary transparency, these recommendations are likely to languish with the Department or the Minister.6 An independent body, whose reports are made public via reports to Parliament, and whose remit includes oversight of the response to and implementation of recommendations, has a greater chance of seeing changes effected in a timely manner.

3 Committee Hansard, 23 November 2012, pp 4-5. 4 Submission 12, p. 1.

5 Committee Hansard, 23 November 2012, p. 35.

6 Committee Hansard, 23 November 2012, p. 3.

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Powers and terms of reference of the Independent Panel

1.9 Several witnesses called for the powers of the Panel to be further enumerated and clarified in the legislation.7 The Australian Greens agree with this suggestion, particularly with regard to establishing the powers of the Panel to visit and monitor operations in offshore detention facilities.

1.10 The Committee also heard evidence from the Department that no medical experts were consulted in the design of the existing facilities on Nauru,8 which the Committee heard are inadequate and already leading to serious health problems.9 To the degree that it is possible to do so, the bill should therefore ensure that the Panel is consulted proactively in the design of systems to accommodate asylum seekers in the challenging conditions of offshore processing centres in remote locations. Failing this, another body composed of medical experts, such as IHAG, should be consulted.

1.11 As noted in the majority report, proposed paragraph 198ABA(5)(c) of the Bill provides that the Panel may 'assess the health of an offshore entry person when he or she first arrives in a regional processing country'. Several witnesses commented on this clause and the potential difficulties it raises. For example, Dr Singleton, representing The Royal Australian College of General Practitioners, commented:

I cannot see how that would practically work. I think ensuring that the processes are in place to ensure that people are being assessed adequately is what is important.10 11

1.12 Although the Panel should have access to individuals and individual medical histories, this is only appropriate within the context of identifying or highlighting systemic problems and deficiencies. The bill should therefore be clearer that the Panel will have no role in routine assessment or clinical care.

Location of the group within the government

1.13 During the proceedings of the inquiry, there was some discussion between the Committee and witnesses regarding the proper place of the Independent Panel within the Government, and whether it should be managed by the Department or be housed elsewhere in the bureaucracy.11 At the public hearing, the Chair canvassed with

7 Professor Louise Newman, The Australian and New Zealand College of Psychiatrists, Committee Hansard, 23 November 2012, p. 10; Australian Human Rights Commission, Submission 18, p. 4; Australian Medical Association, Submission 20, p. 6.

8 Mr Ken Douglas, Department of Immigration and Citizenship, Committee Hansard, 23 November 2012, p. 39.

9 Dr Choong-Siew Yong, Australian Medical Association, Committee Hansard, 23 November 2012, p. 8; Dr Gillian Singleton, The Royal Australian College of General Practitioners, Committee Hansard, 23 November 2012, p. 8; Ms Tamara Lions, Amnesty International Australia, Committee Hansard, 23 November 2012, p. 13.

10 Committee Hansard, 23 November 2012, p. 9. 11 Committee Hansard, 23 November 2012, p. 20.

337

witnesses whether the Office of the Commonwealth Ombudsman would be an appropriate auspicing body, following a similar recommendation from the Palmer Inquiry.

1.14 Mr Karapanagiotidis OAM of the Asylum Seeker Resource Centre expressed the opinion that the Panel should exist independently of all other agencies. However, the Australian Greens accept that considerable overheads and delays may result from constituting an entirely new body independent of the rest of government. It is our view that, if properly resourced, the Panel could be auspiced under the Office of the Commonwealth Ombudsman.

Access by the Panel to facilities in third countries

1.15 The Committee heard evidence to the effect that it is not within the power of the government to assure access to offshore detention facilities by an independent panel as granting such access lies within the domain of the authorities in the offshore processing countries.

1.16 The Australian Greens do not consider this a legitimate objection to establishing the Panel. The entire architecture of the offshore processing system requires the Australian Government to gain access to the territories and detention areas for a large and growing number of officials and service providers, including serving military personnel. It is therefore difficult to see how a panel of medical experts would be routinely denied access by the officials of these countries.

Expertise represented on the Panel

1.17 During the inquiry, the question was raised of representation on the panel by a representative of a disability organisation. The Australian Greens note evidence from Associate Professor Amanda Gordon of the Australian Psychological Society who raised no objection to this suggestion.

1.18 The Australian Greens therefore consider it appropriate that such a representative should be eligible for membership of the Panel, in particular if such expertise is not present amongst those members nominated by other professional bodies.

Strengthening of IHAG

1.19 The Australian Greens note the recommendations in the majority report regarding the strengthening of IHAG's role in overseeing the offshore detention system. We maintain that, consistent with abundant evidence received by the Committee, IHAG as envisioned is manifestly inadequate as a mechanism for ensuring sufficient oversight of and action to safeguard the health and wellbeing of asylum seekers housed offshore.

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1.20 However, regardless of whether the Bill is passed or not, the

Australian Greens agree in principle with bolstering the role of IHAG, especially as their remit includes the immigration system more broadly.

1.21 Evidence received suggests that DeHAG's recommendations were often ignored. To remedy this situation, IHAG should report to the Minister, and this report should be tabled in Parliament. The Minister should be obliged to respond to this report within 45 days.

Recommendation 1

1.22 That the Senate should pass the bill.

Recommendation 2

1.23 That the bill be amended to further clarify the powers and responsibilities of the Panel, including its power to access detention facilities without notice and establishment of arrangements to monitor the implementation of the Panel's recommendations.

Recommendation 3

1.24 That the bill be amended to establish the Independent Panel under the office of the Commonwealth Ombudsman.

Recommendation 4

1.25 That the bill and explanatory memorandum be amended to clarify the role of the Panel with regard to assessing the health of individuals, to make it clear that this is to be done in the context of investigating system-wide problems only and not on a routine or clinical basis.

Recommendation 5

1.26 That the bill be amended to allow for representation on the panel by persons with expertise in disability.

Recommendation 6

1.27 That, if the bill is not passed, the terms and composition of the Immigration Health Advisory Group be amended so that its reports and recommendations to the Minister are tabled in Parliament, that the Minister is obliged to respond to those recommendations, and that IHAG must be consulted on the design of the offshore processing regime.

Senator Sarah Hanson-Young

Australian Greens

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Senator Richard Di Natale

Australian Greens

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1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

APPENDIX 1

SUBMISSIONS RECEIVED

Submitter

The Royal Australian and New Zealand College of Psychiatrists

Asylum Seeker Resource Centre

Office of the Australian Information Commissioner

Castan Centre for Human Rights Law

UnitingJustice Australia

Refugee and Immigration Legal Centre

Commissioner for Children and Young People WA

Amnesty International Australia

Australian Lawyers Alliance

Hotham Mission Asylum Seeker Project

Federation of Ethnic Communities' Councils of Australia

Independent group of health experts representing key Australian health and mental health professional organisations

Australian Psychological Society

Coalition for Asylum Seekers, Refugees and Detainees

Victorian Refugee Health Network and Refugee Health Network of Australia

The Royal Australasian College of Physicians

NSW Commissioner for Children and Young People, Children and Young People Commissioner (ACT), Guardian for Children and Young People (South Australia), Commissioner for Children (Tasmania) and Northern Territory Children's Commissioner

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Australian Human Rights Commission

Department of Immigration and Citizenship

Australian Medical Association

18

19

20

ADDITIONAL INFORMATION RECEIVED

1 Response to question on notice provided by the Australian Human Rights Commission on 29 November 2012

2 Response to questions on notice provided by the Department of Immigration and Citizenship on 29 November 2012

3 Response to questions on notice provided by the Office of the

Commonwealth Ombudsman on 30 November 2012

4 Additional information provided by Associate Professor Karen Zwi, The Royal Australasian College of Physicians, on 4 December 2012

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APPENDIX 2

WITNESSES WHO APPEARED

BEFORE THE COMMITTEE

ANDERSON, Ms Adrienne, Policy Officer and Solicitor and Migration Agent, Refugee and Immigration Legal Centre

DOUGLAS, Mr Kenneth, First Assistant Secretary, Detention Infrastructure and Services Division, Department of Immigration and Citizenship

FLETCHER, Mr Adam, Manager, Accountability Project, Castan Centre for Human Rights Law

GORDON, Associate Professor Amanda, Honorary Fellow; Convenor, Refugee Issues and Psychology Interest Group, Australian Psychological Society

GRIDLEY, Ms Heather, Manager, Public Interest, Australian Psychological Society

KARAPANAGIOTIDIS, Mr Kon, OAM, Chief Executive Officer, Asylum Seeker Resource Centre

LIONS, Ms Tamara, Government Relations Adviser, Amnesty International Australia

MANNE, Mr David, Executive Director, Principal Solicitor and Migration Agent, Refugee and Immigration Legal Centre

NEWMAN, Professor Louise, Fellow, The Royal Australian and New Zealand College of Psychiatrists

PARKER, Ms Vicki, First Assistant Secretaiy, Expert Panel Report Implementation, Refugee, Humanitarian and International Policy Division, Department of Immigration and Citizenship

PENOVIC, Ms Tania, Deputy Director, Castan Centre for Human Rights Law

SCOTT, Ms Ellisa, Case Worker, Hotham Mission Asylum Seeker Project

SINGLETON, Dr Gillian, Fellow, The Royal Australian College of General Practitioners

TRIGGS, Professor Gillian, President, Australian Human Rights Commission

YONG, Dr Choong-Siew, Psychiatry representative, Australian Medical Association (AMA) Federal Council; Deputy Chair, Child and Youth Health Committee, AMA

ZWI, Associate Professor Karen, Fellow, The Royal Australasian College of Physicians

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The Senate

Legal and Constitutional Affairs

Legislation Committee

Military Court of Australia Bill 2012

[Provisions]

Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 [Provisions]

October 2012

345

© Commonwealth of Australia

ISBN: 978-1-74229-704-0

This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

MEMBERS OF THE COMMITTEE

Members

Senator Patricia Crossin, Chair, ALP, NT

Senator Gary Humphries, Deputy Chair, LP, ACT

Senator Sue Boyce, LP, QLD

Senator Mark Turner, ALP, QLD

Senator Louise Pratt, ALP, WA

Senator Penny Wright, AG, SA

Participating members

Senator Mark Bishop, ALP, WA

Senator the Hon George Brandis SC, LP, QLD

Senator David Fawcett, LP, SA

Senator the Hon David Johnston, LP, WA

Senator Anne McEwen, ALP, SA

Secretariat

Ms Julie Dennett

Mr Owen Griffiths

Ms Ann Palmer

Ms Hannah Dibley

Committee Secretary

Principal Research Officer

Principal Research Officer

Administrative Officer

Suite S1.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

iii

347

348

TABLE OF CONTENTS

MEMBERS OF THE COM M ITTEE .................................................................... in

RECOMMENDATIONS...........................................................................................vii

CHAPTER 1....................................................................................................................1

Introduction..................................................................................................................1

Referral of inquiry......................................................................................................1

Background.................................................................................................................1

Conduct of the current inquiry..................................................................................7

Scope of this report.................................................................................................... 7

Acknowledgement.....................................................................................................7

Notes on references................................................................................................... 7

CHAPTER 2 ................................................................................................................... 9

Purpose and key provisions of the bills .................................................................... 9

Purpose of the Military Court Bill ............................................................................ 9

Puipose of the Consequential Amendments Bill....................................................12

CHAPTER 3 ................................................................................................................. 15

Key issues.....................................................................................................................15

Support for the Military Court.................................................................................15

Opposition to the Military Court.............................................................................18

Potential for constitutional challenges ................................................................... 19

Appointments to the Military Court.......................................................................20

Interaction between military and civilian justice systems ..................................... 25

Residual use of courts martial and defence force magistrates...............................28

Appeals from the Military Court of Australia........................................................31

349

CHAPTER 4 35

Trial by jury...............................................................................................................35

Constitutional issues................................................................................................36

Serious offences.......................................................................................................39

Civilian juries..........................................................................................................42

Consistency with service tribunal system..............................................................44

Reasons for judgement ........................................................................................... 47

Committee view.......................................................................................................48

DISSENTING REPORT BY LIBERAL SENATORS ..................................... 53

Trial by jury.............................................................................................................53

Appointments to the Military Court.......................................................................56

ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS ............. 59

APPENDIX 1............................................................................................................... 61

SUBMISSIONS RECEIVED...................................................................................61

APPENDIX 2 ...............................................................................................................63

WITNESSES WHO APPEARED BEFORE THE COMMITTEE ................... 63

v i

350

RECOMMENDATIONS

Recommendation 1

4.54 The committee recommends that the explanatory memoranda of the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 be amended to incorporate the additional policy rationale for the provisions of the bills that was received in evidence from the Attorney-General *s Department during the committee *s inquiry.

Recommendation 2

4.55 Subject to Recommendation 1, the committee recommends that the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 be passed.

vii 351

352

CHAPTER 1

Introduction

Referral of inquiry

1.1 The Military Court of Australia Bill 2012 (Military Court Bill) and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 (Consequential Amendments Bill) were introduced into the House of Representatives by the Attorney-General, the Hon Nicola Roxon MP, on 21 June 2012.1 On 28 June 2012, the provisions of both bills were jointly referred to the Senate Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 14 August 2012.1 2 The reporting date was subsequently extended to 9 October 2012.3

Background

1.2 The bills seek to establish the Military Court of Australia (Military Court) as a specialist federal court to deal with the trial of serious service offences, and make other consequential amendments and reforms to Australia's military justice system. The Military Court would replace the current system of service tribunals, such as courts martial and defence force magistrates.

Australia's military justice system 4

1.3 The military justice system applies to all Australian Defence Force (ADF) members in times of peace and war, whether in Australia or overseas. The military justice system supports the maintenance of discipline in the ADF and provides a

framework within which service offences by ADF members are investigated and prosecuted.

1.4 The Defence Force Discipline Act 1982 (Defence Force Discipline Act) underpins the military justice system, providing for the investigation of service offences, types of service offences, available punishments, the establishment of

1 House of Representatives Votes and Proceedings, 21 June 2012, p. 1595.

2 Journals of the Senate, 28 June 2012, pp 2696-2697. Both bills were also referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (FADT Committee), for inquiry and report by 14 August 2012. The FADT Committee tabled a brief report in the Senate on 14 August 2012, in which it indicated that it had decided not to duplicate the work of the committee by conducting a parallel inquiry.

3 Journals of the Senate, 14 August 2012, p. 2719.

4 This section of the committee's report draws on the Senate Foreign Affairs, Defence and Trade References Committee report, The effectiveness of Australia's military justice system, June 2005, pp 7-15.

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service tribunals, trial procedures before those service tribunals, and rights of review and appeal. Service offences under the Defence Force Discipline Act are generally grouped into three categories:

" military discipline offences specific to the defence forces (such as absence without leave);

" offences that have a close civilian criminal law equivalent but which relate to service personnel and equipment (such as assaulting a superior officer); and

" offences imported directly from the civilian criminal law from the law

applicable in the Jervis Bay Territory.

