Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I present four government responses to committee reports as listed at item 13 on today’s Order of Business. In accordance with the usual practice, I seek leave to have the documents incorporated in Hansard.

Leave granted.

The documents read as follows—

Senate Legal and Constitutional Affairs Legislation Committee

Personal Property Securities (Consequential Amendments) Bill 2009

Government Response

Recommendation 1

That the government continues to provide transparency about policy decisions in relation to PPS reform by making public its response to all concerns raised about the reform brought to its attention in writing and by providing as much information as possible about the reasons for the policy choice in each instance.

Government response:

Accepted. The government will make public its responses to concerns raised about PPS reform in writing through the Attorney-General’s Department website, including through the provision of a ‘frequently asked questions’ page.

Recommendation 2

The committee recommends that the government continue its approach of completing the majority of the PPS reform while continuing discussions on the outstanding issues and undertaking further legislative action where this is needed.

Government response:

Accepted.

Recommendation 3

That the government considers mitigating the severity of the consequence of a defective PMSI registration in goods.

That this issue is the subject of consideration during the (proposed) statutory review of the PPS legislation.

Government response:

Accepted. The Government will consider the appropriate balance for the consequences of a defective PMSI registration in consultation with the PPS Consultative Group. The consequences of a defective PMSI registration in goods will also be considered as part of the statutory review of the PPS scheme.

Recommendation 4

The committee recommends that the operation of section 14(2)(c) is the subject of particular consideration during the (proposed) statutory review of the PPS legislation.

Government response:

Accepted.

Recommendation 5

The committee recommends that the government assess and respond to the issues raised by the combined law firms in relation to proposed sections 101 and 102 of the PPS Bill 2009.

That this issue is the subject of consideration during the (proposed) statutory review of the PPS legislation.

Government response:

Accepted. The Government has responded to the concerns raised by the law firms in its answer of 18 November 2009 to a question on notice posed by the Committee. The operation of clauses 101 and 102 of the PPS Bill will be considered by the statutory review of the PPS scheme.

Recommendation 6

That the government regularly provides information to stakeholders about the progress of the Corporations Act amendments relevant to the personal property securities reform.

Government response:

Accepted. The Government will provide information to stakeholders about the progress of amendments to the Corporations Act required as a result of PPS reform through the Attorney-General’s Department website and other PPS publications, such as the PPS newsletter.

Recommendation 7

The committee recommends that the concerns of the Office of the Victorian Privacy Commissioner submitted to the committee be considered in detail by the government.

Government response:

Accepted. The Government will liaise with the Office of the Victorian Privacy Commission and the federal Privacy Commissioner to consider the concerns raised.

Recommendation 8

That the government consider and respond to all of the issues raised in the submissions made to this inquiry to which it has not already responded.

Government response:

Accepted.

Recommendation 9

The committee recommends that the Senate pass the Bill and urges the government to act on the other recommendations in this report.

Government response:

Noted.

Liberal Senators’ Recommendation

Recommendation 1

Liberal Senators repeat their recommendation from the August 2009 report, that the government and the department release the revised draft regulations for public consultation as soon as possible.

Government response:

Accepted. The Attorney-General’s Department has published a revised paper outlining the proposed PPS Regulations. The Government will make draft regulations publicly available in early 2010.

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AUSTRALIAN GOVERNMENT RESPONSE

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

INQUIRY INTO THE IMMIGRATION BRIDGE PROPOSAL

MINISTER FOR HOME AFFAIRS

JANUARY 2010

Introduction

On 25 February 2009, the then Minister for Home Affairs, the Hon Bob Debus MP, requested the Joint Standing Committee on the National Capital and External Territories to inquire into and report on:

1. The process adopted by Immigration Bridge Australia (IBA) to settle the design for the Immigration Bridge (the Bridge) taking into account:

a.

the heritage values of Lake Burley Griffin and its foreshore, and

b.

the interests of users of the Lake.

2. The process that has been adopted by IBA to raise funds for the construction and ongoing maintenance of the Bridge.

3. The approval process required under the Australian Capital Territory (Planning and Land Management) Act 1988 if an application for approval of the Bridge were received by the National Capital Authority.

The Committee tabled its report on 29 May 2009.

