Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Hansard source

I present government responses to reports from the following committees: the Foreign Affairs, Defence and Trade References Committee on its inquiry into the efficacy of the Department of Foreign Affairs and Trade due diligence framework and the Legal and Constitutional Affairs Legislation Committee on its inquiry into the provisions of the Attorney-General's Portfolio Miscellaneous Measures Bill 2023. In accordance with the usual practice, I seek leave to incorporate the documents in Hansard.

Leave granted.

The documents read as follows

Foreign Affairs, Defence and Trade References Committee — Report on the efficacy of the Department of Foreign Affairs and Trade due diligence framework — Government response

Australian Government response to the Foreign Affairs, Defence and Trade References Committee report:

Efficacy of the Department of Foreign Affairs and Trade due diligence framework

September 2024

Introduction

The Australian Government welcomes the opportunity to respond to the report of the Foreign Affairs, Defence and Trade References Committee ('the Committee') on its inquiry into the: Efficacy of the Department of Foreign Affairs and Trade ('DFAT') due diligence framework ('the report').

The Government recognises and appreciates the work of the Committee. The report is comprehensive and detailed, with four recommendations. The Government also notes the additional comments from some members of the Committee, including their concerns about recommendations one, two and three.

The Government has carefully considered the report and does not accept recommendations one and two. The Government notes recommendations three and four.

DFAT makes extensive use of a range of partners, and in turn their downstream partners, to support implementation of the Australian development program. DFAT's Due Diligence Framework (the Framework) is part of its broader risk management approach, applying a structured and consistent methodology to review a potential partner's ability to deliver services in line with the policy requirements of the Australian development program. The Framework assists financial delegates to satisfy Public Governance, Performance and Accountability Act 2013 requirements to discharge their duties with the degree of care and diligence a reasonable person would exercise.

The Framework is one element of the Government's risk management approach to the delivery of official development assistance in the high-risk context of Myanmar. DFAT's approach extends beyond the selection assessment of partners to the close monitoring of program delivery and implementation. DFAT actively monitors programs throughout their life-cycle to confirm that Australian assistance has been delivered as intended and has not been misdirected to the regime.

The Government remains deeply concerned about the situation in Myanmar, and the ongoing repression and violence by the military regime. The Government remains committed to supporting the people of Myanmar through the provision of sustained development and humanitarian assistance. The Government does not provide direct funding to the Myanmar military regime and takes proactive steps to ensure assistance is neither diverted to the regime nor legitimises or gives credibility to the regime.

Response to the recommendations

Recommendation 1

The committee recommends that the Australian Government direct the Department of Foreign Affairs and Trade to develop and implement an alternative and more flexible due diligence framework to be used when a recipient community is in a defined contested environment.

Response: Not accepted.

The Government does not accept this recommendation. Under Australia's International Development Policy, we will continue to deliver a high-quality, effective development program underpinned by rigorous performance and delivery frameworks.

The Government considers the existing Due Diligence Framework used by DFAT fit-for-purpose. The Framework allows DFAT to employ a risk-based approach to the engagement of a wide range of implementing partners, many of whom operate in difficult environments.

The Framework establishes important minimum requirements for any implementing partner delivering development cooperation or humanitarian assistance, regardless of the environment. These minimum requirements are reflected in the seven criteria applied for a baseline due diligence assessment (Entity Details; Past Performance; Fraud and Corruption Control; Proscribed List Checks; Integrity System Checks; Child Protection; and Preventing Sexual Exploitation, Abuse and Harassment). Delegates may elect to include additional assessment criteria depending on a range of factors such as the complexity and financial value of the activity, operating environment and delivery arrangements.

Guidance for departmental officers provides some flexibility in how assessments are conducted. It outlines a range of evidence that can be used to complete assessments and indicates they are to be based on a pragmatic evaluation of the best available evidence at the time of completion.

The Framework is a risk management tool and not a hard gate for funding, except in instances where a potential partner is on one of DFAT's prohibited dealings lists (e.g. sanctions). It is used to ensure that the delegate has the information they need to make an informed decision, including how risks identified in the assessment process will be mitigated.

DFAT is currently considering the recommendations from a strategic review of the Australian NGO Cooperation Program ('ANCP') accreditation process and funding policies to ensure these are fit for purpose and able to adapt to multiple contexts, including in Myanmar. ANCP accreditation is a rigorous process, which aligns with and satisfies DFAT's due diligence requirements.

Recommendation 2

The committee recommends that the Australian Government direct the Department of Foreign Affairs and Trade to develop a decision support tool to assist officers conducting risk management assessments to make it easier to facilitate better distribution of aid funding using the proposed contested environment due diligence framework.

Response: Not accepted.

The Government does not accept this recommendation. DFAT has a comprehensive risk management policy with procedures and supporting systems to assist officers conducting risk management assessments in relation to development and humanitarian investments.

