Penny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | Link to this | Hansard source

I present five government responses to committee reports as listed at item 14 on today’s Order of Business. In accordance with the usual practice, I seek leave to incorporate the documents in Hansard.

Leave granted.

The documents read as follows—

Australian Government response to the Senate Standing Committee on Finance and Public Administration’s Report on Annual Reports No. 1 of 2012, tabled on 15 March 2012.

Recommendation of the Senate Standing Committee on Finance and Public Administration:

Recommendation 1

2.52 The committee recommends that a list of all departments and agencies required to report on social exclusion outcomes should be published on the social inclusion website.

Australian Government response:

Agree. A list of the departments reporting on social inclusion strategic change indicators was published on the Government’s social inclusion website (www.socialinclusion.gov.au) on 13 December 2012.

Australian Government response to the Legal and Constitutional Affairs Legislation Committee report: Crimes Amendment (Fairness for Minors) Bill 2011

DECEMBER 2012

Background

On 25 November 2011, the Senate referred the Crimes Amendment (Fairness for Minors) Bill 2011 to the Legal and Constitutional Affairs Committee for inquiry and report. The Committee held a public hearing on 16 March 2012, and released its report on 4 April 2012, with four recommendations. Senator Sarah Hanson-Young prepared a dissenting report, with three recommendations.

The Australian Government Attorney-General's Department (AGD), in collaboration with the Commonwealth Director of Public Prosecutions (CDPP) and the Australian Federal Police (AFP), made a joint submission to the inquiry (the Commonwealth submission). Commonwealth officers also gave evidence at the Committee hearing.

The Commonwealth's submission recommended that the Senate should not pass the Bill. In summary, Commonwealth agencies considered the Bill's proposal to impose strict timeframes for age determination and laying charges would not be practical or achievable. The limitations on laying charges would also be inconsistent with section 15B(1)(a) of the Crimes Act 1914, which permits the Commonwealth to commence prosecutions for serious Commonwealth offences at any time.

Further, Commonwealth agencies considered the proposed presumption of age and associated detention arrangements would jeopardise the Commonwealth's ability to flexibly manage detainees on a case-by-case basis, taking into account a range of factors in accordance with 'the best interests of the child' principle under the United Nations' Convention on the Rights of the Child.

This paper sets out the Australian Government response to the Senate Committee's majority and dissenting reports.

Government Response: Majority Report

Recommendation 1

The committee recommends that the Australian Government review the Australian Federal Police ' s procedural and legislative requirements in dealing with persons suspected of people smuggling offences, with a view to facilitating the prompt laying of charges where appropriate.

Agreed in principle.

The AFP has worked hard to reduce the amount of time taken to investigate people smuggling offences and prepare a brief of evidence, setting a benchmark of 90 days to lay charges.

As a result of continuing efforts to reduce time in detention, the AFP advises that for the period from 1 January 2012 to 12 November 2012, the average period of investigation from the date of formal referral of crew by DIAC to the date of charging by the AFP is 74 days.

The Government is committed to further reducing delays in the investigation and prosecution of people smuggling offences. Commonwealth agencies are developing solutions to address delays, including obtaining identity documents from Indonesian consular officials in the first instance, pending a mutual assistance request. These documents may then inform the AFP's decision about whether to give a person the benefit of the doubt about their age, prior to laying charges.

Unfortunately, there are often delays to the investigation process caused by environmental factors, which are difficult to avoid. For example, weather conditions may cause delays in conveying items of evidence, such as mobile phones and GPS equipment, which require forensic analysis by experts and equipment on mainland Australia. There may also be delays in securing interpreters of specific dialects required for interviews or investigations.

In addition, passengers on board people smuggling vessels are sometimes initially unable or unwilling to provide statements, which are necessary to proceed with most people smuggling prosecutions.

Recommendation 2

The committee recommends that the Australian Government introduce legislation to expressly provide that, where a person raises the issue of age during criminal proceedings, the prosecution bears the burden of proof to establish that the person was an adult at the time of the relevant offence.

Agreed.