Government Response

Recommendation 1

The Committee recommends that in the interest of improving its transparency and accountability Immigration Bridge Australia:

• clarify its refund policy in relation to the History Handrail program; and
• make its financial documents publicly available on its website.

The Government notes this recommendation.

Recommendation 2

The Committee recommends that if the proposed IBA bridge is ceded to the Commonwealth, then the government should ensure that agreement to receive the bridge is met by increased funding to the NCA to manage its ongoing maintenance

The Government notes this recommendation. If the IBA proposal proceeds and the Commonwealth Government were to agree to accept the proposed bridge as an asset gifted to the nation, any financial implications would be considered as part of the normal budget processes.

Recommendation 3

The Committee recommends that Immigration Bridge Australia seeks to reconcile competing issues relating to Lake users, vista and heritage value of the Lake and its foreshores.

If IBA finds that this challenge cannot be met or its development application for the proposed bridge is unsuccessful then IBA should consider:

• changing the location of the proposed bridge; or
• proposing an alternative memorial to migration.

The Government notes this recommendation.

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JOINT COMMITTEE OF PUBLIC ACCOUNTS AND AUDIT

GOVERNMENT RESPONSE TO REPORT 413

‘THE EFFICIENCY DIVIDEND AND SMALL AGENCIES: SIZE DOES MATTER’

JOINT COMMITTEE OF PUBLIC ACCOUNTS AND AUDIT

(JCPAA) REPORT NO. 413

‘The efficiency dividend and small agencies: size does matter’

Recommendation No. 1

The Committee recommends that, in addition to being adequately funded for other assurance activities, the Australian National Audit Office be funded to conduct the number of performance audits that is determined by the Auditor-General and endorsed by the Joint Committee of Public Accounts and Audit.

Not agreed. In the 2009-10 Budget, the Government announced that it will provide an additional $20.1 million over four years to increase the resource base of the Australian National Audit Office (ANAO). This will allow the ANAO to enhance its auditing activities, including performance audits, information technology audits and other specialist audit activities and increase technical support and quality assurance capability.

The Government considers it appropriate that decisions on the future funding for the ANAO continue to be subject to the usual budgetary processes in which proposals for additional funding are considered against other competing priorities.

Recommendation No. 2

The Committee recommends that the Government establish a parliamentary commission co-chaired by the Speaker of the House of Representatives and the President of the Senate and comprising elected representatives to recommend funding levels for the parliamentary departments in each Budget

Noted. The Government considers it appropriate that decisions on the future funding for the parliamentary departments continue to be subject to the usual budgetary processes in which proposals for additional funding are considered against other competing priorities.

The Speaker of the House of Representatives and the President of the Senate are, of course, still able to put forward funding proposals in accordance with the budgetary rules and processes in place at the time. It is open to the Speaker and President to make arrangements to increase the input by elected representatives into such proposals as they see fit.

Recommendation No. 3

The Committee recommends that the Department of Finance and Deregulation, the Australian Public Service Commissioner and each cultural agency jointly develop a new funding model for cultural agencies. This model should recognise the importance of funding the mandate for growth and development of collections and the proportion of their expenses apportioned to depreciation.

The Committee notes that recommendation 8 will also apply to these agencies

Agreed in principle. The Minister for Finance and Deregulation announced on 9 December 2008, as part of Operation Sunlight, that the Government would phase out funding of depreciation and other non-cash items and introduce the appropriation of general government sector agencies on the basis of net cash requirements. The new arrangements have been introduced from the 2009-10 Budget for Collecting Institutions (such as the National Library of Australia, the Australian War Memorial, and the National Gallery of Australia) which have been provided with a Collection Development Acquisition Budget for Heritage and Cultural assets.

This revised funding model provides greater transparency of appropriations to agencies and their use in the acquisition, maintenance, replacement and disposal of assets.

The Government does not consider that the development of funding models for cultural agencies requires the direct involvement of the Australian Public Service Commissioner.

Recommendation No. 4

The Committee recommends that the Attorney-General establish an independent body to recommend funding levels for the Commonwealth courts. The courts should be treated as a separate ‘portfolio’ under the Attorney-General in the Budget process and in the Budget papers.