1.5 The Defence Force Discipline Act complements, and does not replace, the civilian criminal law in force in Australia applicable to defence personnel. The consent of the Commonwealth Director of Public Prosecutions is required before proceedings in relation to certain offences with civilian equivalents can be instituted.5 Where service offences are prosecuted under military jurisdiction, the Defence Force Discipline Act provides for the creation of service tribunals with the power to try ADF members. These are courts martial, defence force magistrates and summary authorities.6

1.6 In broad terms, a court martial is an ad hoc panel of officers, more senior in rank than the accused, overseen by a legal officer (a judge advocate), which is convened to try a service offence. Under the Defence Force Discipline Act, there are two types of court martial.7 A general court martial consists of a president and four other members who are able to hear any charge and sentence those convicted to serious penalties (up to life imprisonment).8 A restricted court martial consists of a president and two other members with restricted powers of punishment (up to six months imprisonment).9 A defence force magistrate is an appointed legal officer who determines referred matters alone, and has the same jurisdiction and powers as a restricted court martial.10 11 A summary authority is a commanding officer, or other officer of the ADF, who is authorised to determine less serious offences and impose lesser sentences.11

1.7 The Defence Force Discipline Act also provides for a number of review and appeals processes. Service tribunals must forward a record of proceedings to a reviewing authority for automatic review following conviction of a person for a

5 Section 63, Defence Force Discipline Act.

6 Part VII, Defence Force Discipline Act.

7 Subsection 114(1), Defence Force Discipline Act.

8 Subsection 114(2), Defence Force Discipline Act.

9 Subsection 114(3), Defence Force Discipline Act.

10 Section 129, Defence Force Discipline Act.

11 Sections 106-108, Defence Force Discipline Act.

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service offence.12 In particular, convictions (but not punishments) handed down from a court martial or a defence force magistrate may be appealed to the Defence Force Discipline Appeals Tribunal (DFDAT).13 Appeals to the DFDAT are only possible on questions of law. The DFDAT is composed of federal, and state and territory judges appointed by the Governor-General. Further appeals on questions of law can be made to the Federal Court of Australia.14 15

1.8 A number of other key officers and organisations contribute to Australia's military justice system. These include:

" the Judge Advocate General (JAG),13 a judicial officer appointed by the Governor-General, who has oversight over the operation of the judicial aspects of the military discipline system;

" the Judge Advocates, who are legal officers appointed by the JAG, and

nominated to courts martial to advise, rule and direct on matters of law, or who are appointed as defence force magistrates;

" the Director of Military Prosecutions,16 who conducts prosecutions at courts martial and defence force magistrate trials, and represents the ADF at appellate trials and courts;

" the Registrar of Military Justice,17 who deals with case management and administration of disciplinary justice trials;

" the Director of Defence Counsel Services, who provides legal representation and advice to persons accused of service offences; and

" the Office of the Inspector General Australian Defence Force, which provides a means of review and audit of the military justice system independent of the chain of command.

Joint Committee on Foreign Affairs, Defence and Trade report

1.9 On 21 June 1999, the Joint Committee on Foreign Affairs, Defence and Trade (Joint Committee) tabled a report titled, Militaiy Justice in the Australian Defence Force. The Joint Committee made a large number of recommendations regarding the military justice system, which took into account other concurrent reforms of the

military justice system being undertaken by the ADF. In his foreword to the report, the Chair, Senator David MacGibbon, noted that, while the Joint Committee 'received no

12 Section 152, Defence Force Discipline Act.

13 Section 20, Defence Force Discipline Appeals Tribunal Act 1955.

14 Section 52, Defence Force Discipline Appeals Tribunal Act 1955.

15 Section 179, Defence Force Discipline Act.

16 Section 188G, Defence Force Discipline Act.

17 Section 188F, Defence Force Discipline Act.

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evidence to support an allegation of a lack of independence in the military justice system there is no question that this perception exists in some quarters'.18

1.10 The Joint Committee also received a 'considerable amount of evidence' to support 'the transfer of responsibility for the system of military discipline to an authority separate to the ADF'.19 The principle reason underlying this proposal was 'the lack of impartiality of service tribunals and the independence of the ADF judiciary'.20 In particular, a number of submissions to the Joint Committee's inquiry

'suggested that a separate military court, within the existing Australian judicial system could best facilitate an independent and impartial trial'.21 However, the Joint Committee's report concluded that Australia did not 'have the volume of Military trials to warrant a permanent court':22

While the Committee acknowledged considerable support for the transfer of responsibility for the military discipline to an authority separate to the ADF it did not support the creation of a separate military judiciary 23

Senate Committee report

1.11 On 16 June 2005, the Senate Foreign Affairs, Defence and Trade References Committee (Senate FADT Committee) tabled a report titled, The effectiveness of Australia's military justice system. The Senate FADT Committee concluded that 'major change is required to ensure independence and impartiality in the military justice system'.24 25 A key recommendation made in the report was that the

Australian Government should create a permanent military court 'in accordance with Chapter III of the Commonwealth Constitution to ensure its independence and impartiality'.23

18 Joint Committee on Foreign Affairs, Defence and Trade, Military Justice in the Australian Defence Force, June 1999.

19 Joint Committee on Foreign Affairs, Defence and Trade, Military Justice in the Australian Defence Force, June 1999, p. 117.

20 Joint Committee on Foreign Affairs, Defence and Trade, Military Justice in the Australian Defence Force, June 1999, p. 117.

21 Joint Committee on Foreign Affairs, Defence and Trade, Military Justice in the Australian Defence Force, June 1999, p. 120.

22 Joint Committee on Foreign Affairs, Defence and Trade, Military Justice in the Australian Defence Force, June 1999, p. 126 (quoting a submission from Colonel KNorthwood).

23 Joint Committee on Foreign Affairs, Defence and Trade, Military Justice in the Australian Defence Force, June 1999, p. 126.

24 Senate Foreign Affairs Defence and Trade References Committee, Tire effectiveness of Australia's military justice system, June 2005, p. xxi.

25 Senate Foreign Affairs Defence and Trade References Committee, The effectiveness of Australia's military justice system, June 2005, p. 102.

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1.12 The Australian Government's response to the Senate FADT Committee's report indicated that, while it agreed with the recommendation to establish a permanent military court, it did not 'support the creation of a permanent military court under Chapter III of the Constitution'. The government also noted that its current advice was that 'there are significant policy and legal issues raised by the proposal to use existing courts for military purposes'."6

Attempt to create an Australian Military Court

1.13 On 11 December 2006, the Defence Legislation Amendment Act 2006 received Royal Assent. This legislation amended the Defence Force Discipline Act to create the Australian Military Court. A note to the section creating the Australian Military Court provided that it was 'not a court for the purpose of Chapter III of the Constitution'.26 27 While the amendments provided that the Australian Military Court was a 'court of record', a second note indicated that it was to be classified as a 'service tribunal' for the purposes of the Defence Force Discipline Act. Under the legislation, the military judges were to be appointed to the Australian Military Court by the Governor-General for a fixed period and these appointments were to end if the appointees ceased to be members of the ADF. Offences could be tried before the Australian Military Court by a military judge alone, or with a military jury, depending on the class of offence to be tried.

1.14 Prior to the passage of this legislation, a Senate Foreign Affairs, Defence and Trade Legislation Committee inquiry identified a number of concerns with the proposal to create the Australian Military Court, including 'the possibility of a successful High Court challenge to its validity'.28 That committee recommended that

the bill should be amended or redrafted, following a comprehensive consultation process, before proceeding any further.29

High Court's ruling of invalidity in Lane v Morrison

1.15 On 26 August 2009, in the case of Lane v Morrison,30 the High Court of Australia (High Court) unanimously ruled that the establishment of the Australian Military Court under the 2006 legislation was constitutionally invalid. Central to the High Court's decision was the principle that the judicial power of the Commonwealth can only be exercised by a court created in accordance with

26 Department of Defence, Government Response to Senate Foreign Affairs, Defence and Trade References Committee, October 2005, pp 14-15.

27 Defence Legislation Amendment Act 2006, Schedule 1, Item 11.

28 Senate Foreign Affairs, Defence and Trade Committee, Defence Legislation Amendment Bill 2006 [provisions], October 2006, p. 5.

29 Senate Foreign Affairs, Defence and Trade Committee, Defence Legislation Amendment Bill 2006 [provisions], October 2006, pp 5-7.

30 (2009) 239 CLR 230.

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Chapter III of the Constitution. In particular, Chief Justice French and Justice Gummow held:

[T]he jurisdiction conferred upon the [Australian Military Court]...to try charges of service offences, involves the exercise of the judicial power of the Commonwealth otherwise than in accordance with Ch III of the Constitution.31

1.16 Similarly, the joint judgement of Justices Hayne, Heydon, Crennan, Kiefel and Bell stated:

For the [Australian Military Court] to make a binding and authoritative determination of such issues pursuant to the [Defence Force Discipline Act] is to exercise the judicial power of the Commonwealth. There is no dispute that the [Australian Military Court] is not constituted in accordance with Ch III...

[T]he provisions creating the [Australian Military Court] are invalid...because it is established to make binding and authoritative decisions of guilt or innocence independently from the chain of command of the defence forces. It is to exercise the judicial power of the

Commonwealth...The whole of Div 3 of Pt VII [establishing the Australian Military Court] should be declared invalid.32

1.17 Following the High Court's ruling, the Australian Government introduced the Military Justice (Interim Measures) Act (No. 1) 2009 and the Military Justice (Interim Measures) Act (No. 2) 2009, which re-established the pre-2007 system of courts martial and defence force magistrates.33

Military Court of Australia Bill 2010

1.18 On 24 June 2010, the then Attorney-General, the Hon Robert McClelland MP, introduced the Military Court of Australia Bill 2010 into the House of

Representatives. The provisions of that bill were referred by the Senate to the Legal and Constitutional Affairs Legislation Committee, for inquiry and report by 21 September 2010.34 35 However, following the prorogation of the 42nd Parliament by the Governor-General on 19 July 2010, the committee resolved to discontinue its inquiry into the provisions of the bill (prior to holding any public hearings)33 and the bill subsequently lapsed.

31 (2009) 239 CLR 230 at 237.

32 (2009) 239 CLR 230 at 266-267.

33 Explanatory Memorandum (EM), Military Court Bill, p. 1.

34 House of Representatives Votes and Proceedings, 24 June 2010, p. 1906; Journals of the Senate, 24 June 2010, p. 3773.

35 Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the provisions of the Military Court of Australia Bill 2010, 23 July 2010, p. 1, available from the committee's website: www.aph.gov.au/senate legalcon.

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Conduct of the current inquiry

1.19 The committee advertised the inquiry in The Australian newspaper on 4 July 2012 and details of the inquiry, the bills and associated documents were placed on the committee's website. The committee also wrote to a number of organisations and individuals, inviting submissions by 13 July 2012. Submissions continued to be accepted after that date.

1.20 The committee received 15 submissions, which are listed at Appendix 1. All submissions are available on the committee's website at

http://www.aph.gov.au/senate legalcon.

1.21 The committee held a public hearing for the inquiry in Canberra on

14 September 2012. A list of the witnesses who appeared at the hearing is at Appendix 2, and the Hansard transcript is also available through the committee's website.

Scope of this report

1.22 The report is divided into four chapters: chapter 2 outlines the purpose and key provisions of the bills; and chapter 3 deals with the key issues raised during the inquiry, other than the issue of trial by jury before the Military Court, which is addressed separately in chapter 4. The committee's view and recommendations are also contained in chapter 4.

Acknowledgement

1.23 The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.

Notes on references

1.24 References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcript.

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CHAPTER 2

Purpose and key provisions of the bills

Purpose of the Military Court Bill

2.1 In her Second Reading Speech, the Attorney-General outlined a number of the key features of the Military Court of Australia (Military Court) established by the Military Court Bill:

This bill establishes the Military Court of Australia in accordance with chapter III of the Constitution...

The Military Court of Australia will be a separate and uniquely identifiable federal court. This specialist court to hear Defence Force service offences will strengthen morale and operational effectiveness in the Australian Defence Force. This bill will provide the Military Court with the necessary independence and constitutional protections necessary for an impartial judiciary. Importantly, judicial officers cannot be appointed if they are

currently serving in the ADF...

Under this legislation, all judicial officers appointed to the Military Court will be required to, by reason of experience or training, understand the nature of service in the Australian Defence Force...

The court will not include the option of a trial by jury...

The Military Court will consist of two divisions, the General Division, and the Appellate and Superior Division...

The Military Court of Australia will be a separate Chapter III court, and will be administered through the Federal Court of Australia. It is expected that the court will use the existing infrastructure of the Federal Court.1

Key provisions of the Military Court Bill

2.2 The key provisions of the Military Court Bill provide for the establishment of the Military Court under Chapter III of the Constitution and provide for, among other things, the structure, jurisdiction, practice and procedure of the court.

Creation of the court

2.3 Part 2 of the Military Court Bill creates the Military Court under Chapter III of the Constitution, provides for the two divisions of the court (the General Division, and the Appellate and Superior Division), and provides for the appointment of the Chief Justice, Judges and Federal Magistrates to the Military Court. The Explanatory

1 House of Representatives Hansard, 21 June 2012, pp 7413-7414.

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Memorandum (EM) to the Military Court Bill includes a diagram outlining the structure of the Military Court (extracted below).2

Diagram 1. Structure of the Military Court

Appellate and Superior Division

General Division

Chief Justice

Appeals and Schedule 1 serious service offences

Serious service offences and less serious service offences on election

Appointment of judges

2.4 Clause 11 provides that Judges and Federal Magistrates of the Military Court are to be appointed by the Governor-General by commission. Subclause 11(3) provides that a person must not be appointed a Judge or Federal Magistrate of the Military Court unless:

" the person is, or has been, a judge of another court created by the parliament, or a judge or magistrate of a court of a state or territory;

" the person by reason of experience or training, understands the nature of service in the ADF; and

" the Defence Minister has been consulted in relation to the appointment.

2.5 Further, subclause 11(4) provides that a person must not be appointed as a Judge or Federal Magistrate of the Military Court if he or she is a member of the ADF; and subclause 12(1) provides that a Judge of the Military Court may hold office as a judge of another court 'created by the Parliament'.

Original jurisdiction of the court

2.6 Part 5 of the Military Court Bill deals with the original jurisdiction of the Military Court, including:

" the original jurisdiction of the Military Court in respect of matters relating to charges of sendee offences;

" procedures relating to the institution of proceedings, including charge sheets;

" pre-trial matters, including pre-trial hearings and disclosure by the parties; and

2 EM, Military Court Bill, p. 3. The diagram of the structure of the Military Court also indicates the serious service offences in Schedule 1 to be dealt with by the Appellate and Superior Division (discussed below).

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matters relating to pleas, trials and verdicts.

Page 11

2.7 In particular, clause 63 provides that the original jurisdiction of the Military Court includes services offences under the Defence Force Discipline Act, such original jurisdiction vested in it 'by laws made by the Parliament', and 'any jurisdiction vested in it to hear and determine appeals from decisions of persons,

authorities or tribunals other than courts'. The EM to the bill states that this will allow the Military Court to be vested with original jurisdiction to try service offences which would otherwise be heard by a summary authority on the election of the accused person or on referral by a service tribunal. Further, the Military Court will have original jurisdiction to hear and determine appeals on questions of law from certain determinations of courts martial and defence force magistrates.3

2.8 Clause 64 provides that charges of service offences are to be dealt with otherwise than on indictment. The EM states that this means that such offences 'will not be tried before a jury' and that this is 'consistent with the determination of service offences under the [Defence Force Discipline Act] which also does not provide for trial by civilian jury'.4

Appellate jurisdiction of the court

2.9 Part 6 of the Military Court Bill deals with the appellate jurisdiction of the Military Court, including:

" the jurisdiction of the Military Court to hear appeals from certain judgements and decisions;

" matters relating to bringing appeals and the constitution of the Military Court in exercising appellate jurisdiction;

" powers of the Military Court in exercising appellate jurisdiction; and

" provision for cases to be stated and questions to be reserved for consideration by a Full Court.

2.10 Part 7 of the Military Court Bill deals with appeals from the Military Court to the High Court of Australia. In particular, subclause 113(1) restricts appeals from a single Judge or Federal Magistrate exercising original jurisdiction of the Military Court.

3 EM, Military Court Bill, p. 29.

4 EM, Military Court Bill, p. 29.

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Sentences and orders

2.11 Part 9 of the Military Court Bill deals with sentences and orders, including:

" the sentencing principles that apply to the Military Court when determining what action to take under Part 9 in relation to a person who is convicted of a service offence;

" the punishments that may be imposed by the Military Court;

" the suspension of punishments;

" remission of punishments; and

" restitution and reparation orders.