Under the Migration Act 1958, penalties for aggravated people smuggling offences do not apply to persons where it is 'established' on the balance of probabilities that they are under the age of 18 years. However, the legislation does not specify whether the prosecution or the defence bears the burden of proof.

There has been some inconsistency in the courts as to who bears the burden of proof. However, in practice, the CDPP has assumed the obligation of establishing whether the person is a minor or an adult, in cases where the defendant raises age as an issue.

The Government will consider amendments to the Migration Act that would codify current practice by specifying that the prosecution bears the onus of proof in establishing age, where age is contested during a prosecution.

Recommendation 3

The committee recommends that the Australian Government review options to support the capacity of the legal representatives of persons accused of people smuggling offences who claim to be underage at the time of the offence to gather evidence of age from their place of origin.

Disagree.

Commonwealth agencies facilitate access to legal aid by accused people smugglers as soon as the AFP requests to interview them. Commonwealth funding for legal aid in each State and Territory is provided through the Expensive Commonwealth Criminal Cases Fund. As part of this funding, legal aid representatives are entitled to claim the costs of reasonable disbursements, including costs associated with calling expert witnesses and gathering evidence of a defendant's age in their country of origin. To date, all costs claimed by legal aid commissions, including the costs of travel to Indonesia to collect identity documents, have been approved for reimbursement.

Recommendation 4

The committee recommends that the Senate should not pass the Bill.

Government response: Dissenting Report

Recommendation 1

The Bill be amended to require facilitation of timely access to legal advice, and that regulations require that children are afforded communication with their family.

Agreed in principle.

To address the issue of clients having access to legal advice in a timely fashion, the AFP has amended its practises concerning minors and provides those accused of people smuggling offences the opportunity to speak with legal representatives at the first available opportunity following referral from DIAC.

People smuggling crew held in immigration facilities are permitted to make domestic and international phone calls, and are allowed to try several different numbers until they make contact with their family or friends. These calls last approximately two minutes, to enable them to let the receiver know of their wellbeing. Individuals are permitted further additional time on a case by case basis. Due to poor mobile coverage in some countries, telephone contact is not always possible, which is typically understood by those trying to contact people in particular countries.

Internet access is also provided in immigration facilities after people are accommodated.

The only time phone calls are not attempted on the day of arrival is when a significant number of individuals arrive on the same day, as there is no distinction in the allocation of phone calls between people smuggling crew and other passengers arriving by boat. In situations like this, phone calls are generally completed over two or three days. DIAC considers these phone calls to be very important and it is a priority for these calls to be made as soon as possible.

The States and Territories are responsible for the management of individuals on remand or serving sentences for Commonwealth offences. This includes facilitating communication between detainees with both their families and legal representatives. All jurisdictions allow domestic phone calls, and most allow international calls. A table comparing the facilitation of contact by State and Territory correctional facilities between prisoners and their family or legal representatives is at Attachment A .

Recommendation 2

Item 3 of Schedule 1 of the Bill be amended so that proposed new subsection 3ZQAA(3) of the Crimes Act 1914 provides that the 30 day limit on bringing an application to a magistrate to determine a person ' s age applies from whichever is first of:

(a) The date the person is taken into immigration detention; or

(b) The date on which the person first asserts that he or she was a minor at the time of the alleged offence.

Disagree.

The recommended amendment does not change the practical effect of proposed new subsection 3ZQAA(3) in its current form.

Currently, the proposed subsection requires investigating officials to make an application to a magistrate to determine a person ' s age within 30 days of the person being taken into immigration detention. The recommended amendment to the subsection would require the 30 day timeframe to commence on either the date the person is taken into immigration detention, or the date on which the person first claims to be a minor; whichever is first.

In practice, a person will very rarely (if ever) be in a position to claim to be a minor before being taken into immigration detention. This is because immigration detention of people smuggling crew under section 189 of the Migration Act 1958 commences at the point of interception by Border Protection Command (BPC) personnel. Unless a member of a people smuggling crew is able to communicate their age to BPC personnel (or potentially to any Australian Government official) at least one day or more prior to their interception, the commencement date for the application period will always be the date of interception. Accordingly, even if earlier notification of the person ' s claim was possible, the timeframe would be almost identical.