Not agreed. The Government considers it appropriate that decisions on the future funding for the courts continue to be subject to the usual budgetary processes in which proposals for additional funding are considered against other competing priorities and in light of prevailing budget constraints.

The Government notes that ‘courts and tribunals’ are one of fifteen matters listed under the mantle of ‘law and justice’ within the Attorney-General’s Department (according to the Administrative Arrangements Order dated 25 January 2008). The Government does not consider there to be a case for the excision of this one function over the fourteen others for the purposes of the budget process. Such action could also set an undesirable precedent in relation to the functions of other Departments of State. Furthermore, as the courts are already appropriated on an individual basis within the Attorney-General’s portfolio, the Government is unable to discern that any advantage would be achieved by treating the courts as a separate portfolio under the Attorney-General.

Recommendation No. 5

The Committee recommends that the Government investigate whether the courts’ appropriations should be included in the appropriation bills for the ordinary annual services of the Government.

Noted. The Government considers that establishing separate appropriation bills for the courts would not, in itself, lead to increased efficiency or enhanced transparency nor provide any additional financial benefits to the courts. The courts would remain subject to the Government’s normal budgetary processes and practices, including the new policy proposal process, the efficiency dividend, and parameter indexation arrangements.

This recommendation is being further considered by the Government in relation to the High Court.

Recommendation No. 6

The Committee recommends that, where Finance generates savings through coordinated procurement, 50 per cent of the savings should be made available to the agencies for investment in projects designed to lift their efficiency and effectiveness.

Noted. The Government realises savings through both agency and program specific measures, and through whole of government measures. It determines the allocation of all resources, including those savings generated by coordinated procurement in the context of its overall fiscal strategy and objectives. For example, in January 2009, the Government established a Volume Sourcing Arrangement (VSA) with Microsoft, as the first of several initiatives to be completed under the Government’s Coordinated Procurement Contracting Framework. The Microsoft VSA is expected to deliver annual savings of at least $15 million, for four years commencing in July 2009. Under the VSA, agencies retain any savings made, less a small administration fee.

Similarly, the Government has developed Guidelines on Recruitment Advertising that will specify the maximum size and placement of recruitment advertisements. The use of these guidelines is expected to result in more efficient recruitment advertising expenditure across FMA Act agencies, delivering value for money for taxpayers. The Government has decided that any savings achieved by a department or agency from applying the Guidelines on Recruitment Advertising may be retained by the relevant department or agency.

Recommendation No. 7

The Committee recommends that the Department of the Prime Minister and Cabinet convene a taskforce with membership from key agencies, including the Australian Public Service Commission, to conduct and publish further analysis on:

• the relationship between gender wage disparities and agency size and function;
• the relationship between wage disparities generally and agency size and function; and
• whether staff classifications continue to represent equivalent levels of skills, responsibility and experience across agencies.

If collecting further data or enhancing databases is required, the agencies involved should receive supplementary funding.

Agreed in part. A Working Group, comprising the Departments of: the Prime Minister and Cabinet; Education, Employment and Workplace Relations; Treasury, and Finance and Deregulation; and the Australian Public Service Commission will undertake further work in this area including an examination of the relationship between wage disparities and agency size and function and the adequacy of classification management arrangements (within and across agencies).

Consideration will be given to the publication of the Working Group’s findings following completion of this work. Any need for supplementary funding for additional data collection by Australian Public Service agencies will be considered as part of the normal budget processes and subject to budget constraints.

Recommendation No. 8

The Committee recommends that the Government either:

• exempt the first $50 million of all agencies’ appropriations from the efficiency dividend, excluding departments of state (the preferred option); or
• exempt the first $50 million of the appropriations of all agencies that have departmental expenses of less than $150 million, excluding departments of state.

These benchmarks to be indexed over time.

Not agreed. While the Government appreciates the work of the Committee in the formulation of the above recommendations, it notes that the efficiency dividend framework has been an integral part of successive governments’ efforts to introduce an effective mechanism to secure public service efficiencies, thus allowing the Australian taxpayer to share in these gains. It also reiterates that the efficiency dividend is intended to provide an ongoing incentive for agencies to operate efficiently and make further productivity gains, irrespective of their size.