Risk management is a key focus of the investment design process and is subject to testing and quality assurance. For every investment, there is screening for mandatory policy considerations, including environmental and social safeguards, fraud and corruption and terrorism resourcing risks, as well as other common risk factors. Risks associated with a potential implementing partner, identified through the due diligence assessment process, are also incorporated into investment risk registers stored on the department's online program management platform, AidWorks.

Delegates approving investment designs are responsible for ensuring all material risks have been identified and appropriate management controls and treatments are in place. The Risk Appetite Statement and Tolerances Levels for the development program provide guidance to departmental officers as to which categories of risk require greater attention in decision making and management effort during implementation.

A strong focus on risk management is maintained throughout the implementation phase of an investment. DFAT recommends that investment managers review investment risk registers at least quarterly. In addition, all investments over $3 million are required to undergo an annual performance assessment, which includes criteria related to risk management.

Recommendation 3

The committee recommends that the Australian Government utilise any new due diligence framework to engage with and strengthen ties with aid partners and stakeholders on the ground in contested environments, such as the National Unity Government, faith-based non-government organisations and civil society organisations.

Response: Noted.

The Government notes this recommendation.

Although the Government does not accept recommendations one and two, it notes the intent of this recommendation in terms of strengthening localisation, which is a key commitment of Australia's International Development Policy.

Australia already engages with development and humanitarian partners and stakeholders on the ground in contested environments, including Myanmar.

The Government appreciates the importance of hearing and understanding the voices of all stakeholders in Myanmar. Australian officials engage with representatives of the National Unity Government, faith-based non-government organisations (NGOs), civil society organisations and other groups. Australia will continue to engage with all relevant stakeholders to reduce the politicisation of international development assistance, and to advocate for access to people in need and the safety of those providing assistance.

Australia's development and humanitarian assistance for Myanmar is delivered through United Nations (UN) agencies, multilateral and regional partners, international NGOs, local NGOs and local civil society organisations. While Australia's direct funding partners are mostly multilateral agencies and international NGOs, they partner with local groups to deliver assistance.

Recommendation 4

The committee recommends that further details be released as soon as possible on the Australian Government's new International Development Policy's key commitments on:

providing multi-year funding and capacity development to local organisations, with support as needed to meet policy requirements; and

designing a new Civil Society Partnerships Fund that will support local CSOs.

In particular, detailing how these programs will apply in the context of Myanmar and resolve the challenges being faced under the current framework.

Response: Noted.

The Government notes this recommendation. Australia's International Development Policy prioritises locally-led development, multi-year funding and capacity development to local organisations, with support as needed to meet policy requirements. The policy also includes a commitment to design a new Civil Society Partnerships Fund that will support local civil society organisations. DFAT will release further details as arrangements are developed.

To facilitate implementation of these commitments, DFAT has recently published new guidance on supporting locally-led development. The guidance emphasises there is no 'one size fits all' approach to locally-led development programming. Further detail will be outlined at country-level in Development Partnership Plans, and at program-level through investment designs, taking into account factors such as country context, development objectives, delivery models, partners, risk and safeguarding.

Providing support for organisational capability (e.g. financial management, child protection policies) will be central to locally-led development: this can be provided directly in funding agreements or via intermediaries. Strategies will be tailored with the local organisation.

In certain contexts, it may not be possible to partner directly with local actors. In those cases, DFAT will work indirectly through intermediaries such as Australian NGOs, international NGOs, multilateral agencies and managing contractors. For example, to advance locally-led development, ANCP allows partner NGOs to plan multi-year programs and projects, and is also trialling a 'pass down' of a minimum $10,000 for each Australian NGO annual grant to local partners to support their administrative costs.

The Government has a range of multi-year humanitarian and development programs in Myanmar across several sectors, where the direct implementing partner is a multilateral agency or international NGO, but which partner with a range of local organisations to implement activities on the ground. Many of these programs provide multi-year funding and capacity development for local organisations. Noting the sensitivities and security situation in Myanmar, the Government does not publicise the details of local implementing partners. This is at their request.

Legal and Constitutional Affairs Legislation Committee — Report on the Attorn e y-General's Portfolio Miscellaneous Measures Bill 2023 [Provisions] — Government response

Australian Government response to the Senate Legal and Constitutional Affairs Legislation Committee report:

Attorney-General's Portfolio Miscellaneous Measures Bill 2023 [Provisions]

AUGUST 2024

Introduction

The Australian Government welcomes the opportunity to respond to the Senate Legal and Constitutional Affairs Legislation Committee's (the Committee) report, Attorney-General's Portfolio Miscellaneous Measures Bill 2023 [Provisions] (the Report), tabled on 1 February 2024. The Government would like to acknowledge the contribution that organisations made in preparing written submissions to the Committee's inquiry.