Other matters

2.12 Part 11 of the Military Court Bill deals with the practices and procedures of the Military Court, including:

" records of proceedings;

" matters relating to the conduct of proceedings;

" matters relating to evidence and witnesses;

" provision for the use of video links or audio links in proceedings; and

" matters relating to orders and judgements of the Military Court.

2.13 In particular, clause 157 provides that the Military Court must keep a record of its proceedings. Clause 176 provides that an order of the Military Court must be in writing; or be reduced to writing as soon as possible.

2.14 Schedule 1 of the Military Court Bill lists the serious service offences to be dealt with by the appellate and superior divisions of the Military Court.

Purpose of the Consequential Amendments Bill

2.15 The Attorney-General highlighted the key features of the Consequential Amendments Bill in her Second Reading Speech:

The bill makes amendments to defence and other legislation, consequential to the creation of a new Military Court of Australia. It also provides arrangements for the transition to the new Military Court system from the current interim system of courts martial and Defence Force magistrates...

Courts martial and Defence Force magistrates will be retained as a residual or backup system. They will only be used in very rare circumstances where it is necessary, but not possible, for the Military Court to conduct a trial overseas...

The bill also abolishes the Defence Force Discipline Appeal Tribunal... [and] the jurisdiction of the tribunal will be absorbed by the Military Court...

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This bill also includes further initiatives to enhance the Australian Defence Force military discipline system. It modernises the existing antiquated provisions dealing with persons found unfit for trial or persons acquitted on the basis of mental impairment...

This bill will ensure that recent initiatives applying to other federal courts will apply consistently to the Military Court of Australia. Important reforms to judicial complaints handling currently before the parliament will also apply to the Military Court of Australia. The bill will provide a clearer approach to the granting of suppression orders consistent with other federal courts.5

Key provisions of the Consequential Amendments Bill

2.16 The key provisions of the Consequential Amendments Bill are contained in the five schedules:

" Schedule 1 deals with amendments to the Defence Force Discipline Act;

" Schedule 2 deals with amendments to other defence legislation;

" Schedule 3 deals with amendments to a range of other legislation;

" Schedule 4 repeals the Defence Force Discipline Appeals Act 1955; and

" Schedule 5 deals with application, saving and transitional provisions.

2.17 The EM to the Consequential Amendments Bill summarises the major changes made by these amendments, including:

" abolition of the Defence Force Discipline Appeals Tribunal (DFDAT) (the jurisdiction of the DFDAT will be absorbed by the Military Court);

" the retention of courts martial and defence force magistrates as a residual system for use in the rare instances where the Military Court determines that it is necessary, but not possible, for the Military Court to conduct a trial overseas;

" the current internal review mechanisms for convictions and punishments imposed by service tribunals will be maintained but, where an appeal is made to the Military Court from a decision of a court martial or defence force magistrate, then these internal review processes will be discontinued;

" there will be no appeal rights from a decision of a summary authority to the Military Court, but ADF members charged with service offences may elect to be tried, instead, by the Military Court;

" the Defence Force Discipline Act will be amended to clarify the status and character of service offences as an offence against a law of the

Commonwealth - this will affect when convictions for services offences will need to be disclosed;

5 House of Representatives Hansard , 21 June 2012, pp 7415-7416.

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" persons found unfit for trial or persons acquitted on the basis of mental

impairment will be dealt with similarly to those in the Commonwealth civilian criminal justice system;

" the positions of the Registrar of Military Justice and the Chief Judge Advocate will be abolished (their roles support courts martial and defence force magistrates, which are anticipated to be rarely required in the new system);

" removal of references to 'old system offences', which were a transitional measure when the Defence Force Discipline Act was introduced and can no longer be tried due to statutory time limits having now expired;

" the requirement in existing section 63 of the Defence Force Discipline Act will continue to require the Director of Military Prosecutions to obtain the consent of the Commonwealth Director of Public Prosecutions (CDPP) prior to prosecuting certain serious service offences with civilian criminal law equivalents;

" the Director of Military Prosecutions will continue to exist as a separate statutory office responsible for prosecuting charges in the Military Court; and

" amendments to the Defence Act 1903 will afford the Office of the Director of Defence Counsel Services (DDCS) statutory recognition and will provide for the functions and responsibilities of the DDCS.

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CHAPTER 3

Key issues

3.1 Several witnesses and submissions to the inquiry expressed broad support for the establishment of the Military Court and the other proposed reforms to the military justice system contained in the bills.1 However, a number of specific issues and concerns were raised in relation to:

" potential constitutional challenges to the Military Court;

" the appointment of judicial officers to the Military Court;

" the interaction between the civilian and military justice systems;

" the residual use of courts martial and defence force magistrates; and

" appeals from the Military Court.

3.2 Some submissions and witnesses recommended that the establishment of the Military Court should be reconsidered or should not proceed.1 2 These persons and organisations questioned the need for the Military Court and highlighted flaws that they consider exist in the approach to the establishment of the Military Court. They also emphasised that the key purpose of the military justice system is the maintenance of discipline in the armed forces, and argued that the existing service tribunal system of courts martial and defence force magistrates is a superior option to achieve this purpose.3

Support for the Military Court

3.3 Several submissions considered that the establishment of the Military Court would improve the independence, transparency and impartiality of the military justice system. For example, Mr Alexander Street SC noted that '[ojnly real Courts administer justice and it is high time the outstanding Australians that serve in our great ADF are recognised as entitled to a real Military Justice System'.4

1 For example, see, Mr Alexander Street SC, Submission 2, p. 3; Ms Gabrielle Appleby and Professor John Williams, Submission 3, p. 1; Inspector General Australian Defence Force, Submission 8, p. 1; General D.J. Hurley AC, DSC, Chief of the Defence Force, on behalf of the Australian Defence Force, Submission 9, p. 1.

2 Mr David McLure, Submission 11, p. 1; Mr Alister Abadee, Submission 12, p. 1; Returned and Services League of Australia, Submission 5, p. 1; Australia Defence Association, Submission 13, p. 3; Mr Neil James, Australia Defence Association, Committee Hansard, 14 September 2012, p. 3.

3 For example, Australia Defence Association, Submission 13, p. 3; Mr Alister Abadee, Committee Hansard, 14 September 2012, p. 26.

4 Submission 2, p. 3.

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3.4 In particular, General David Hurley AC, DSC, Chief of the Defence Force, noted that, while commanding officers will continue to deal summarily with the overwhelming majority of service offences, 'the changes proposed by the Bills will mean that the Australian people and the ADF can have confidence that the trial of ADF personnel charged with serious offences will conform to the highest standards of independence, impartiality and fairness'.3 The Chief of the Defence Force advised the committee that the 'ADF strongly supports the [Militaiy Court] Bills and Defence has been closely involved with their development'.5 6

3.5 The Chief of the Defence Force outlined a number of improvements made by the bills, including:

" the Military Court would possess a 'strong service character' with ADF

officers prosecuting and defending matters before the court and judicial officers required to have an understanding of the nature of service in the ADF;

" the modernisation of the Defence Force Discipline Act's unfitness for trial and mental impairment provisions;

" the statutory recognition for the Director of Defence Counsel Services;

" the option for all ADF personnel to elect to have a charge, which would

otherwise be heard by a summary authority, heard by the Military Court;

" the broader rights of appeal for the Director of Military Prosecutions; and

" the clarification of rules for the disclosure of service offence convictions (which were described as balancing 'accountability and fairness' as service disciplinary offences will only be discloseable for service purposes).7

3.6 Mr Geoff Earley AM, Inspector General Australian Defence Force, also welcomed the establishment of the Military Court. At the public hearing, he explained that the amendments establishing the Military Court would simplify disciplinary processes:

One of the reasons why [the current system] is so complicated is because of the present elective system, both where people can elect trial by court martial or [defence force magistrate] in the present system or they can elect to be tried by a [commanding officer] and agree, if they are found guilty, to have imposed on them an elective punishment. The process that has to take into account those circumstances is a bit complicated. The change under the new court is to a simpler scheme whereby any member who is charged with an offence can elect for trial by the military court.8

5 Submission 9, p. 2.

6 Submission 9, p. 1.

7 Submission 9, pp 1-2.

8 Committee Hansard, 14 September 2012, p. 35.

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3.7 However, the Inspector General cautioned that, while aspects of the military justice system may be similar to the civil system, the two systems are not

interchangeable:

[I]t is important to keep in mind that the military justice system...is there to fulfil a specialised puipose which is not always, or necessarily, directly comparable to the objectives of a civil system. In particular, the primary role and underlying rationale of the military justice system is to assist command with the maintenance and enforcement of Service discipline in a manner that takes due regard of the individual rights of ADF

members...There will be a limit therefore to the extent to which the two systems can be usefully aligned without distracting from the disciplinary purpose of the military justice system.9

International law obligations

3.8 The consistency of the Military Court with Australia's international law obligations was raised during the inquiry. Ms Gabrielle Appleby and

Professor John Williams from the University of Adelaide Law School submitted:

The general move towards a Chapter III specialist military court brings Australia into line with many of its international obligations, most particularly the right to a trial before an independent and impartial tribunal. Internationally, and particularly in Europe, courts-martial have been seen as

lacking the requisite independence from the Executive, the possibility of partiality because of influence, conscious or not, from the military chain of command, and the review of decisions by a non-independent body.10 11

3.9 In a joint submission, Associate Professor Alison Duxbury, Dr Rain Liivoja, and Associate Professor Matthew Groves also highlighted international human rights standards, specifically Article 14 of the International Covenant on Civil and Political Rights, which provides that '[i]n the determination of any criminal charge...everyone

shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law'. Further:

[Cjases on military justice systems in other jurisdictions have raised issues directly relevant to the establishment of a permanent court - notably the preference for the involvement of civilians in military justice systems and the preference for some form of permanency in military courts...The

establishment of the Military Court of Australia will address both concerns articulated in these cases: judges will be civilians and will also have the requirements of tenure recognised by international human rights law, and most importantly, the Commonwealth Constitution ."

9 Submission 8, p. 1

10 Submission 3, p. 5.

11 Submission 6, pp 2-3.

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Opposition to the Military Court

3.10 The Law Council of Australia provided the committee with its commentary on a previous draft of the Military Court Bill and Consequential Amendments Bill. This commentary outlined a number of concerns with the establishment of the Military Court:

No compelling reason has been shown to dispose of the Courts Martial system, which has existed for as long as the ADF and has withstood numerous High Court challenges. The 2005 Review of the Effectiveness of Australia's Military Justice System did not find fault with the Court Martial system; the concern identified was with perceived undue influence by the chain of command in military discipline matters. Those concerns have largely been resolved by appointment of the [statutorily] independent Director of Military Prosecutions (DMP) and the proposed statutory appointment of the Director of Defence Counsel Services.12

3.11 Similarly, the Australia Defence Association (ADA) and the Returned and Services League of Australia (RSL) questioned the rationale for the establishment of the Military Court. In particular, witnesses for both organisations noted that one of the

key reasons for proposing the establishment of a military court was an apprehension, (indicated in the Senate Committee's 2005 report13), that a constitutional challenge could be made to the service tribunal system. However, they pointed out that this *fear' had been removed due to subsequent decisions of the High Court which had upheld the validity of the service tribunal system.14

3.12 Mr Alister Abadee considered that the proposed legislation should not be passed. He argued that there are other mechanisms, such as ensuring the statutory independence of Judge Advocates, 'which may secure an enhanced degree of independence and impartiality'. 15 Further:

[T]here is a heavy onus upon proponents of change to prove how reform of an institution which predates federation will likely improve the lot of the users of the system. By the Bill's effective transfer of the power to adjudicate upon infractions of discipline, and (thereafter) the power to impose discipline, from command (through peer review) to civilian judicial officers, that onus has not been discharged.16

12 Submission 4, Attachment 1, pp 1-2.

13 Senate Foreign Affairs, Defence and Trade References Committee report, The effectiveness of Australia's military justice system , June 2005, p. 98.

14 The Hon Alan Abadee AM RFD QC, Returned and Services League of Australia, Committee Hansard, 14 September 2012, p. 2; Mr Neil James, Australia Defence Association, Committee Hansard, 14 September 2012, p. 3. 15 Submission 12, p. 3.

16 Submission 12, p. 3.

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3.13 Mr David McLure also argued that the Military Court Bill should not be passed. He noted that the Bill proposes a system where a statutorily independent Director of Militaiy Prosecutions prosecutes charges before a civilian judge in a Chapter III court. In his view, '[t]he almost complete disengagement of military officers from this layer of the military justice system undermines its objective of maintaining a disciplined and effective fighting force'.1 z He argued:

The primary justification for the existence of a separate military justice system in Australia is that such a system maintains discipline in the [ADF] and thereby enhances its capacity to be an effective fighting force. A system that excludes military officers from the determination of serious offences is less likely to achieve that effect.17 18

Potential for constitutional challenges

3.14 Several witnesses and submissions raised their concerns regarding likely constitutional challenges to the establishment of the Military Court, as well as the potential impact on the ADF should the Military Court be found to be constitutionally invalid.19 20 For example, Brigadier Lynette McDade, the Director of Military Prosecutions, expressed her hope that the bills are 'constitutionally sound because it is inevitable that they will be challenged'."

3.15 A range of potential constitutional challenges to the establishment of the Military Court were described, including questions regarding the right of ADF members to trial by jury before the Military Court (addressed separately in chapter 4 of this report).21 For example, the Law Council of Australia's comments on the draft bills noted its concern that 'any new Chapter III court may have constitutional flaws, particularly where the accused may face civil trial, military trial or Court Martial'.22 23

Ms Gabrielle Appleby and Professor John Williams also raised the prospect that a constitutional challenge could be made on the basis that the establishment of a Chapter III court may remove the Governor-General's command of the armed forces, as vested in section 68 of the Constitution. However, in their view 'this argument is unlikely to be successful'."3

17 Submission 11, p. 14.

18 Submission 11, p. 1.

19 For example, South Australian Bar Association and Law Society of South Australia, Submission 7, p. 1.

20 Submission 10, p. 1.

21 See, for example, Mr David McLure, Submission 11, p. 13; Mr Alexander Street SC, Submission 2, pp 8, 12.

22 Submission 4, Attachment 1, p. 3.

23 Submission 3, p. 6.

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3.16 Others contrasted the High Court decisions affirming the current system of service tribunals as constitutionally sound with the legal uncertainty which would be created by the establishment of the Military Court.24 The possible negative impact on the military justice system if the Military Court were found to be constitutionally invalid was also emphasised.25 For example, Mr David McLure argued:

It is inevitable that there will be a challenge to the constitutional validity of the [Military Court], If successful, the ADF would again suffer substantial disruption to its disciplinary processes. The safer and better course is to retain and improve the existing system of military justice.26

3.17 Conversely, Associate Professor Alison Duxbuiy, Dr Rain Liivoja, and Associate Professor Matthew Groves considered that 'the validity of the current system is assumed rather than assured'; and noted the strong dissents made during the previous High Court challenges to the current system of military justice, and the

absence of'a clear and coherent consensus within the [High] Court'.27

Appointments to the Military Court

3.18 The requirement for the appointment of judicial officers to the Military Court and the number of suitable candidates were areas of concern for witnesses and submitters.

Experience and training

3.19 Subclause 11(3) of the Military Court Bill provides that those appointed to the Military Court must 'by reason of experience or training' understand the nature of service in the ADF. The ADA expressed its concern regarding the lack of clarity in this requirement:

[T]here is no standard or criterion as to what this experience or training is to consist of, or how the training or experience is to be attained, measured or indeed how long its duration needs to be. In almost all cases, it could only be actual and effective service in the defence force which could possibly provide appropriate training or experience...It will not be gained at a university or in the practice of civil or criminal law in the Australian community. Nor will it be gained from merely reading military history or

24 For example, the Hon Alan Abadee AM RFD QC, Returned and Services League of Australia, Committee Hansard, 14 September 2012, p. 1; Mr Alister Abadee, Committee Hansard, 14 September 2012, p. 26; Mr David McLure, Committee Hansard, 14 September 2012, p. 27.