The Government considers that it is reasonable to expect agencies to pursue efficiencies which enable the Government to consider priorities for reallocating resources. In response to the claim that efficiencies have generally been delivered by small agencies and that the impact of the efficiency dividend is now resulting in reductions in outputs, the Government considers that the pursuit of efficiencies is an ongoing process, and there is an imperative for both small and larger agencies to contribute.

The Government accepts that, from time to time, circumstances may arise in individual smaller agencies that magnify the impact of the efficiency dividend. The Government believes that, where this does occur, the situation should be addressed individually on its merits, rather than by a blanket exemption. To this end, in the 2009-10 Budget the Government provided an additional $20.1 million over four years (including capital funding of $0.9 million) to the Australian National Audit Office for enhanced professional capability.

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Government Response to Report 91 of the Joint Standing Committee on Treaties regarding Treaties between Australia and the United Arab Emirates on Extradition and Mutual Assistance in Criminal Matters

The Extradition Treaty

General comments

The Government thanks the Committee for its consideration of the Treaty on Extradition between Australia and the State of the United Arab Emirates. In expressing its conclusions on the Extradition Treaty, the Committee stated ‘it has concerns in relation to the general operation of Australia’s current treaty model for extradition’. It said that ‘Australia’s responsibility for persons extradited from Australia should not end at the conclusion of the extradition process, but should extend to monitoring the detention of extradited persons, the judicial proceedings they are subject to, their sentencing and their imprisonment.’

The Government appreciates the Committee’s views on this issue. However, the imposition of a general monitoring scheme for Australia’s extradition arrangements as proposed by the Committee would represent a significant and substantial change to such arrangements, and would significantly alter the basis on which extraditions are conducted in terms of both Australian and international practice.

Australia is currently a party to 34 modern bilateral extradition treaties and more than 20 multilateral treaty instruments which include extradition obligations, and also participates in various non-treaty arrangements based on understandings of reciprocity. None of the existing arrangements provide for monitoring of persons following extradition, and the Government is not aware of any international extradition agreements which contemplate such measures.

Australia could seek to have such measures included in extradition treaties. However, given the novelty of the proposed measures in the context of established practice, attempts to impose such measures, whether by treaty provision or otherwise, are likely to be strongly resisted by our existing and potential extradition partners, including on the grounds the measures would infringe the criminal justice processes and sovereignty of the requesting State. Insistence on such measures as a general condition of extradition is likely to preclude effective extradition relationships with a significant number of existing and future extradition partners. This would risk Australia becoming a safe haven for fugitives from many countries.

In general terms – and as a matter of international practice – the Vienna Convention on Consular Relations, which to a large extent codifies customary international law, provides for a State’s right to directly monitor proceedings against its nationals who are subject to detention or prosecution in another State. Accordingly, while Australia may implement monitoring measures in relation to Australian nationals extradited overseas (and has done so), the Vienna Convention does not provide any right to access citizens of other countries. There are also practical obstacles to extending this type of arrangement to all persons extradited from Australia, including the resources and expertise that would need to be deployed.

To the extent the Committee’s concerns relate to the potential abuse of the human rights of persons who are extradited from Australia, the Government considers such concerns are more appropriately addressed in the context of the extradition process, rather than through the establishment of a detailed monitoring mechanism. Such a mechanism could only come into effect after the event, would be dependent on the preparedness of the government of the relevant country and the relevant local legislation to allow such monitoring and could not provide any legal basis for Australia to act on concerns in relation to the person surrendered. Thus, for example, if there is a real risk that the person may be subject to the death penalty or torture upon surrender, then extradition must be refused as a matter of law, according to subsection 22(3) of the Extradition Act 1988. This approach is consistent with Australia’s settled approach to the removal of persons through other processes, such as under the Migration Act 1958, and with Australia’s obligations under international human rights treaties. Under those treaties, any assessment of whether a person may be subject to the death penalty or torture must be carried out before their removal from Australia, not after.

Recommendation 1

The Committee supports the Treaty on Extradition between Australia and the State of the United Arab Emirates and recommends that binding treaty action be taken.

The Government accepts this recommendation, and will arrange the making of regulations under the Extradition Act 1988 in order to implement the treaty.