As such, the Commonwealth ' s concerns with the provision as set out in the joint submission are still applicable. In particular, the reference to ' magistrate ' alone excludes the possibility of a superior court judge hearing an application. Further, the proposed provision does not clarify the meaning of ' application ' , which could be referring to the filing of an originating application, the age determination hearing before a magistrate, or both.

In addition, the period of 30 days to conduct an age investigation and make an application to a magistrate is impractical and will be, in some cases, impossible to comply with. The provision also retains the presumption of age in the defendant ' s favour, which has serious implications where the person is an adult and who, as a result of his claim alone, will automatically be required to be detained with minors.

The Commonwealth notes that other significant issues of concern about the Bill ' s remaining provisions, as set out in the Commonwealth ' s joint submission, have not been addressed by the recommendations made in the dissenting report.

Recommendation 3

That the Bill be passed by the Senate.

Attachment A: State and Territory correctional services facilitation of communication between prisoners and their families, and between prisoners and legal practitioners

Senate Legal and Constitutional Affairs Legislation Committee Report

Crimes Legislation Amendment (Slavery, Slavery -like Conditions and People Trafficking) Bill

March 2013

INTRODUCTION

On 19 June 2012, the Crimes Legislation Amendment (Slavery, Slavery -like Conditions and People Trafficking) Bill (the Bill) was referred to the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) for inquiry and report by 13 September 2012.

The Committee held a public hearing in Canberra on 29 August 2012.

The Bill was passed by the Senate on 27 February 2013.

BACKGROUND

This Bill would amend the existing people trafficking, slavery and slavery-like offences contained within Divisions 270 and 271 of the Criminal Code , the reparations provision in Part IB of the Crimes Act 1914 , and make consequential amendments to the Proceeds of Crime Act 2002 , the Migration Act 1958 and Telecommunications (Interception and Access) Act 1979 as follows:

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).

On 8 October 2012, the Government tabled an addendum to the Explanatory Memorandum for the Bill in the Senate, which takes this recommendation into account. The addendum makes it clear that the new offences apply irrespective of whether the relevant conduct occurs in the victim ' s public or private life. 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.

A copy of the addendum to the Explanatory Memorandum for the Bill is attached.

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.

Australia ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol), which supplements the United Nations Convention against Transnational Organized Crime , in 2005. The Australian Government takes its international obligations, including those under the Trafficking Protocol, very seriously.

Article 6.6 of the Trafficking Protocol states that each Party shall ' ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered ' . Under Australia ' s domestic legal system, compensation for victims of crime is generally a matter for States and Territories. Each State and Territory has a victims ' compensation scheme, which may be available to victims of people trafficking, slavery and slavery -like practices. A number of these victims have accessed compensation from these State and Territory schemes.

As such, the Government ' s view is that Australia has implemented measures that allow victims to obtain compensation, in accordance with Article 6.6 of the Trafficking Protocol. Given these considerations, the Government does not support establishing a Commonwealth victims ' compensation scheme at this time.

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.

Australia ' s anti-people trafficking strategy (the strategy) is designed to ensure a balance between victim welfare and criminal justice processes. Prosecutions for people trafficking, slavery and slavery -like practices rely heavily on witness assistance and testimony, and the complete de-linking of witness assistance and visa provisions from the criminal justice framework may affect the success of trafficking -related prosecutions.

The Government is committed to the continuous improvement of the Support for Trafficked People Program (the Support Program), aiming to provide a flexible, compassionate victim-focused program that is tailored to the individual needs of each client. The new funding agreement, commencing from 1 July 2012 with the current service provider, will provide greater flexibility and accountability in the delivery of the Support Program, to meet the individual needs of clients.