25 For example, Mr Paul Willee QC, Law Council of Australia, Committee Hansard, 14 September 2012, pp 12, 15; Brigadier L.A. McDade, Director of Military Prosecutions, Submission 10, p. 1.

26 Submission 11, p. 2.

27 Submission 6, p. 1.

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from minor contact with military topics through administrative law proceedings.28

Departmental response

3.20 In an answer to a question on notice, the Attorney-General's Department confirmed that there is no definition of 'training or experience' for the purposes of subclause 11(3), but that the requirement of 'experience or training' is intended to incorporate 'a more practical basis' for understanding the nature of service in the ADF:

Like any criteria for appointment, this would be applied on a case by case basis in relation to potential candidates for appointment...The criteria for experience and training could be met by demonstrating prior service in the

Australian Defence Force (permanent, regular or reserve). However, the eligibility criteria do not require the person to have had prior service. If this were an eligibility requirement, this would reduce the flexibility of criteria for appointment and potentially have an impact on the perceived independence and impartiality of the Military Court.

There would be other ways that an applicant may gain the relevant experience or training which would make them suitable for appointment to the Court. However, it is unlikely that academic study alone would be sufficient to satisfy subclause 1 l(3)(b). In the version of the Bill that was introduced in 2010 the criterion for appointment was expressed as 'experience or knowledge of the nature of service in the Australian Defence Force'. This has been changed in the [current] version of the Bill...29

3.21 The Attorney-General's Department also noted that subclause 11(3) requires the Minister of Defence to be consulted in relation to appointments to the court. Further, the requirements in the bill are 'designed to provide for appropriate consideration of the suitability of candidates in light of the role of the Court in the

military justice system'.30 At the public hearing, a representative from the Department of Defence highlighted that the requirement in subclause 11(3) is 'not particularly unique', noting similar provisions which require persons appointed to the Family Court to be, by reason of training and experience, suitable to deal with matters

of family law.31

28 Submission 13, p. 9.

29 Response to questions on notice, provided on 24 September 2012, p. 2.

30 Response to questions on notice, provided on 24 September 2012, p. 3.

31 Air Commodore Paul Cronan AM, Department of Defence, Committee Hansard, 14 September 2012, p. 52 (referring to subsection 22(1) of the Family Law Act 1975).

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Pool of suitable candidates

3.22 Some submissions and witnesses pointed to the limited number of potential appointees to the Military Court with operational experience within the ADF. For example, Mr Paul Willee QC from the Law Council of Australia estimated that there are currently 'about four' judicial officers who would meet the current qualifications for the Military Court.32 Mr David McLure also commented on the

service experience of potential appointees to the Military Court and their capacity to conduct the trials of service offences:

[T]he reality is that there will be veiy few candidates for judicial appointment who have had recent command experience and fewer still with operational experience. To say so does not cast any doubt on the skills or dedication of the judicial officer who might be appointed to the

[Military Court], Rather, it is submitted that a system in which military officers participate in the trial of serious offences with the assistance of a legally qualified judge is likely to be a better one, both in terms of the accuracy of decision-making and the credibility of such decisions in the perception of the public and members of the ADF. *3

3.23 Associate Professor Matthew Groves suggested that the problem may not be the requirements for appointees to the Military Court, but 'the number of people who have enough legal experience and qualifications to be a judge and also have this same [service] experience':

I think the key problem here is we are beyond the time when military service is all that common. So I think to some extent the bill requires two areas of expertise that are so rare that the numbers will be small.34

3.24 On the other hand, the Chief of the Defence Force expressed confidence in the availability of suitable candidates for appointment to the Military Court:

If we look inside the Australian Defence Force at the present time I believe there is [a] pool that we could draw from in the short to medium term. We have over 500 full-time and part-time legal officers in the ADF as the base to be looking at for the future. I agree it will be necessary to work through and develop what that experience might be and what practical measures we can put in place to help in that selection process, and develop the

understanding of members in the broader activities and operations of the ADF.35

32 Committee Hansard, 14 September 2012, p. 13.

33 Sabmission 11, p. 11.

34 Committee Hansard, 14 September 2012, p. 25.

35 Committee Hansard, 14 September 2012, p. 51.

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3.25 Professor John Williams also made the point that judicial officers in other courts are regularly expected to adapt to new subject matter:

All the time, judicial officers deal with drug cases, bankruptcy cases and family law cases. That does not mean they were involved in any of those things before, but they bring skills to the area. I am more relaxed about that provision being opened up to a wider pool of judicial officers. Training in those areas can be provided, and judges deal with cases time after time where they may not even have been in practice in that area, or the cases come to them just by dint of being the next judge on the docket.36

Departmental response

3.26 The Attorney-General's Department informed the committee that:

It will be a matter for the Government to decide the number of judicial appointments based on the anticipated workload of the Military Court...Dual commissions may be offered to existing federal court judges and Federal Magistrates who have experience and knowledge of the nature of service in the [ADF] to provide flexibility in management of military caseload (cl 12). This would include the position of Chief Justice of the Military Court.37 38

Exclusion o f ADF members

3.27 Subclause 11(4) of the Military Court Bill provides that a person must not be appointed to the Military Court if he or she is a member of the ADF. The EM to the Military Court Bill notes that subclause 11(4) 'ensures the independence and

impartiality of the Military Court by providing that persons currently serving in the ADF would not be eligible for appointment'.18 Further amendments contained in the Consequential Amendments Bill provide that, once appointed, Military Court judicial

officers will no longer be eligible to enlist into the ADF.39 At the public hearing, officers from the Attorney-General's Department explained that subclause 11(4) is a 'requirement of independence for a chapter III court' and that 'the provision is there as a consequence of a policy decision'.40

36 Committee Hansard, 14 September 2012, p. 24.

37 Submission 15, p. 2.

38 EM, Military Court Bill, p. 13.

39 EM, Consequential Amendment Bill, p. 94.

40 Ms Margaret Meibusch, Attorney-General's Department, Committee Hansard, 14 September 2012, p. 44; Mr David Fredericks, Attorney-General's Department, Committee Hansard, 14 September 2012, p. 46.

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3.28 The ADA described the requirement in subclause 11(4) as 'unworkable in practice' and argued that '[m]embers of the ADF are the candidates for appointment likely to be most familiar with the subject matter and may be the only suitable candidates'.41 Further:

The drafting of this section does not appear to reflect actual knowledge or appreciation of who a member of the ADF actually is. Legally they include permanent (full-time) members and (part-time) reservists of all kinds. The latter include standby reservists who continue to serve for a mandatory period of at least five years following permanent or active reserve service

(although having no training or continuing service obligation unless reactivated).

[I]t is not easy for a serving member to formally or practically leave the ADF, although many assume they have effectively done so when they become standby reserve members...It would be most unfortunate if the practical effect is that commissioned officers, even standby reservists, have to seek to resign their commissions.42

3.29 Mr Neil James from the ADA also pointed out that any amendments to the legislation to allow a reservist to be appointed to the Military Court 'would inevitably provoke an appeal - that they were not an independent judge under the meaning of chapter III'.43

3.30 At the public hearing, the Chief of the Defence Force, confirmed that subclause 11(4) would include reserve force members and that a member of the ADF would need to resign their commission completely before being eligible for appointment to the Military Court44

Exclusion of state judicial officers

3.31 Subclause 12(1) provides that a person may be both a judge of the

Military Court and a judge of another court 'created by the Parliament'. The ADA suggested that this wording would result in the Military Court comprising 'Federal Court Judges cross-appointed as Military Court Judges'. The ADA contended that,

while 'former State judges and magistrates would be eligible to be appointed to the proposed [Military Court], it seems very unlikely that a State judge in particular would resign that State commission in order to do so'. It also outlined the large role that state judicial officers play in the ADF, and consequently described the 'effective' exclusion of state judicial officers for appointment to the Military Court as 'idiocy'.45

41 Submission 13, p. 9.

42 Submission 13, pp 9-10.

43 Committee Hansard, 14 September 2012, p. 8.

44 Committee Hansard, 14 September 2012, pp 44, 51-52.

45 Submission 13, pp 11-12.

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Departmental response

3.32 The Attorney-General's Department provided the committee with a response to a question on notice regarding this issue:

Clause 12(1) of the Military Court of Australia Bill is intended to allow for the possibility of dual appointments to the Military Court and other federal courts. The number of cases heard in the military court is likely to be small (50-100 cases per year heard in the General Division by

Federal Magistrates and less than 10 cases in the Appellate and Superior Division). Dual commissions will provide for flexibility in the management of the military caseload.

The Bill is silent on the issue of appointment of serving state or territory judges to the Military Court. The appointment of serving state or territory judges to the Military Court would raise practical and operational issues in terms of state and territory court responsibilities of those judges. These

issues would need to be dealt with through agreements between relevant heads of jurisdiction regarding work arrangements as well as legislative changes to deal with remuneration.46

Interaction between military and civilian justice systems

3.33 The Defence Force Discipline Act complements, and does not replace, the civilian criminal law in force in Australia applicable to defence personnel.47 Currently, section 63 of the Defence Force Discipline Act provides that proceedings may only be instituted in a service tribunal for certain offences with the consent of the Commonwealth Director of Public Prosecutions. The EM to the Consequential Amendments Bill notes that following the establishment of the Military Court:

Section 63 of the Defence Force Discipline Act 1982 will continue to require the Director of Military Prosecutions (DMP) to obtain the consent of the Commonwealth Director of Public Prosecutions (CDPP) prior to prosecuting certain serious service offences with criminal law equivalents

(such as murder, rape, assault) committed in Australia. The Memorandum of Understanding between the Australian Directors of Public Prosecutions and Director of Military Prosecutions is the cooperative arrangement which operationalises the section 63 statutory requirement for CDPP consent and facilitates cooperation and consultation between the Australian Directors of Public Prosecutions and the DMP, particularly where the military discipline

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46 Response to questions on notice, provided on 24 September 2012, pp 7-8.

47 Previously a section existed within the Defence Force Discipline Act which attempted to oust the jurisdiction of a civilian court where an accused had been tried for an offence under the military justice system. This was found by the High Court to be unconstitutional in Re Tracey; Ex parte Ryan (1989) 166 CLR 518; see also, Ms Gabrielle Appleby and Professor John Williams, Submission 3, p. 3; Air Commodore Paul Cron an AM, Department of Defence, Committee Hansard, 14 September 2012, p. 53.

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and criminal law jurisdictions overlap. The Memorandum of Understanding will continue to operate.48

3.34 During the inquiry, some witnesses and submitters commented on the potential interaction between the military and civilian justice systems. For example, the Law Council of Australia highlighted the 'potential for charges to be referred to a civilian court, which.. .raises questions about consistency for those who might be dealt with under any one of three separate judicial constructs in respect of the same charge'.49 In their submission, Ms Appleby and Professor Williams noted that the High Court has made clear that the Defence Force Discipline Act 'could not exclude the jurisdiction of the civilian courts'.50 However, Ms Appleby and Professor Williams pointed out:

While...in the vast majority of cases in practice, serious offences committed in Australia with a civilian equivalent will be tried in the civilian criminal jurisdiction, we note that there is nothing in the consultation and approval process [between the DMP and the CDPP] that ensures this.51

Potential for 'double jeopardy'

3.35 Ms Appleby and Professor Williams also considered that a 'significant area of concern' under the service tribunal system is the possibility that an individual could be 'tried under both the military justice system and civilian criminal jurisdiction'. While arrangements between the Director of Military Prosecutions and the Commonwealth Director of Public Prosecutions have reduced the possibility of a 'double jeopardy' situation arising, they noted:

The creation of a Chapter III court to hear and determine service offences substantially meets these concerns more definitively. A conviction or acquittal by the new [Military Court] will, beyond any doubt, prevent any other Chapter III court from hearing the same matter, leaving the potential for confusion only where a Defence Force member is tried by a service tribunal (that is, by a summary authority or, on rare occasions under the

new regime, by a court-martial or [defence force magistrate]).52

3.36 On the other hand, Mr David McLure considered that doubt could exist regarding whether a conviction in the Military Court would necessarily preclude a convict for the same offence by a civilian court:

[A]ll offences prosecuted under the Defence Force Discipline Act contain an element that will not be in the civilian offence *that is, that it was conduct engaged in by a defence member in some defence context that is to

48 EM, Consequential Amendments Bill, p. 4-5.

49 Submission 4, Attachment 1, p. 3.

50 Submission 3, p. 2, citing Re Tracey; Ex parte Ryan (1989) 166 CLR 518.

51 Submission 3, p. 4.

52 Submission 3, p. 5.

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attract the service jurisdiction. So the argument may be put that, because of that extra element, it is not the exact same offence.53 54

Departmental response

3.37 The Department of Defence, in a response to a question on notice, outlined that 'double jeopardy' concerns have not been a practical problem during the operation of the Defence Force Discipline Act, and agreed that any problems are 'likely only to be further reduced' if conviction or acquittals are imposed by the Chapter III court, as opposed to a service tribunal.34 However, the 'treatment by a civilian criminal court of a conviction or acquittal for a service offence is a matter for that civilian criminal court'; and the issue would depend on 'the actual charges which were prosecuted as

service offences, the offences charged in the relevant civilian criminal jurisdiction and the similarity of the conduct constituting both the service offence and the civilian criminal offence'.55

3.38 The Department of Defence explained that amendments to be made by the Consequential Amendments Bill would also strengthen protections against double jeopardy situations arising in the future:

Clause 190B makes it clear that a conviction for a service offence (other than a purely disciplinary service offence listed in Schedule 7) by the Military Court of Australia, a court martial or a Defence Force magistrate must be recorded as a conviction for a service offence and is a conviction for an offence against a law of the Commonwealth....

New clause 190A prevents prosecution of a service offence in respect of an act or omission, where the person has been acquitted or convicted of that service offence or a service offence similar to that service offence, in respect of that act or omission, or where the Military Court of Australia, or a court martial or Defence Force magistrate, has taken the service offence into consideration with respect to a person convicted of a service offence.

New clause 190A also prevents prosecution of a service offence where the service offence is substantially the same as a civil court or overseas offence of which the person has been acquitted or convicted.56

53 Committee Hansard, 14 September 2012, p. 31.

54 Response to questions on notice, provided 24 September 2012, p. 3.

55 Response to questions on notice, provided on 24 September 2012, p. 2.

56 Response to questions on notice, provided on 24 September 2012, p. 3. See also, Attorney-General's Department, response to questions on notice, provided on 24 September 2012, p. 3.

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Residual use of courts martial and defence force magistrates

3.39 The EM to the Consequential Amendments Bill notes that courts martial and defence force magistrates are maintained under the bills as a 'residual or backup system to be...used in rare instances where the Military Court determines that it is necessary, but not possible, for the Military Court to conduct a trial overseas'.57 The Chief of the Defence Force indicated that this means that the bills 'retain a fully deployable military justice capability, able to meet the needs of the ADF across the full spectrum of current and possible operational environments'.58

Dual military justice processes

3.40 Several concerns were raised in submissions regarding the potential problems created by dual military justice processes and retention of the expertise required to operate service tribunals within the ADF. For example, the Inspector General Australian Defence Force characterised the residual use of service tribunals as 'not ideal since it distracts from the ideal of systemic seamlessness'.59 He noted further:

While this may be a pragmatic solution, two issues have been raised...First is a concern that, on paper at least, members of the ADF will in certain circumstances be subject to parallel higher tribunal regimes, and second,

that this will necessitate measures to preserve expertise in conducting courts martial for what may well be few occasions of actual need. Of course, should such a need arise, 'just-in-time' training may not be ideal.60

3.41 Similarly, the Law Council of Australia in its commentary on the draft bills stated:

The expectation is clearly that Courts Martial will be rarely used. This may lead to circumstances where there are very few officers with experience of Courts Martial, meaning few if any officers will understand how to mount one, much less conduct one.