The Attorney-General's Portfolio Miscellaneous Measures Act 2024 (the Act) received Royal Assent on 11 June 2024. The Act makes a range of important amendments to update, clarify and improve the intended operation of legislation administered by the Attorney-General's portfolio. The Act:

Marriage Act 1961

Native Title Act 1993

Federal Circuit and Family Court of Australia Act 2021 Federal Court of Australia Act 1976

The amendments to the Human Rights (Parliamentary Scrutiny) Act 2011 to expand the membership of the PJCHR (Schedule 4, Part 2A) were inserted after the Committee's inquiry.

The Government tabled an Addendum to the Explanatory Memorandum for the Attorney-General's Portfolio Miscellaneous Measures Bill 2023 (Addendum) in the Senate on 16 May 2024 to address Committee recommendations 1-2 and dissenting recommendations 2-4 and 6-7 of Senator Paul Scarr.

The Government's response to the Report is set out below. The response addresses the recommendations of the Committee and the recommendations in Senator Scarr's dissenting report.

Recommendations

Recommendation 1: The committee recommends the Attorney-General's Department update the Explanatory Memorandum to the Attorney-General's Portfolio Miscellaneous Measures Bill 2023 to include further guidance and information to clarify how the proposed reforms to the Federal Court of Australia in Schedule 1 and 2 of the Bill will result in more efficient prosecution of corporate crimes and increased procedural fairness.

The Government supports this recommendation.

The Addendum tabled by the Government in the Senate on 16 May 2024 addresses this recommendation and the Committee's associated comments.

Recommendation 2: The committee recommends that, subject to the passage of the Bill, the Attorney-General's Department amend the Guidelines on the Marriage Act 1961 for authorised celebrants to reflect the requirements for a celebrant to hold a separate meeting with each party to the marriage before it is solemnised. The amendments should provide information as to how the meetings might operate in practice and how consent can be determined.

The Government supports this recommendation.

The Attorney-General's Department will amend the Guidelines on the Marriage Act 1961 for authorised celebrants to reflect the requirements for a celebrant to hold a separate meeting with each party to the marriage before it is solemnised.

There will not be a mandatory approach to the issue of separate meetings. The duration, timing and approach to a separate meeting with each party to a marriage will be at the discretion of the marriage celebrant, having regard to cultural and other relevant considerations. However, the department will work with celebrants and celebrant associations to develop options to support celebrants to comply with this obligation, for inclusion in the Guidelines.

Recommendation 3: The committee recommends the Bill be passed.

The Government notes this recommendation.

The Act received Royal Assent on 11 June 2024.

Dissenting recommendations of Senator Paul Scarr

Recommendation 1: It is recommended that the Bill be divided to allow the Senate to consider Part 2 of Schedule 4 (dealing with the Native Title Respondents Scheme) in its own bill separate from Schedules 1 and 3 and Parts 1 and 3 of Schedule 4 in the Bill.

The Government does not support this recommendation.

The Government considered that division of the Bill was not be an effective use of the Parliament's time. Scrutiny by this Committee illustrates that the Senate was able to appropriately consider the Bill in its entirety, including Part 2 of Schedule 4. Accordingly, no amendment was made to the relevant provisions.

Recommendation 2: It is recommended that the government considers providing additional commentary in the Explanatory Memorandum regarding the offence categories included in subsection 67G(4) to address the concern of the Law Council.

The Government notes this recommendation.

The Addendum tabled by the Government in the Senate on 16 May 2024 addresses this recommendation and Senator Scarr's associated comments.

Recommendation 3: It is recommended the government considers amending the Bill and/or its explanatory materials to include further matters that could guide the court's consideration about whether a transfer of proceedings would be in the interests of justice.

The Government does not support this recommendation.

The Addendum tabled by the Government in the Senate on 16 May 2024 states:

The Bill does not define the criteria for assessing the interests of justice. Rather, the court should assess the interests of justice on a case-by-case basis, having regard to the relevant circumstances. In this regard, the Bill is consistent with transfer regimes provided for in other Commonwealth legislation, particularly the [Jurisdiction of Courts (Cross-Vesting) Act 1987].

The methodology for assessing the interests of justice, including considerations, has been developed by the common law. This existing methodology would also apply to transfer decisions under the Bill.

Recommendation 4: It is recommended that the accused be provided the right to make an application to transfer proceedings as proposed by the Law Council.

The Government does not support this recommendation.