Over the life of the strategy, significant enhancements have been made in response to community sector feedback. In particular, a number of changes were made to the strategy in 2009 following extensive consultation with the community. The changes, which are outlined below, are in line with international best practice and the UN High Commissioner for Human Rights ' Recommended Principles and Guidelines on Human Rights and Human Trafficking:

To monitor and resolve operational matters, respond to new and emerging issues, and continue to explore ideas for enhancement of the strategy, the Australian Government has established an Operational Working Group, which is comprised of the Attorney-General's Department, the Australian Federal Police, the Office of the Commonwealth Director of Public Prosecutions, the Department of Families, Housing, Community Services and Indigenous Affairs, and the Department of Immigration and Citizenship. The Operational Working Group meets approximately every six weeks.

In addition, the strategy is also regularly reviewed externally by a number of bodies, including through the United Nations. In 2011 the strategy was reviewed both by the UN Special Rapporteur on Trafficking in Persons, especially women and children, and through the Universal Periodic Review process where United Nations Member States' human rights records are reviewed once every four years. Both of those reviews recognised Australia's role as a leader in regional efforts to combat trafficking.

Given these processes, and the extensive consultation on both the Visa Framework and the Support Program which led to enhancements in 2009, the Government does not propose to formally review the Visa Framework or the Support Program at this stage.

Recommendation 4

3.96 Subject to Recommendation 1, the committee recommends that the Senate pass the Bill.

The Australian Government notes this recommendation.

ATTACHMENT

CRIMES LEGISLATION AMENDMENT (SLAVERY, SLAVERY-LIKE CONDITIONS AND PEOPLE TRAFFICKING) BILL 2012

ADDENDUM TO THE EXPLANATORY MEMORANDUM

(Circulated by authority of the Attorney-General,

the Hon Nicola Roxon MP)

THIS MEMORANDUM TAKES ACCOUNT OF RECOMMENDATIONS MADE BY THE SENATE LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE

REPORT TABLED ON 13 SEPTEMBER 2012

NOTES ON CLAUSES

Schedule 1 — Criminal Code Amendments

Item 12

Section 270.5 Servitude offences

After "The new offences apply to all forms of servitude, regardless of whether the servitude is sexual in nature." on page 16, insert, "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."

Section 270.6A Forced labour offences

After "Whether the offence applied in a particular circumstance would be determined by the nature of the relationship between the victim and their 'employer', and not by the type of activity performed, however hard or hazardous, or the legality or illegality of the work under Australian law." on page 20, insert, "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."

Section 270.7B Forced marriage offences

After "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." on page 25, insert, "Where a person freely and fully consented to enter into a marriage, but was later coerced, threatened or deceived into remaining in the marriage, or the powers attaching to the right of ownership were exercised over the person, this may also amount to a servitude or slavery offence, or a domestic violence offence under State and Territory legislation."

Australian Government response to the

Senate Legal and Constitutional Affairs References Committee report:

Detention of Indonesian minors in Australia

DECEMBER 2012

BACKGROUND

On 10 May 2012 the Senate referred the matter of detention of Indonesian minors in Australia to the Legal and Constitutional Affairs References Committees for inquiry and report.

The inquiry considered:

(a) whether any Indonesian minors are currently being held in Australian prisons, remand centres or detention centres where adults are also held, and the appropriateness of that detention;

(b) what information the Australian authorities possessed or had knowledge of when it was determined that a suspect or convicted person was a minor;

(c) whether there have been cases where information that a person is a minor was not put before the court;

(d) what checks and procedures exist to ensure that evidence given to an Australian authority or department about the age of a defendant/suspect is followed up appropriately;

(e) the relevant procedures across agencies relating to cases where there is a suggestion that a minor has been imprisoned in an adult facility; and

(f) options for reparation and repatriation for any minor who has been charged (contrary to current government policy) and convicted.

The Attorney-General's Department (AGD) made a submission to the inquiry in collaboration with the Australian Federal Police (AFP). The Commonwealth Director of Public Prosecutions (CDPP) and the Department of Immigration and Citizenship (DIAC) also lodged submissions.

Officers from AFP, AGD, CDPP and DIAC appeared before the committee on 24 August 2012.

The Committee reported on 4 October 2012, providing seven recommendations to the Australian Government. The Chair of the Committee also presented a minority report with fifteen recommendations. This document provides a coordinated Government response to the inquiry recommendations.