It also appears that replacement of the Courts Martial system with a Chapter III court is a repudiation of the former model as inferior. Accordingly, any person who is subject to Court Martial may have due cause for complaint that they have been subjected to a second-rate judicial process.61

3.42 The RSL provided the committee with its submission relating to the Military Court of Australia Bill 2010 (which also proposed the residual use of courts martial

57 EM, Consequential Amendments Bill, p. 2.

58 Submission 9, p. 2.

59 Committee Hansard, 14 September 2012, p. 33.

60 Submission 8, p. 2.

61 Submission 4, Attachment 1, pp 2-3; also see Mr Paul Willee QC, Law Council of Australia, Committee Hansard, 14 September 2012, p. 12.

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and defence force magistrates). The RSL submission characterised this as a '"two-tier" system of military justice' established without compelling reasons, and pointed to the Joint Committee's 1999 report on military justice which outlined the problems associated with establishing two systems of military discipline.62 The RSL noted that 'the same offence that warrants trial by one Military Court judge...will, in certain circumstances, attract a trial by a Court Martial comprised of at least 5 or 3 members if the back-up system needs to be implemented'.63

Overseas deployment of the Military Court

3.43 The justifications for the deployability of the Military Court and the residual use of courts martial and defence force magistrates were also questioned. Associate Professor Alison Duxbury, Dr Rain Liivoja and Associate Professor Matthew Groves suggested that it is unlikely that the residual role of courts martial would be regularly used. They noted that, currently, courts martial seldom sit overseas and more serious offences can be dealt with more effectively and quickly in Australia. Further, they submitted that 'the need to sit overseas for the purposes of examining witnesses is now considerably mitigated by the availability of video-conferencing facilities' which the Military Court would be able to utilise.64 Mr Alexander Street SC also contended:

The argument advanced as the need for deployability of Military Courts is utterly without substance in peacetime...[I]t is a gossamer thin proposition of any such need, even in wartime, given modem transportation and communication, as well as practical realities that constrict deployment of

non-combat personnel into a war zone.65

3.44 In contrast, Mr Paul Willee QC from the Law Council of Australia pointed out that there are many possible situations where the Military Court would determine it is not possible to sit outside of Australia.66 In his view, it would be unwise for the

legislation 'to spell this out beyond what the legislation now provides':

[This situation] might occur because of the normal exigencies of the service, or operational difficulties and dangers, or simply because a sovereign state in which operations are permitted...objects on the grounds of sovereignty to another country's court sitting [in their

jurisdiction]...There are so many of such exigencies that the legislation could not contemplate let alone deal with them all.67

62 Submission 5, pp 11, 15.

63 Submission 5, p. 11.

64 Submission 6, p. 4.

65 Submission 2, p. 8.

66 Response to questions on notice, provided on 19 September 2012, p. 1.

67 Response to questions on notice, provided on 19 September 2012, p. 1.

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Departmental response

3.45 At the public hearing, a representative from the Department of Defence emphasised that, despite the provisions for the residual use of courts martial and defence force magistrates overseas, the vast majority of military disciplinary matters will be heard in Australia. The representative noted that a court martial has not been held overseas since 2006, because, for example, the accused and witnesses are often located in Australia at the time of trial.68

3.46 In a response to a question on notice, the Attorney-General's Department elaborated on this point:

It is expected that most cases would be heard by the Military Court sitting in Australia. If the Court determines that it is necessary to sit outside Australia, the Court will also need to determine whether it is possible to sit outside Australia having regard to the circumstances set out in clause 51(4) ie security consideration, any relevant Australian or foreign laws, and any relevant international agreements that may be in place between Australia and that country.

It is important that the courts martial and Defence Force magistrate system can be used as a fail-back option to ensure the maintenance of discipline in the Australian Defence Force when the trial of a service offence needs to take place overseas and the Military Court of Australia is unable to sit in that overseas place. If Australian jurisdiction under the Defence Force Discipline Act 1982 was not able to be exercised, accused persons may be

subject to the jurisdiction of foreign nations or international tribunals.69

3.47 In relation to the residual use of courts martial and defence force magistrates, the Attorney-General *s Department outlined a number of steps which are being, or will be, undertaken to retain service tribunal training and expertise within the ranks of the ADF. Specifically, it pointed out that 'Defence accepts that it must be pro-active in

developing policy, training and ensuring suitable appointments are made so that the expertise in courts-martial and Defence Force magistrate trials is retained at an appropriate level for use in the residual system of trials'.70

68 Air Commodore Paul Cronan AM, Department of Defence, Committee Hansard, 14 September 2012, p. 47.

69 Response to question on notice, provided on 24 September 2012, p. 7.

70 Response to questions on notice, provided on 24 September 2012, p. 5.

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Appeals from the Military Court of Australia

3.48 Mr Alexander Street SC raised a number of issues with the committee regarding appeals from the Military Court, which were directly addressed by the Attorney-General's Department and the Department of Defence.

Appeals

3.49 Clause 113 of the Military Court Bill provides for a number of restrictions on appeals to the High Court from certain decisions of the Military Court. The EM to the Military Court Bill notes that the 'restricted nature of appeals to the High Court emphasises the role that the Military Court will have as the exponent of military law'.71 However, Mr Street argued:

The constraints on appeals to the High Court of Australia do not reflect the appellate structure of s73 of the Constitution and the supremacy of the rule of law. This attempted constriction of the ability to appeal to the High Court of Australia is likely to be the cause of injustice and, in any event, will in

my opinion be held to be Constitutionally invalid.72

3.50 Mr Street also considered that the 'Full Court of the Federal Court is the proper repository of judicial power of the Commonwealth to hear appeals from the Military Court of Australia', and noted that the Full Court of the Federal Court

currently hears appeals from the Defence Force Discipline Appeals Tribunal.73 He asserted that 'the way the Military Court Bill is currently drawn, a matter could be heard by the Full Court without any further appellate right' and that this 'would be contrary to Article 14 of the [ICCPR] that provides "Everyone convicted of a crime

shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law"'.74

Departmental response

3.51 The Attorney-General's Department informed the committee that the limitations on appeals from the Military Court to the High Court are modelled on similar limitations for appeals from the Federal Court:

Section 73 of the Constitution makes provision for Parliament to legislate for regulations and exceptions in relation to appeals to the High Court. These limitations are provided to ensure the efficient administration of justice. For example, the restriction on the right to appeal over a limited number of interlocutory decisions, which involve minor procedural matters, will reduce delays caused by appeals from these decisions. The requirement

71 EM, Military Court Bill, p. 50.

72 Submission 2, p. 12.

73 Submission 2, p. 10.

74 Submission 2, p. 11.

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for special leave before certain appeals may be brought before the High Court has operated since 1976, and ensures that the High Court selects appropriate matters for determination by Australia's final appellate tribunal.75

3.52 The Attorney-General's Department also advised:

Like the Federal Court of Australia, the Military Court of Australia will be a superior court of record...In light of the status of the Military Court as a superior court of record, it is not necessary or appropriate for the Federal Court of Australia to hear appeals from the Military Court of Australia. The approach in the Bills is consistent with the approach for the Family Court of Australia, which is also a superior court of record. Appeals from the Family Court of Australia are not heard by the Federal Court of Australia.76

Costs

3.53 Clause 109 provides that the Military Court may, if it considers it appropriate, allocate costs in the case of appeals by accused persons or appeals by the Director of Military Prosecutions. The Law Council of Australia indicated that this is one of a number of amendments to the draft legislation based on feedback provided to the Attorney-General.77 In its commentary on the draft legislation, the Law Council of Australia submitted that 'preventing the Military Court from making cost orders is out of step with civilian courts' as 'there is little provision made for those who may.. .choose a civilian lawyer to represent them in the Chapter III environment'.78

3.54 However, Mr Street emphasised that, in the Court of Criminal Appeal, no adverse orders as to costs are made against an accused person appealing conviction and sentence. He considered clause 109 to be an 'inappropriate provision except

insofar as it might provide for a power to order costs against the [Director of Military Prosecutions]'.79

Departmental response

3.55 In a response to a question on notice, the Department of Defence

acknowledged that there is a potential for the Military Court to award costs against an accused who had not appealed a decision, but emphasised that the Director of Military Prosecutions can only appeal decisions in 'limited circumstances'.80 The department commented that the 'discretion of the Military Court...to award costs is in keeping

75 Response to questions on notice, provided on 24 September 2012, p. 4.

76 Response to questions on notice, provided on 24 September 2012, pp 3-4.

77 Submission 4, p. 1.

78 Submission 4, Attachment 1, p. 4.

79 Submission 2, p. 11.

80 Response to questions on notice, provided on 24 September 2012, p. 1.

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with the power of civilian courts, including other Chapter III courts, to make costs orders'. Accordingly:

It is appropriate...for the Court to have power to award costs against the respondent in a prosecution appeal, for use in the rare circumstances where the conduct of the defence at trial or the respondent's case on appeal has unnecessarily lengthened the hearing of the trial or the appeal, particularly if there has been a failure on the part of counsel for the accused or the respondent to disclose material required to be disclosed (e.g. alibi evidence) or to comply with an interlocutory or other order of the Court.81

Allowing appeals

3.56 Subclause 105(1) provides that the Military Court must allow an appeal from a judgement convicting an accused person if satisfied: (a) that the judgement should be set aside on the ground of a wrong decision of any question of law; or (b) that there has been a substantial miscarriage of justice. Mr Street considered that this power to appeal against a conviction is too narrow and should be expanded to reflect the broader scope of grounds for appeal which currently exists in section 23 of the Defence Force Discipline Appeals Act 1995. He also suggested that this broader scope of grounds to appeal to the Military Court should be extended to the residual use of courts martial and defence force magistrates.82

Departmental response

3.57 The EM to the Military Court Bill notes that this clause is modelled on an existing section of the Federal Court of Australia Act 1976 regarding when the court is to allow appeals.83 The Attorney-General's Department explained that the 'grounds for appeal in the Military Court are broadly consistent with the appellate systems of other federal courts'. It highlighted that the Military Court could also allow an appeal against a sentence if satisfied that some other sentence is warranted in law, or if satisfied that it is in the interests of justice to do so.84

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81 Response to questions on notice, provided on 24 September 2012, p. 1.

82 Submission 2, pp 12-13.

83 EM, Military Court Bill, p. 47.

84 Submission 15, p. 4, referring to subclauses 105(3) and 105(4) of the Military Court Bill.

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CHAPTER 4

Trial by jury

4.1 A key issue raised by the majority of witnesses and submissions was the effect of clause 64 of the Military Court Bill. Clause 64 provides that all charges of services offences are to be dealt with otherwise than on indictment.1 These witnesses and submissions highlighted that clause 64 would effectively circumvent the protection in section 80 of the Constitution for trial by jury for indictable offences.1 2 Witnesses and submissions outlined their concerns regarding the constitutional validity of this proposed arrangement and its fairness for those accused of service offences.

4.2 In her Second Reading Speech, the Attorney-General outlined two reasons for not including the option of trial by jury in the Military Court Bill:

First, service offences are created for the purpose of maintaining discipline in the ADF. The military justice system complements and does not replace the criminal law in force in Australia, and so need not mirror the civilian court process. However, when ADF personnel commit criminal offences within Australia, they will continue to be tried by jury within the civilian criminal law system. Second, where there is need to try a service offence overseas, a requirement to empanel a civilian jury would create significant practical barriers to the prosecution of offences.3

4.3 The Attorney-General also noted that the High Court 'has held that it is for parliament to decide which offences are to be tried on indictment and which can be tried other than on indictment'.4

1 See, for example, Mr Alexander Street SC, Submission 2, p. 3; Ms Gabrielle Appleby and Professor John Williams, Submission 3, pp 4-5; Law Council of Australia, Submission 4, p. 2; Returned and Services League, Submission 5, p. 1; Associate Professor Alison Duxbury, Dr Rain Liivoja and Associate Professor Matthew Groves, Submission 6, pp 4-5; Inspector General Australian Defence Force, Submission 8, pp 1-2.

2 See Associate Professor Alison Duxbury, Dr Rain Liivoja and Associate Professor Matthew Groves, Submission 6, p. 4; Law Council of Australia, Submission 4, Attachment 1, p. 2; Returned and Services League of Australia, Submission 5, p. 1.

3 House of Representatives Hansard , 21 June 2012, p. 7414.

4 House of Representatives Hansard , 21 June 2012, p. 7414.

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Constitutional issues

4.4 Section 80 of the Constitution provides:

The trial on indictment of any offence against any law of the

Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

4.5 In 1928, in the case of R v Archdallthe High Court held that the parliament was not required to lay down an indictment procedure for an offence which carried a penalty of one year's imprisonment. In that case, Justice Higgins stated that 'if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment'.5 6 Later High Court decisions have continued to apply this narrow interpretation of section 80 of the Constitution, however there have also been strong dissenting judgements made by High Court justices to this approach. In White v Director of Military Prosecutions , Justice Kirby noted that a 'persistent minority' had rejected 'this view as inconsistent with the function of [section 80] as providing a guarantee of jury trial which could not so easily be circumvented':

I favour what is presently the minority view. It is more harmonious with the language, constitutional context, purpose and function of the section. The contrary view renders trial by jury for the applicable federal offences optional in the hands of the very governmental agencies against whom jury trials can be a precious protection for the individual. That cannot be the meaning of the Constitution ,7

4.6 Associate Professor Alison Duxbury, Dr Rain Liivoja and Associate Professor Matthew Groves pointed out that clause 64 of the Military Court Bill touches on a wider tension in constitutional law:

On the one hand, several members of the High Court recently stated that a useful starting point for questions about the constitutional validity of the military discipline system was the assumption that members of the military retained the nonnal rights and obligations of civilians. On the other hand, s 80 [of the Constitution] is currently regarded as a very weak right. The High Court has held that the Commonwealth Parliament can effectively circumvent s 80 by specifying that the trial of an offence (however serious) is not to be on indictment.8

5 (1928)41 CLR 128.

6 (1928)41 CLR 128 at 139.

7 (2007)231 CLR 570.

8 Submission 6, p. 4.

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4.7 Several submissions noted that the current interpretation of section 80 of the Constitution has been subject to criticism because it enables the parliament to circumvent a fundamental constitutional protection. These submissions also highlighted the 'persistent minority' view within the High Court.9

4.8 For example, Mr Alexander Street SC provided the committee with his analysis of High Court decisions made in relation to section 80 of the Constitution.10 11 Mr Street concluded that, in his opinion, the current interpretation of section 80 of the Constitution is based on 'unpersuasive and substantially unreasoned early High Court of Australia authority arising from legislation not consistent with the standards of our modem multicultural society'.11 In particular:

To try and define discipline offences that give rise to exposure to imprisonment in excess of two years as not indictable offences within s80 is, in my opinion, bound to be held invalid. The Constitution is not a frozen fossil in the principles of interpretation.12

4.9 Mr Street also pointed out that section 73 of the Constitution creates an integrated court system, with the High Court at the apex, and that a Chapter III military court would sit within that system. He noted that 'it is very important to understand that there are significant advantages and protections which give rise to greater transparency, greater accountability and consequently...greater acceptability and greater confidence if one takes this step forward towards creating a chapter III court'.13

4.10 Some submissions also foreshadowed the circumvention of section 80 of the Constitution by clause 64 of the Military Court Bill as a likely basis for a

constitutional challenge. For example, Associate Professor Duxbury, Dr Liivoja and Associate Professor Groves submitted:

If this issue is not corrected, the trial of very serious offences in a military court without the use of an indictment (and the associated right to a trial by jury) could provide a tempting vehicle for the High Court to reconsider the arguably literal interpretation [of section 80 of the Constitution] that

currently prevails. If the High Court approached the question as one of substance rather than form, the trial of very serious offences in military

9 See Associate Professor Alison Duxbury, Dr Rain Liivoja and Associate Professor Matthew Groves, Submission 6, p. 5; Returned and Services League of Australia, Submission 5, p. 7, quoting Justice Kirby in White v Director of Militaiy Prosecutions (2007) HCA 29 at 167; Mr Alexander Street SC, Submission 2, Appendix 1, pp 14-21.