The Addendum tabled by the Government in the Senate on 16 May 2024 states:

Although the Bill does not afford the accused a right to apply for part or all of the proceedings to be transferred, the accused's right are protected in several ways. The principles of procedural fairness will require the court to provide the accused an opportunity to be heard before any decision to transfer or not transfer is made by the court. Depending on the relevant rules of court, the accused may have a right to make an application requesting the court exercise its powers to transfer proceedings on its own motion. Superior courts, such as the Federal Court, have inherent powers to protect the administration of justice and prevent abuses of power. These powers would ensure that transfers do not occur in circumstances which would unfairly prejudice the accused.

Recommendation 5: It is recommended that if the Bill is passed, the government refers to the CDPP for its consideration of the request of the Law Council that guidance material be developed by relevant federal agencies, and be made publicly available, about when a prosecutor should apply to transfer proceedings.

The Government notes this recommendation.

The management of prosecutions for the Australian Government is the responsibility of the Commonwealth Director of Public Prosecutions (CDPP). The CDPP publishes and maintains the Prosecution Policy of the Commonwealth and other materials to guide decision-making in the prosecution process. As an independent entity, the appropriateness and development of any guidance relating to whether to transfer proceedings is a matter for the CDPP.

Recommendation 6: It is recommended that the government considers including an enhanced explanation of jury preparation and jury selection processes in the Explanatory Memorandum to the Bill as requested by the Law Council.

The Government notes this recommendation.

The Addendum tabled by the Government in the Senate on 16 May 2024 addresses this recommendation and Senator Scarr's associated comments.

Recommendation 7: It is recommended that the government considers including in the Explanatory Memorandum more detailed specification of the criteria to be applied by the Sheriff in utilising the discretionary, hybrid jury preparation procedure proposed in Schedule 2 of the Bill.

The Government does not support this recommendation.

The Addendum tabled by the Government in the Senate on 16 May 2024 states:

Subject to certain safeguards …, the Sheriff will have discretion to determine whether a jury panel is to be prepared by the Sheriff or provided by a State/Territory jury official, on a case-by-case basis. The Sheriff is best placed to determine which of these approaches for preparing a jury panel is appropriate in the circumstances. Specifying detailed criteria to which the Sheriff must have regard when making their election could impact the efficiency and effectiveness of this measure.

Although the Sheriff will have discretion as to which of these approaches is to be adopted, the Bill provides a number of safeguards. The Sheriff must, in writing to the Chief Executive Officer of the Federal Court, elect whether a jury panel is to be prepared by the Sheriff or provided by a State/Territory jury official, pursuant to new section 23DD of the Federal Court Act. This ensures certainty for the Federal Court in managing the proceedings before it. A request by the Sheriff to a State/Territory jury official to prepare and provide a jury panel may only be made with the consent of the relevant State or Territory. Therefore, a State/Territory jury official will not be required to prepare and provide a jury panel for a particular jury trial unless the relevant State or Territory has consented to do so.

Recommendation 8: It is recommended that the amendments in the Bill in relation to subsection 42(1) of the Marriage Act 1961 relating to identity requirements be passed.

The Government notes this recommendation.

The Act, including the amendments in relation to subsection 42(1) of the Marriage Act, received Royal Assent on 11 June 2024.

Recommendation 9: It is recommended that the issues raised by the Celebrant Institute be considered through meetings held by the Attorney-General's Department and the Celebrant Associations and Networks, including at biennial meetings. If the results of such consultation indicate that any further clarifications or improvements should be made to the Marriage Act 1961 to address the concerns raised by the Celebrant Institute in its submission (or in relation to any other matter), then these should be the subj ect of a further amendment of the Marriage Act 1961 to be introduced into the Parliament as soon as reasonably practicable.

The Government notes this recommendation.

Recommendation 10: It is recommended that the issues raised by the Celebrant Institute be considered through meetings held by the AGD and the Celebrant Associations and Networks, including at biennial meetings. If the results of such consultation indicate that any further clarifications or improvements should be made to the Marriage Act 1961 to address the concerns raised by the Celebrant Institute.

The Government notes this recommendation.

Recommendation 11: It is recommended that the Bill not be passed if it continues to contain Part 2 of Schedule 4 abolishing the Native Title Respondent Scheme

The Government does not support this recommendation.

Abolition of the Native Title Respondents Scheme was an election commitment of the Government.

Consistent with its election commitment, the Government ceased providing this funding in the October 2022 Budget. The repeal of section 213A of the Native Title Act gives full effect to the Government's election commitment.

The Native Title Act has been in place for 30 years. Many legal questions and uncertainties have now been settled by the courts which means that the outcomes of many native title proceedings are more predictable, and in turn less costly. In addition, native title matters are increasingly being resolved through negotiation rather than litigation, which reduces the cost of involvement.

The Native Title Respondents Scheme has been used by a range of entities to fund their involvement in native title matters. With more legal certainty and familiarity with native title now, those entities should be in a position to factor the costs associated with native title matters into their expected business costs.

Accordingly, no amendment was made to the relevant provisions.