Recommendation 2

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

The Government does not accept this recommendation. It is not aware of any precedents for such a requirement in existing bilateral and multilateral extradition agreements. Many current and potential extradition partners would not be prepared to accept explicit obligations of this nature in extradition agreements. A requirement to provide such information in relation to all persons who have been subject to extradition to or from Australia would also impose significant and unwarranted administrative burdens on the justice and correctional authorities of the relevant jurisdictions.

Recommendation 3

That the Australian Government develop and implement formal monitoring arrangements for Australia’s bilateral extradition treaties which include the following elements:

• The Attorney-General’s Department informs the Department of Foreign Affairs and Trade of each extradition, including the terms of the relevant extradition agreement and any special conditions applying to the case.
• The Department of Foreign Affairs and Trade would be expected to formally monitor all extradited Australians through the consular network.
• In the event that a foreign national is extradited to their country of citizenship, the extradition should be made on the understanding that the Australian Government will be informed through its diplomatic representatives of the outcome of the prosecution and the ongoing status of the person while in custody as a result of a conviction. The Australian consular networks would be expected to monitor and report on the condition of the extradited person until they have served their sentence and were released.
• In the event that a foreign national is extradited to a third country, the extradited person’s country of citizenship should be informed and asked to monitor that person’s trial status and health and the conditions of the detention facility in which they are held and report to the Australian Government if it has the capacity and is willing to do so. In the event that an extradited person’s country of citizenship does not have the capacity to monitor the extradited person or is not willing to do so, then the Australian Government should monitor the person’s trial status and health and the conditions of the detention facility in which they are held through Australia’s consular network until that person is acquitted or, if convicted and imprisoned, their sentence is served, they are released and leave the country.

The Government does not accept this recommendation. As outlined above, Australia is able to implement monitoring mechanisms in relation to Australian nationals detained overseas (including persons who have been extradited from Australia), and has done so. However, this does not apply in relation to foreign nationals. The Government recognises it has a specific role in relation to the welfare of Australian nationals, and this accords with the Vienna Convention on Consular Relations, which provides an exception to the general rule of non-interference in relation to monitoring the welfare of nationals.

Australia’s ability to introduce monitoring regimes for non-Australians extradited overseas would depend, in the first instance, on the consent of the requesting country. As outlined above, we assess that many foreign countries would not be prepared to accept such arrangements. There is no provision for such regimes under our extradition treaties or other international instruments, so it would not be lawfully open to Australia to insist on such arrangements as a condition of extradition.

As a matter of practice, the provision of such assistance to foreigners who have been extradited overseas would place pressure on the limited resources of Australia’s consular network, which has been established to assist Australians overseas.

In summary, the Government will maintain the following measures:

(a) The Attorney-General’s Department will continue to inform the Department of Foreign Affairs and Trade of each extradition of an Australian citizen and permanent resident, including the terms of the extradition and any special conditions applying to the case.

(b) The Department of Foreign Affairs and Trade will continue to monitor all extradited Australian citizens and permanent residents through the consular network, to the extent that this is practically and legally possible (the Vienna Convention only specifically refers to consular rights in relation to Australian citizens, and in any case, Australian citizens or residents may at any time refuse assistance or withdraw their consent to being monitored).

(c) In relation to foreign nationals sought for extradition from Australia by a third country, the question of monitoring the person following extradition is fundamentally a matter for the person and his or her country of nationality. When foreign nationals are detained in Australia (e.g., in the context of extradition proceedings), law enforcement officers must inform them that they are entitled to request that their consular authorities be informed of their detention, and the consular authorities are entitled to visit and communicate with the relevant person, including in relation to the extradition. Once an extradition has taken place, it is the responsibility of the requesting country to enable consular access to the foreign national as appropriate.

Recommendation 4

The Committee recommends that the Attorney-General’s Department and/or the Department of Foreign Affairs and Trade include in their annual report to Parliament the following information concerning the operation of Australia’s extradition agreements:

• the number of extradition requests made, granted and refused including the countries making the requests and the alleged offences involved;
• whether any waivers to provisions in an extradition treaty have been sought by any country and, if so, whether they were granted;
• the number of persons extradited (Australian citizens, permanent residents of Australia, foreign nationals); and
• whether any breaches of bilatera