10 Submission 2 , Appendix 1, pp 14-21.

11 Submission 2, p. 7.

12 Submission 2, p. 7.

13 Committee Hansard, 14 September 2012, p. 16.

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courts could be contrary to s 80. Put simply, it could be argued that such offences are an impermissible evasion of s 80.14 15

4.11 The academics went on contend that a 'separate but logically related point' is that, if the Military Court of Australia fully complies with the requirements of Chapter III of the Constitution, then it may be argued that 'the apparent evasion of s 80 essentially threatens the institutional integrity of the Military Court of Australia, which is incompatible with its status as a Chapter III court'.13 At the hearing, Associate Professor Groves commented:

[T]he High Court could look at the provision which deems offences not to be ones of indictment. The High Court could...say, *Just because you say they are not does not mean in constitutional terms that we think otherwise.1 The decision of the High Court in Lane v Morrison and also its recent migration decisions emphatically make the point that the words of the legislature are one thing; their constitutional meaning is quite another. And it is the second issue which is the province of the High Court and the High Court alone.16

Departmental response

4.12 At the public hearing, an officer from the Attorney-General's Department highlighted that the approach taken in the bills is consistent with the legal advice the government has received and follows a long line of High Court authority:

Some of the [witnesses appearing before the committee have] referenced the fact that there have been dissents in the past which have been quite powerful, but they consistently have been dissents. From our perspective we think it is a fairly settled area of law that it is for the parliament to decide what indictable offences are and hence trigger the need for a jury. In this particular case, the government has decided as a policy decision that they are not to be indictable offences.17

14 Submission 6, p. 5.

15 Submission 6, p. 5. See also: Mr Alexander Street SC, Submission 2, p. 4; Returned and Services League of Australia, Submission 5, p. 16.

16 Committee Hansard, 14 September 2012, p. 22.

17 Dr Albin Smrdel, Attorney-General's Department. Committee Hansard, 14 September 2012, p. 41.

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Serious offences

4.13 The EM to the Military Court Bill emphasises that the Defence Force Discipline Act complements, and does not replace, the criminal law in force in Australia:

If conduct is to be prosecuted as a criminal office, service personnel, like civilian citizens, will be afforded a trial by jury if prosecution is of a criminal offence by a civilian Director of Public Prosecutions on indictment.IS

4.14 However, a number of submissions pointed to the seriousness of the offences that will be dealt with by the Military Court and argued that this factor means that trial by jury should be available to defendants. Others considered that the lack of trial by jury before the Military Court for serious service offences means that the existing system of service tribunals should be maintained. For example, the Law Council of Australia argued that 'given the serious offences considered by the Military Court and the capacity for the Military Court to impose sentences of life imprisonment, trial by peers should not be abrogated'.18 19 The Australia Defence Association also noted that the provisions of the Military Court Bill would mean that 'a judge, sitting alone without a jury (or court martial board), will be empowered to sentence offenders up to and including life imprisonment'.20

4.15 Mr David McLure listed the serious offences which could be dealt with by a single judge of the Military Court:

A single judge of the [Military Court] will have the power to try members of the ADF for a number of [Defence Force Discipline Act] offences punishable by life imprisonment, such as s 15B aiding the enemy whilst captured, s 15C providing the enemy with material assistance, s 16B offence committed with intent to assist the enemy and s 20 mutiny. No civilian court will have the jurisdiction to deal with those offences. Additionally, a single judge of the [Military Court] will have the power to try civilian offences picked up by [Defence Force Discipline Act] s 61 which are also punishable by life imprisonment, such as murder (Climes Act 1900 (ACT) s 12) and numerous offences in the Criminal Code

1995 (Cth).21

4.16 The Returned and Services League of Australia (RSL) provided the committee with its commentary on the 2010 legislation, which also did not treat service offences before the proposed Military Court as indictable offences. The RSL noted that nothing in any other areas of the law 'in any way discriminates members of

18 EM, Military Court Bill, p. 29.

19 Submission 4, p. 2.

20 Submission 13, p. 7.

21 Submission 11, p. 3.

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the [ADF] from other Australians in so far as their rights as citizens are concerned'.72 Further:

In denying trial on indictment of any offence, more particularly a serious service offence, the legislation denies trial by jury of a kind envisaged in s.80 [of the Constitution], In doing so, the [Military Court Bill] denies the service member the protection of a jury trial for the determination of charges of serious offences carrying on conviction penalties of potentially lengthy terms. The service member is denied the "protection" from having his/her guilt or innocence being determined by judge sitting alone.22 23

4.17 At the public hearing, Mr Street characterised the establishment of the Military Court as a change from an 'analogue' military discipline system to a 'digital' military justice system.24 Mr Street drew a distinction between offences tried before a Chapter III court and those heard within the military discipline system:

Defence will always have to maintain a discipline system within the command structure; it is essential. That discipline system within the command structure is fundamental to the most important active duty in a war zone environment. In those circumstances, discipline in the field is something that command exercises every day. But command discipline is something quite different from what a court can do. A court does not exercise discipline. A court created under chapter III will resolve controversies...[and, in effect] criminal matters. That is a material difference in understanding the function being performed.25

4.18 Further, Mr Street argued that the Military Court 'does need a jury if you are going to give it, as it is currently proposed, the power to hear charges that, on their nature, are ones which have all the hallmarks of being indictable offences because then you are materially impacting on the rights that [accused persons] would otherwise have had in respect of those criminal offences'.26

Departmental response

4.19 The Attorney-General's Department highlighted the distinction between civilian criminal offences and the service offences which the Military Court would deal with:

Service offences are complementary to, and do not replace, the criminal laws in force in Australia. The Military Court has jurisdiction to hear service offences only. There are some instances where a service offence may be seen to be similar to a civilian criminal offence. However, this does

22 Submission 5, p. 5.

23 Submission 5, p. 6.

24 Committee Hansard, 14 September 2012, p. 16.

25 Committee Hansard, 14 September 2012, p. 17.

26 Committee Hansard, 14 September 2012, p. 18.

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not mean that serious service offences should be tried in an identical way to criminal offences without recognising the unique purpose of service offences to substantially serve the purpose of maintaining or enforcing service discipline.27

4.20 The Attorney-General's Department also advised that the 'establishment of the Military Court is not intended to change the essential nature of the military justice system':

The 2005 report of the Foreign Affairs, Defence and Trade Committee described the military justice system as including the discipline system (dealing with offences under the [Defence Force Discipline Act]) and the administrative system (dealing with matters affecting administration, command and control). To describe a distinction between the Court dispensing military justice and commend dispensing military discipline does not take into account administrative law mechanisms which are also part of the broader military justice system.

The discipline system within which the Military Court would be established, is, and will continue to be, a single system to deal with service offences which are created for the essential purpose of maintaining and enforcing service discipline.28

4.21 The Attorney-General's Department also noted the importance of the Military Court's capacity to prosecute serious offences committed by defence personnel overseas:

The Military Court will have jurisdiction in relation to serious service offences committed outside Australia by Australian Defence Force members. It is important for a military justice system to be capable of operating effectively overseas where required as well as in Australia. Other Australian courts have limited jurisdiction over offences committed outside Australia. In situations where the Military Court decided that there is a need

to try service offences overseas, the requirement to empanel a civilian jury would impose significant practical barriers to the prosecution of service offences.29

27 Response to questions on notice, provided on 24 September 2012, pp 1-2.

28 Submission 15, p. 1.

29 Response to questions on notice, provided on 24 September 2012, p. 2.

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Civilian juries

4.22 The capability and merits of civilian juries were raised in relation to the Military Court, and particularly service offences. Some submissions to the inquiry drew attention to the statement in the EM to the Military Court Bill that 'a civilian

would not necessarily be familiar with the military context of service offences'.30 Several witnesses and submissions disputed this argument as a reason for excluding trial by jury in the Military Court. For example, Ms Gabrielle Appleby and Professor John Williams argued:

[The] criminal justice system asks a lot of juries, and they are often required to understand complex evidence, often provided by scientific and medical experts. It does not seem congruent with our acceptance that juries are able to understand this, to argue that they will not have, or not be able to gain, an understanding of the context of seivice offences.31

4.23 Similarly, Mr Street commented:

There is, in fact no military discipline offence so called, in my opinion, that a civilian criminal jury could not determine. Other than the prejudicial conduct offence under s60...any suggested requirement for specialist military discipline knowledge for the constitution of the jury is, with the greatest respect, a myth.32

4.24 The RSL also highlighted that the Australian general public includes 'hundreds of thousands' of men and women who have served in the armed forces:

Many thousands of ex-servicemen and ex-servicewomen would in the past, and continue to be associated with the jury system. In terms of so called military context of service offence issues, there would be tens of thousands who by reasons of service or training understand or are able to understand the nature of service in the ADF and relevant issues.33

4.25 However, Associate Professor Matthew Groves listed a number of factors which complicate the use of trial by jury in relation to the military justice system. In particular, he indicated that 'there is a tension between potential trial by jury, which protects people but necessarily delays things, on the one hand, and, on the other hand, the need for the military to sort things quickly'. Further, he noted that the criminal law distinction between summary and indictable offences does not translate to the military

30 EM, Military Court Bill, p. 2. See Ms Gabrielle Appleby and Professor John Williams, Submission 3, pp 4-5; Associate Professor Alison Duxbury, Dr Rain Liivoja, Associate Professor Matthew Groves, Submission 6, pp 2-3.

31 Submission 3, p. 5. See also: Professor John Williams, Committee Hansard, 14 September 2012, pp 21-22; Returned and Services League of Australia, Submission 5, p. 17.

32 Submission 2, pp 8-9.

33 Submission 5, p. 17.

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context and 'most people would agree that a civilian jury would be particularly ill-equipped to assess that particular context'.34

4.26 The importance of continued involvement by military officers, rather than civilian juries, in the trials of service offences was raised by several submitters and witnesses. Mr David McLure emphasised that the importance of 'the involvement of

military officers in the military trials' has been previously recognised in earlier reforms to the military justice system. He noted that the EM to the 2006 legislation creating the Australian Military Court accepted that 'knowledge and understanding of the military context and culture is essential'; and observed that 'one of the ways

[the previous Australian Military Court] system sought to engender credibility with, and acceptance of, the Defence Force was to involve military juries in the determination of serious offences'.3" Mr McLure concluded that the 'reality is that the [currently proposed Military Court] will be viewed by many if not most members of the ADF as an externally imposed system in a way that the court martial and [defence force magistrate] system is not'.36

4.27 In contrast, Professor John Williams observed that civilian juries could also serve to provide an additional function for the Military Court by contributing to civilian oversight of the military. He stated that 'civilian oversight, input and moderation in the area of the criminal justice system or the military justice system is also something in this context we should be alive to'.37

4.28 At the hearing, the Chief of the Defence Force advised that the proposed bills remain faithful to the Senate Foreign Affairs, Defence and Trade Committee's 2005 report on military justice. He noted that the 2005 report 'was silent as to the requirement for juries' and that this 'implied that chapter III judges would be the trier of fact and law' in the Military Court.38 Further:

Civilian and military juries and legal advice were considered along with a number of models when we worked with the Attorney-General's Department [on the development of the bills]. Only the model proposed provides the following: that the trier will understand the nature of service in the ADF; that it is a constitutionally guaranteed independence and impartiality; and written reasons for both verdict and sentence will be provided.39

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34 Committee Hansard, 14 September 2012, pp 23-24.

35 Submission 11, p. 8.

36 Submission 11, p. 10.

37 Committee Hansard, 14 September 2012, p. 21.

38 Committee Hansard, 14 September 2012, p. 40.

39 Committee Hansard, 14 September 2012, p. 40.

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4.29 An officer from the Department of Defence also emphasised the unique character of service offences in relation to civilian juries:

Our view would be that a judge that meets the qualifications in the bill is better placed to understand the nature of service offending than a civilian jury. Service offences are not criminal offences. It is not a criminal jurisdiction like you would see in the civilian world. There is a range of

service offences, such as disobeying a lawful command, disobeying a lawful general order and assault on a superior officer, that have a very strong discipline nexus to them that perhaps would not be readily apparent to a civilian jury...[T]he best way to address that issue is to have a judicial figure who is independent, who has the requisite training experience and who understands the nature of service offending *this is the best adjudicator of fact in the circumstances^0

Consistency with service tribunal system

4.30 The consistency of the proposed Military Court with the previous service tribunal system, particularly courts martial, was raised. A number of submissions took issue with the characterisation of service offences being tried without a jury, as articulated in the EM to the Military Court Bill, as being 'consistent with the current determination of service offences under the [Defence Force Discipline Act], which also does not provide for a trial by civilian jury'.40 41 For example, the Law Council of Australia noted that general and restricted courts martial guarantee all servicemen and women the right to a trial by their fellow ADF officers.42

4.31 Similarly, Mr Alister Abadee commented that 'experience has long shown the value and efficacy of a system of courts-martial to act as a quasi-disciplinary tribunal of peers in administering discipline for service offences'. He also noted that '[o]nce the power to discipline peers is taken away from a particular segment of the community

for whose protection it exists, and transferred to a civilian judge, it can cause great resentment'.43 Further:

Serving personnel are entitled to expect that the tribunal of fact...has a full understanding of the exigencies of service life and its operations...[T]he true test is at the pointy end of hard cases concerning purely service offences involving deadly operations in the fog of war. It is difficult to conceive that an accused charged with a disciplinary offence in that context would prefer to have his or her liberty...hang in the balance of a civilian judge with little real exposure to such activities.44

40 Air Commodore Paul Cronan AM, Department of Defence, Committee Hansard, 14 September 2012, p. 51.

41 EM, Military Court Bill, p. 29.

42 Submission 4, p. 2.

43 Submission 12, p. 2.

44 Submission 12, p. 2.

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4.32 Several submitters and witnesses argued that the roles played by members of a jury and members of a court martial panel are analogous in protecting the rights of the accused.45 For example, the Hon Alan Abadee AM RFD QC, representing the RSL, told the committee:

[Ojffences under the Defence Force Discipline Act when they are tried by a military tribunal, that tribunal, or more accurately the court martial panel itself, plays the role somewhat akin to the role played by a civilian jury of 12 in respect of ordinary criminal offences tried in the ordinary criminal courts. What happens is, in terms of fairness, that not one person determines sitting alone guilt or innocence, but rather the issue in respect of serious service offences is determined by a panel of not fewer than five in the case of a general court martial or not fewer than three in the case of a restricted court martial. Indeed, in many ways the procedure that is adopted in respect of the current court martial system is very much the criminal procedure that is adopted in respect of trial of offences against the ordinary civil law in tenns of the trial being conducted on indictment by an ordinary criminal court or civil court in Australia.

In terms of fairness in respect of an indictable offence, if I can use the expression, fairness is met very much by trials being conducted by 12 persons, multiple persons, acting together and reaching a unanimous decision.46

4.33 However, the Attorney-General's Department distinguished the role played by courts martial panels from that of civilian juries in criminal trials:

In the current court martial system, the role of the court martial panel is not akin to a jury but rather as superior officers in the chain of command reinforcing the service discipline aspect of a service offence. While a jury may be perceived as discharging a similar role, a jury would in effect be performing a role more consistent with its civilian criminal offence underpinnings, rather than reinforcing service discipline as a core element

of the military justice system.47

4.34 At the public hearing, Associate Professor Alison Duxbury noted that 'there are a number of countries who have civilian judges in their military justice systems because, of course, the military justice system is part of the civilian system'.48 Conversely, Mr David McLure argued that the Military Court Bill proposes a system 'out of step' with the civilian justice systems and the military justice systems of Australia's allies. He outlined that, with the establishment of the Military Court, Australia, in contrast to military justice systems in Canada, New Zealand, the United Kingdom and the United States, would be the only jurisdiction that 'limits the

45 For example, see Mr Paul Willee QC, Law Council of Australia, Committee Hansard, 14 September 2012, p. 11.

46 Committee Hansard, 14 September 2012, p. 5.

47 Response to questions on notice, provided on 24 September 2012, p. 1.

48 Committee Hansard, 14 September 2012, p. 25.

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trial of serious service offences to civilian judges without the option of a court martial panel or military jury'.49

4.35 Mr McLure also highlighted that the proposal to conduct trials for service offences without the involvement of military officers is not a policy decision:

Rather, as clause 10 of the Explanatory Memorandum (EM) makes clear, 'a jury in a Chapter III court could not be restricted to Defence members and a civilian [jury] would not necessarily be familiar with the military context of service offences'. It can be seen from this that the proposal to

conduct trials by a judge or federal magistrate sitting alone without a military jury or court martial panel is the price to be paid for the choice to establish the [Military Court] under Chapter III, based on the recognition that it would be inappropriate for a military court to be constituted by a civilian judge and civilian jury.50

4.36 At the public hearing, Mr McLure stated that 'while it is true that involving a civilian judge who is independent from the military does add a veneer of respectability and credibility to the decision making [process], because such decisions are clearly

not necessarily influenced by the desires of the military, what one loses at the expense of this is the experience that military officers and military judges can bring to bear'.51 Mr McLure argued that 'a system in which military officers participate in the trial of serious offences with the assistance of a legally qualified judge is likely to be a better one'.52 He recommended that if 'the Parliament is determined to establish a Chapter III court. ..it should explore constitutional reform in order to permit a jury solely made up of military officers'.53

4.37 The Australia Defence Association also disputed the policy justifications for the establishment of the Military Court without a right to trial by jury for serious service offences:

The exclusion of trial by jury stems directly and only from the arcane legal mechanics of establishing such a specialist jurisdiction as a court under Chapter III of the Constitution, rather than continue with courts martial as disciplinary tribunals under the defence heads of power. Both the unfairness and probable constitutional invalidity involved surely mean the whole concept of a Chapter III court specifically for our defence force should not proceed on this ground alone.54

49 Submission 11, pp 3-5.

50 Submission 11, p. 3.

51 Committee Hansard, 14 September 2012, p. 31.

52 Submission 11, p. 11.

53 Submission 11, p. 13.

54 Submission 13, p. 8.

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Reasons for judgement

4.38 At the public hearing, witnesses from the ADF emphasised that an advantage of the Military Court is that judicial officers would be required to provide reasons for judgement and decisions. In particular, the Chief of the Defence Force stated:

Importantly, juries do not provide reasons for decisions; judges do. Providing reasons for findings enhances the maintenance of service discipline and far better supports the proposed appeal system.55

4.39 In addition, an officer from the Department of Defence commented:

[I]f somebody understands why they have been convicted because the judge gave extensive reasons *and those reasons would obviously go to the nature of the service offending, the service offence and the context in which the service offending occurred *all that would be on the public record and all of that would feed back into our discipline system across the Australian Defence Force. You would in fact build up a system of military law, military jurisprudence, that would address those issues, the reasons why conviction has occurred and the reason for the offending. You do not get any of that with a simple 'guilty' or 'not guilty' by a civilian jury. So we see real benefits in terms of the jurisprudence that comes out of this and the understanding of the service offending that occurs, and in our ADF members understanding that as well. We actually see this as being something that is ahead of the jury system; it is a real plus for us in terms of the maintenance of service discipline.56

4.40 Similarly, the Inspector General Australian Defence Force, described the requirement for reasons to be given for judgements by the proposed Military Court as a 'welcome change which in practice should help in addressing the concerns of those

who are worried about the absence of a panel or jury equivalent in Military Court trials'.57

4.41 The Attorney-General's Department also advised:

Trial by a judge sitting alone means that service personnel will be provided with reasons for both conviction and sentence. This does not occur with current courts martial and would not occur with a jury trial. The provision of reasons provides greater transparency and fairness for service personnel, particularly in providing a clear basis for any appeal.58

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55 Committee Hansard, 14 September 2012, p. 41. See also: Mr David Fredericks, Attorney-General's Department, Committee Hansard, 14 September 2012, p. 39.

56 Air Commodore Paul Cronan AM, Department of Defence, Committee Hansard, 14 September 2012, p. 50.

57 Mr Geoff Earley AM, Inspector General Australian Defence Force, Committee Hansard, 14 September 2012, p. 33.

58 Response to questions on notice, provided on 24 September 2012, p. 2.

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4.42 However, in a joint submission made following the public hearing, Mr David McLure and Mr Alister Abadee disagreed with the suggestion that providing reasons for judgements is an advantage of the Military Court which could not also be provided by the existing service tribunals. They noted that, while in practice, 'court martial panels in Australia usually do not give reasons for their decisions', in their experience 'it is not uncommon for panels to make some comment when announcing their decision on punishment'.59 Mr McLure and Mr Abadee argued:

[I]t is clear that it is not necessary to abandon the existing system and create a Chapter III court in order to introduce a requirement that all decisions be supported by a statement of reasons. This could be achieved by a simple amendment to the [Defence Force Discipline Act], requiring court martial panels to give reasons.60

Committee view

4.43 The committee welcomes the establishment of the Military Court, which had its genesis in the Senate Foreign Affairs Defence and Trade References Committee's report in 2005 into Australia's military justice system. The proposed Military Court substantially accords with the recommendations of that report and the committee agrees with the following finding:

Service members should still retain the right to access independent and impartial tribunals for the determination of their guilt or innocence. Their decision to serve and defend Australia should not mean that they sacrifice the basic right to a fair trial possessed by every Australian citizen. Where the military purports to exercise jurisdiction over Service offences...this should only be done through a court created under Chapter III of the Commonwealth Constitution.61

4.44 The bills also make a number of other worthwhile reforms to Australia's military justice system. In particular, the committee notes that the bills will modernise the existing provisions relating to persons found unfit for trial or persons acquitted on the basis of mental impairment. These persons will now be dealt with similarly to persons within the civilian criminal justice system. The provision for the statutory recognition and independence of the Office of Director of Defence Counsel Services is also a significant improvement. The proposed amendments reflect a commitment to the protection of the rights of ADF members involved in the military justice system.

59 Submission 14, p. 2.

60 Submission 14, p. 3.

61 Senate Foreign Affairs, Defence and Trade References Committee, The effectiveness of Australia's military justice system, June 2005, p. 101.

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Appointment requirements and appeals

4.45 The committee acknowledges the concerns raised during the inquiry regarding the provisions for the appointment of judicial officers to the Military Court. In the view of the committee, these requirements strike the right balance between judicial independence and understanding of military service. In particular, the committee agrees that the appointment of serving ADF members or reservists to the Military Court would be inappropriate. Such a situation would risk a perception of a lack of independence and impartiality on the part of the court and, potentially, a constitutional challenge. Similarly, the appointment of serving state judicial officers to the Military Court could present practical and legal difficulties. The committee notes that former state judicial officers will be eligible for appointment to the Military Court. Concerns were also raised during the inquiry with other aspects of the Military Court's establishment, for example, in relation to appeal processes. The committee is satisfied, however, that these aspects are both justified and are not unprecedented within the federal court system.

Residual use of courts martial and defence force magistrates

4.46 The residual use of courts martial and defence force magistrates was a matter of concern for some witnesses and submitters. In the view of the committee, this is a pragmatic approach which will support the maintenance of military discipline, even in situations where the Military Court determines it is necessary, but not possible, for the Military Court to conduct trials overseas. Situations which require the residual use of

courts martial and defence force magistrates are likely to be rare. Nonetheless, the committee is reassured that the ADF understands the need to continue to maintain the expertise and training within the ranks of the ADF to conduct trials in these service tribunals.

Trial by jury

4.47 The maintenance of military discipline in the ADF is a vital component of its effectiveness, both in times of peace and war. In the committee's view, defence personnel do not cease to have the rights and protections of Australian citizens, however, they do give up some rights by voluntarily enlisting in armed service and becoming subject to military discipline, including the service offences listed in the Defence Force Discipline Act. Even a 'defence civilian', a person other than a defence member who accompanies the defence force on operations, must consent in writing before becoming subject to defence force discipline.62

4.48 No right to trial by jury existed previously for those charged with serious service offences tried before courts martial or defence force magistrates. The committee does not agree with the comparisons made during the inquiry between trial by jury and trial before a court martial panel. In particular, a court martial does

62 Section 3, Defence Force Discipline Act.

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not provide a trial by peers as this service tribunal is entirely composed of officers of rank more senior than the accused.

4.49 The committee also notes that the Defence Force Discipline Act will continue to oblige the Director of Military Prosecutions to seek the consent of the

Commonwealth Director of Prosecutions before commencing prosecutions for serious offences which may be brought within the military justice system. Further, arrangements between the Director of Military Prosecutions and the Australian Directors of Public Prosecutions will ensure that, where defence personnel are alleged to have committed offences in Australia with civilian criminal law equivalents, those trials will appropriately be held in civilian courts where trial by jury is available for indictable offences.

4.50 The committee acknowledges the legitimate concerns expressed by witnesses and submitters regarding the fairness of trials being held before a single judicial officer of the Military Court for ADF members accused of serious service offences.

In particular, the committee recognises the longstanding work of the Returned and Services League of Australia and the Australia Defence Association in advocating for the interests of ADF members on this issue. However, in the view of the committee, the legal framework and the practical requirements of the military justice system complicate the introduction of trial by jury for serious service offences. These practical requirements will be highlighted when the military justice system is required to operate overseas, as a Military Court trial held in an operational setting would not be able to empanel a jury.

4.51 The committee considers that the establishment of the Military Court will have a positive impact on military discipline and confidence in the military justice system. The committee also notes departmental advice that the vast majority of service offences will continue to be dealt with summarily by ADF commanders. The Military Court will have a 'strong service character' as in most cases prosecutors,

defence counsel and the defendant will be defence personnel. Further, the judicial officers of the Military Court will be required, by reason of experience or training, to understand service within the ADF. The judicial officers of the Military Court will also provide reasons for judgement which will clarify and support the application of military discipline in the future.

4.52 While the committee acknowledges that dissenting High Court views have been expressed regarding the character of section 80 of the Constitution, the literal interpretation of section 80 has been affirmed in a consistent series of High Court

decisions. The current legal position is that it is for the parliament to determine which offences will proceed on indictment. There remains a risk of a constitutional challenge to the establishment of the Military Court as a Chapter III court without the option of trial by jury for serious service offences. Accordingly, the Australian Government should prepare a contingency plan in the event that this should occur. Nonetheless, the Australian Government is entitled to rely on its legal advice in relation to section 80 in

establishing the Military Court under Chapter III of the Constitution.

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Explanatory memoranda

4.53 As a final note, the committee expresses its concern that important

components of the policy rationale for the provisions establishing the Military Court, and the other proposed reforms, were not included in the explanatory memoranda to the bills and were only provided by the Attorney-General's Department when specifically requested by the committee in questions placed on notice. This information would have been particularly useful in clarifying some of the legal, technical and practical issues surrounding the establishment and proposed operation of the Military Court, and in assisting the committee to finalise its deliberations and the content of its report at a much earlier stage than was ultimately the case.

The committee considers that this additional information should be added to the explanatory memoranda of the bills to assist subsequent interpretation of their provisions.

Recommendation 1

4.54 The committee recommends that the explanatory memoranda of the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 be amended to incorporate the additional policy rationale for the provisions of the bills that was received in evidence from the Attorney-General *s Department during the

committee *s inquiry.

Recommendation 2

4.55 Subject to Recommendation 1, the committee recommends that the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 be passed.

_____________________________________________________________________________________ Page 51

Senator Trish Crossin Chair

403

404

DISSENTING REPORT BY

LIBERAL SENATORS

1.1 Liberal Senators were troubled by the considerable volume and weight of the criticism levelled at the Military Court of Australia Bill 2012 (Military Court Bill) and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 (Consequential Amendments Bill) in the course of this inquiry. We accept the clear need to recast Australia's military justice system in light of recent High Court of Australia decisions, but remain concerned that the Government seems to have opted for a highly problematic solution to the dilemma it faces.

1.2 Liberal Senators welcome the majority of the reforms to Australia's military justice system contained in the provisions of the bills. In particular, the establishment of the Military Court of Australia (Military Court) under Chapter III of the Constitution could potentially be an important step forward for Australia's military justice system with benefits for both the Australian Defence Force (ADF) and

individual ADF members. Unfortunately, the Military Court, as proposed in the bills before the committee, contains significant flaws which Liberal Senators consider will prevent it from providing the high standard of justice to which the Australians serving in our armed forces are entitled.

Trial by jury

1.3 The determination by the High Court in 2009 that the Australian Military Court was constitutionally invalid highlighted that the exercise of the judicial power of the Commonwealth must accord with Chapter III of the Constitution. In this context, Liberal Senators expected an appropriate level of care, consultation and caution to be exercised in the drafting of the legislation to establish the Military Court. Unfortunately, this anticipated prudence is not evident in features of this legislative package, including the decision not to provide for trial by jury for ADF members accused of serious service offences before the proposed Chapter III court.

1.4 In particular, Liberal Senators were concerned to hear evidence that the trial of serious service offences, with penalties up to life imprisonment, could be tried by a single judge of the Military Court. Previously, those accused of service offences under the Defence Force Discipline Act 1982 were not entitled to trial by jury. However, these trials were held before service tribunals, not a Chapter III court. While the argument was made that service offences are not criminal offences, in the view of Liberal Senators this distinction is blurred. Many service offences, such as theft or assault, have civilian criminal law equivalents. Further, section 61 of the Defence Force Discipline Act imports the civilian criminal law of the Jervis Bay Territory to apply to defence personnel in Australia and overseas. These include civilian criminal offences which are indictable and are tried with a jury in a civilian context.

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1.5 This exclusion of the right to trial by jury vexed many witnesses. The RSL commented:

...there is a great concern that the power to make issues to find guilt or innocence of serious service offences which may, in some instances, carry sentences on conviction of up to life imprisonment will indeed be the subject of decision by one person alone.1

1.6 The Australian Defence Association observed that the proposed arrangements:

...would both hamper Australia's national Defence efforts as a whole and narrow the rights and protections that our Defence Force personnel deserve as Australian citizens.1 2

1.7 The High Court has previously held that it is for the parliament to decide which offences will be tried on indictment, and thus which offences will entitle the accused to trial by jury under section 80 of the Constitution. Nonetheless, Liberal Senators are concerned that clause 64 of the Military Court Bill, which provides that all service offences are to be tried otherwise than on indictment, presents

an appropriate 'vehicle' for the reconsideration, or clarification, of this issue. In the view of Liberal Senators, the analysis provided to the committee by

Mr Alexander Street SC on this matter carries considerable weight.3 Liberal Senators agree with his conclusion that 'there is no rational foundation for depriving ADF personnel of their rights under [section 80] of the Constitution in the design of this new Military Court'.4

1.8 The risk of the High Court striking down this new Military Court on this ground was repeatedly stressed by witnesses and submitters. The consequences of the Military Court being found to be constitutionally invalid, including negative impacts on disciplinary processes and tmst in the military justice system, was also emphasised. Liberal Senators consider that amendments to the bills should be made to mitigate the risk of a High Court challenge and a repeat of the type of disruption to the military justice system that occurred in 2007.

1.9 The Law Council of Australia's concerns about this possibility were expressed as follows:

The disciplinary system in the ADF is an absolute core *it is one of the two main cores that the chair put to me earlier on. It goes through the whole of the Defence community; it affects everybody *and it involves people being taken away from their normal pursuits to deal with it...[I]t has to be clear

and unambiguous, and any change of a major sort in such an organ of the

1 Mr Alan Abadee, Returned and Services League, Committee Hansard, 14 September 2012, p. 2.

2 Mr Neil James, Australia Defence Association, Committee Hansard, 14 September 2012, p. 3.

3 Submission 2, pp 14-21.

4 Submission 2, p. 9.

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force produces a general unease amongst those who might be subjected to it.5

1.10 Ultimately, Liberal Senators consider that all members of the ADF are entitled to the same rights and protections as other Australian citizens before a Chapter III court. This is in keeping with Australia's international obligations, including Article 14 of the International Covenant on Civil and Political Rights which provides that all persons shall be equal before courts and tribunals. Accordingly, Liberal Senators recommend that the bills be amended to incorporate a right to trial by jury before the Military Court for all service offences which would otherwise be on

indictment in a civilian context. As with other Commonwealth offences, the right to trial by jury before the Military Court should only be for those service offences punishable by more than 12 months imprisonment. Senator David Fawcett holds the view that this may be best achieved in the military environment through a panel of military members rather than a civilian jury.

1.11 Liberal Senators do not consider that this amendment will have any effect on the maintenance of discipline within the ADF. The provision of trial by jury, for serious service offences, will serve to increase the trust and confidence of the ADF and the public in Australia's military justice system. The vast majority of disciplinary matters will continue to the dealt with summarily by commanding officers in the ADF. The Military Court will still maintain a strong service character because, in most cases, the prosecutors, the defence counsel and the defendant will be defence personnel. Further, the judicial officers of the Military Court will be required by reason of experience or training to understand service within the ADF.

1.12 During the inquiry, it was implied that a civilian jury would not necessarily understand the additional seriousness of theft on board a warship.6 However, with respect, this misinterprets the role of a jury during a trial. The role of the jury is to determine matters of fact, that is, to determine that the elements of the relevant offence allegedly committed by the accused are made out by the prosecution beyond reasonable doubt. The seriousness of the offence, because of its service context, may be a consideration of a judge in sentencing if the accused is convicted, but it should not be a consideration of the juiy in determining the facts of the case.

1.13 The evidence received during the inquiry indicated that situations requiring the residual use of courts martial and defence force magistrates (where the Military Court is unable to sit overseas) will be rare. Providing for trial by jury for service offences before the Military Court may result in additional use of courts martial and defence force magistrates in overseas operations, as it will be impractical to empanel juries in those locations. Nonetheless, in the view of Liberal Senators, the imperative

of granting a fair trial to ADF members in compliance with Chapter III of the Constitution, where this is possible, outweighs the potential difficulties of the concurrent operation of these residual service tribunals and the Military Court.

5 Mr Paul Willee QC, Chairman, Military Law Working Group, Law Council of Australia, Committee Hansard, 14 September 2012, p. 15.

6 Mr Neil James, Australia Defence Association, Committee Hansard, 14 September 2012, p. 5.

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Appointments to the Military Court

1.14 Liberal Senators remain concerned about the provisions for appointment of judicial officers to the Military Court. On one hand, the appointment provisions to the court require an understanding of military service but, on the other hand, restrict the appointment of those most likely to have that understanding of military service - the

members of the ADF community. In particular, this restriction significantly reduces the pool of judicial officers with a suitable understanding of military service who could be appointed to the Military Court.

1.15 Liberal Senators do not consider that the explanation made during the inquiry for these restrictions on appointments to the Military Court adequately justifies the complete exclusion of all ADF members from appointment to the Military Court.7 It was not clear at the public hearing whether the restrictions on appointment to the Military Court were due to constitutional concerns or were included as the result of a 'policy decision'.8 The Australian Government's legal advice on this issue was not provided to the committee.9

1.16 In this context, Liberal Senators consider that amendments should be made to expand, as far as Chapter III of the Constitution will allow, the opportunities for a reservist or a standby reservist of the ADF to be appointed to the Military Court. Liberal Senators acknowledge the suggestion of the Australia Defence Association (ADA) to exclude permanent or active reservists from appointment to the Military Court, but not members of the standby reserve.10 Senator David Fawcett supports the view of the ADA on this matter.

1.17 An amendment to expand the opportunities for reservists to serve as judges on the Military Court will have a number of advantages. These include:

" increasing the pool of suitable appointees to the Military Court who meet the requirements in subclause 11(3) (understanding of the nature of service in the ADF);

" increasing confidence in the Military Court within both the ADF and the general public; and

" increasing the deployability of the Military Court to operational environments which might be too hazardous for a civilian judicial officer.

7 Ms Margaret Meibusch, Attorney-General's Department, Committee Hansard, 14 September 2012, p. 44; Mr David Fredericks, Attorney-General's Department, Committee Hansard, 14 September 2012, p. 46.

8 Ms Margaret Meibusch, Attorney-General's Department, Committee Hansard, 14 September 2012, p. 44; Mr David Fredericks, Attorney-General's Department, Committee Hansard, 14 September 2012, p. 46.

9 Attorney-General's Department, response to question on notice, provided on 26 September 2012, p. 1.

10 Submission 13, p. 10.

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1.18 Accordingly, we make the following recommendations:

Page 57

Recommendation 1

1.19 Liberal Senators recommend that the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 be amended to provide a right to trial by jury before the Military Court of Australia for all service offences punishable by

a term of imprisonment exceeding 12 months.

Recommendation 2

1.20 Liberal Senators recommend that the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 be amended to permit reservists and standby reservists to be appointed as judicial officers of the Military Court to the extent that Chapter III of the Constitution allows this to occur.

Recommendation 3

1.21 Liberal Senators recommend that, unless the bills are amended in accordance with recommendations 1 and 2, the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 not be passed.

Senator Gary Humphries Senator Sue Boyce

Deputy Chair

Senator the Hon George Brandis SC Senator David Fawcett

Senator the Hon David Johnston

409

410

ADDITIONAL COMMENTS BY

THE AUSTRALIAN GREENS 1.1 The Australian Greens broadly support the introduction of the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 (the Military Court bills). These bills will reform Australia's military justice system by creating a separate and independent Military Court of Australia in accordance with Chapter III of the

Australian Constitution.

1.2 The Australian Greens support these bills because they aim to promote fairness, accountability and independence. The likely positive impact of the Military Court bills was best summarised by the evidence of Mr Alexander Street SC when he said to the inquiry:

The step forward into a real military justice system is a very positive step. It advances two very important features that are entrenched in our Constitution - and they are the aspects of transparency and accountability. They are features inherent in the rule of law that is entrenched in the Constitution.1

1.3 The Australian Greens are also supportive of the Military Court bills as they will bring Australia into line with its international law obligations, including its responsibilities under international human rights law.1 2 In their submission, Associate Professor Alison Duxbury, Dr Rain Liivoja and Associate Professor Matthew Groves highlighted Australia's responsibilities as a state party to the International Covenant on

Civil and Political Rights (ICCPR), which provides under article 14(1) that '[i]n the determination of any criminal charge.. .everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law'.3 They also noted that international jurisprudence has established that 'article 14 of the

ICCPR applies to military courts and tribunals'.4

1.4 However, the Australian Greens hold significant concerns with regard to one key issue; that is, the impact of clause 64 of the Military Court of Australia Bill 2012, which provides that 'charges of service offences are to be dealt with otherwise than on indictment'. The effect of clause 64 is that it appears to circumvent section 80 of the Australian Constitution, which protects a person *s right to be tried by a jury of her/his peers for serious indictable offences. The majority of stakeholders, including

stakeholders representing defence and ex-service personnel as well as constitutional law experts, raised serious concerns about this clause, both in terms of its

1 Committee Hansard, 1 4 S ep temb er 2 0 1 2 , p . 1 6 .

2 M s G ab r ielle A p p leb y an d P r o f es s o r J o h n Williams , Submission 3, p . 5 .

3 Submission 6, p . 2 .

4 Submission 6, p . 2 .

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constitutional validity and also in terms of the likely impact of it on an accused person's right to a fair trial.5

1.5 A number of stakeholders emphasised the level of seriousness of offences that could be brought before the Military Court of Australia as a key reason as to why the right to trial by jury should be available to defendants under a reformed military justice system. As Mr David McLure said, there are a number of specific service

offences that are punishable by life imprisonment and which can only be dealt with under the military justice system - i.e. offences such as providing the enemy with material assistance, mutiny etc.6 Given the seriousness of such offences, the Court's

capacity to impose life sentences, and the important protection that jury trials provide to individual defendants, there was strong, majority agreement amongst stakeholders that jury trials should be available under the Military Court bills.

1.6 The Australian Greens are deeply concerned by the prospect that a person's right to trial by jury could be abrogated under the Military Court bills. Particularly alarming is the possibility that a person may be tried under the new military justice system for an offence such as murder or mutiny, which is punishable by life imprisonment, and that such trial and sentence would only be determined by a single judge. This outcome is inconsistent with the principles of fairness and independence,

and contrary to the purpose and function of section 80 of the Australian Constitution.

1.7 Given the overwhelming concerns expressed by stakeholders regarding clause 64 of the Military Court of Australia Bill 2012, the Australian Greens recommend that this clause be amended so as to allow jury trials in the case of very serious offences.

Recommendation 1

1.8 That clause 64 of the Military Court of Australia Bill 2012 be amended so as to allow defendants the right to trial by jury in the case of the most serious offences, which incur a significant term of imprisonment as punishment for the offence.

Senator Penny Wright Australian Greens

5 F o r ex amp le, A u s tr alia D ef en ce A s s o ciatio n , S u b mis s io n 1 3 , p . 6 an d M s G ab r ielle A p p leb y

an d P r o f es s o r J o h n Williams , Submission 3, p . 4 .

6 Submission 11, p . 3 .

412

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

APPENDIX 1

SUBMISSIONS RECEIVED

Submitter

Federal Court of Australia

Mr Alexander Street SC

Ms Gabrielle Appleby and Professor John Williams

Law Council of Australia

Returned and Services League of Australia

Associate Professor Alison Duxbury, Dr Rain Liivoja and Associate Professor Matthew Groves

South Australian Bar Association and Law Society of South Australia

Inspector General Australian Defence Force

General D J Hurley AC, DSC, Chief of the Defence Force,

on behalf of the Australian Defence Force

Brigadier L A McDade, Director of Military Prosecutions

Mr David McLure

Mr Alister Abadee

Australia Defence Association

Mr David McLure and Mr Alister Abadee

Attorney-General's Department

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ADDITIONAL INFORMATION RECEIVED

1 Response to questions on notice provided by Law Council of Australia on 19 September 2012

2 Response to questions on notice provided by Department of Defence on 24 September 2012

3 Responses to questions on notice provided by Attorney-General's

Department on 24 and 26 September 2012

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APPENDIX 2

WITNESSES WHO APPEARED

BEFORE THE COMMITTEE

Canberra, 14 September 2012

ABADEE, the Hon Alan, AM, RED, QC, RSL Representative,

Returned and Services League of Australia

ABADEE, Mr Alister

COUSINS, Ms Loren, Senior Legal Officer, Federal Courts Branch,

Attorney-General's Department

CRONAN, Air Commodore Paul, AM, Acting Head, Defence Legal,

Department of Defence

DUXBURY, Associate Professor Alison

EARLEY, Mr Geoff, AM, Inspector General Australian Defence Force

FREDERICKS, Mr David, Deputy Secretary, Civil Justice and Legal Services Group, Attorney-General's Department

GROVES, Associate Professor Matthew

HENDERSON, Mr Simon, Policy Lawyer, Civil Justice Division,

Law Council of Australia

HURLEY, General David, AC, DSC, Chief of the Defence Force, Department of Defence

JAMES, Mr Neil, Executive Director, Australia Defence Association

McLURJE, Mr David

MEIBUSCH, Ms Margaret, Principal Legal Officer, Federal Courts Branch, Attorney-General's Department

PARMETER, Mr Nick, Director, Civil Justice Division, Law Council of Australia

SALMON, Mr Ben, RFD, QC, Member, Military Law Working Group,

Law Council of Australia

SMRDEL, Dr Albin, Assistant Secretary, Federal Courts Branch,

Attorney-General's Department

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STREET, Mr Alexander, SC

TRACEY, Major General the Hon Justice Richard,

Judge Advocate General, Australian Defence Force

WILLEE, Mr Paul, RED, QC, Chairman, Military Law Working

Law Council of Australia

WILLIAMS, Professor John

RFD,

Group,

416

Senate Legal and Constitutional Affairs Legislation Committee

Passenger Movement Charge Amendment Bill 2012 [Provisions]

Correction - Dissenting Report by Coalition Senators

Page 30, paragraph 1.45, line 1

" After 'added but', delete 'been', insert 'not'.

The corrected sentence will read -'Over the intervening years since the PMC was introduced, many levies and charges have been added but not repealed once the campaign associated with the levy has ceased'.

Senate Legal and Constitutional Affairs Legislation Committee

Report of the inquiry into the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 [Provisions]

Correction

Page xii, paragraph 6.62, line 3 (Recommendation 13)

" Delete 'item 72 of Schedule 2', insert 'item 29 of Schedule 3'.

The corrected sentence will read -'The committee recommends that the Office of the Australian Information Commissioner, in formulating guidelines under proposed new section 26V in

item 29 of Schedule 3 of the Bill, include as a criterion the timeframe within which an individual's 'default information' can be listed by a 'credit provider'.

Page 113, paragraph 6.62, line 3 (Recommendation 13)

" Delete 'item 72 of Schedule 2', insert 'item 29 of Schedule 3'.

The corrected sentence will read -'The committee recommends that the Office of the Australian Information Commissioner, in fonnulating guidelines under proposed new section 26V in item 29 of Schedule 3 of the Bill, include as a criterion the timeframe within

which an individual's 'default information' can be listed by a 'credit provider'.

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THE SENATE

LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE

23 October 2012

Senator the Hon John Hogg President of the Senate

INQUIRY INTO THE PROVISIONS OF THE REGULATORY POWERS

(STANDARD PROVISIONS) BILL 2012

REPORT

Pursuant to Senate Standing Order 38(7), I present to you the report of the Senate Legal and Constitutional Affairs Legislation Committee (committee) in relation to the Regulatory Powers (Standard Provisions) Bill 2012 (Bill). The provisions of the Bill were referred to the committee on 11 October 2012, for inquiry and report by 29 November 2012.

The House of Representatives has also referred the Bill to the Parliamentary Joint Committee on Law Enforcement (PJC) for inquiry and report.

The Bill provides a framework of standard regulatory powers for exercise by agencies across the Commonwealth. Key features of the Bill include monitoring and investigation powers; and enforcement provisions through use of civil penalties, infringement notices, enforceable undertakings and injunctions. The monitoring and investigation powers are based on those found in existing Commonwealth legislation.

The committee has decided that it will not duplicate the work of the PJC and, accordingly, has resolved that it will not call for submissions or conduct its own inquiry in relation to the Bill.

The committee reports accordingly.

Senator Trish Crossin Chair

PO Box 6100, Parliament House Canberra ACT 2600 Tel: (02) 6277 3560 Fax: (02) 6277 5794 Email: legcon.sen@aph.gov.au Internet: http://www.aph.gov.au/senate

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TH E PAR LIAM ENT OF THE

C OM M ON WEA LTH OF AUSTRALIA

PARLIAMENTARY

PAPER

No. 470 of 2012 OR D ER ED TO BE PRINTED

ISSN 0727-4181