Government Response: Majority Report

Recommendation 1

Subject to the advice of the Office of the Chief Scientist regarding the utility of wrist X -rays as an age assessment tool, and noting evidence received by the committee raising significant doubts about this procedure, the committee recommends that the Australian Government consider removing wrist X-rays as a prescribed procedure for the determination of age under 3ZQB of the Crimes Act 1914 and regulation 6C of the Crimes Regulations 1990.

Agreed in principle.

On 11 January 2012 the Chief Scientist, Professor Ian Chubb AC, advised AGD on the available scientific methods for determining chronological age. The advice confirmed that wrist X-rays did not allow for precise estimation of chronological age; that results vary with ethnic and socio-economic conditions; and that there were ethical considerations.

The 'observed variation' of two years for wrist X rays, identified by the Chief Scientist, further indicated that the science of wrist X-rays and statistical analysis from that science was a contested issue that required further expert consideration.

Between January and June 2012, AGD consulted further with the Office of the Chief Scientist on a number of age determination issues. This included seeking assistance on identifying available experts to assist the Commonwealth with the science of age determination, in particular to critically analyse the scientific and statistical basis for using wrist X-rays as an age determination procedure.

On 29 June 2012, the Office of the Chief Scientist provided AGD with advice relating to statistics and wrist X-rays from Professor Patty Solomon. In her report, Professor Solomon concluded that there is not enough scientific data in either the Greulich and Pyle Atlas or the TW3 Manual for those experts to draw sufficiently precise inferences of chronological age for young Indonesian males.

In order to address this issue, AGD is considering options for legislative amendments to remove wrist X-rays be removed as a prescribed procedure for age determination in the Crimes Act and Crimes Regulations.

Recommendation 2

The committee recommends that the Australian Government formalise arrangements for the Government of Indonesia to expedite the process of gathering evidence in Indonesia relating to the age of individuals who claim to be minors and are detained in Australia suspected of people smuggling offences.

Agreed.

The Foreign Evidence Act 1994 provides a mechanism for adducing material received from a foreign country in response to a mutual assistance request. The process can be complicated where a request is made to a country where government records, including birth, marriage and other identity records, are not centrally held. Even where a mutual assistance request is urgent and prioritised, it can take up to several months to receive the material sought. This mutual assistance process is assisted by the bilateral mutual assistance treaty with Indonesia, the Treaty between Australia and the Republic of Indonesia on Mutual Legal Assistance in Criminal Matters, done at Jakarta on 27 October 1995.

Since July 2011, the AFP has sought documents from the Indonesian National Police (INP) on a police-to-police basis. Recently the AFP commenced seeking documents from Indonesian consular officials in Australia. Where documents received through these processes indicate the person may be a minor, the AFP considers this material in deciding whether to give the person the benefit of the doubt. However, INP officials have advised the AFP that a mutual assistance request is required to obtain documents for use as evidence in prosecutions (in most cases, documents indicating the person is an adult).

The AFP continues to utilise all avenues available to it to expedite the process of gathering evidence relating to the age of Indonesian individuals detained in Australia suspected of people smuggling offences.

The defendant's legal representatives may also seek to present as evidence documents obtained from Indonesia containing information about the defendant's age or affidavits from relatives. The costs of obtaining this evidence are covered as a disbursement within a grant of legal aid.

Credible documentary evidence is not always available to support the claims of people smuggling crew about their age. Only 55 per cent of Indonesian births were recorded between 2000 and 2008. There are at least three different calendars used in parts of Indonesia, and it is commonly the case that Indonesian crew may not know their age or date of birth, and that there may be no documentation of their age or date of birth.

This recommendation reflects Australia's existing practice for making formal and informal requests for assistance to Indonesia; however any requests by Australia for the process to be expedited would be a matter for Indonesia to consider. It will always take time to obtain documents given the dispersed nature of the Indonesian archipelago, and in some cases documents may not exist.

Recommendation 3

The committee recommends that the Migration Act 1958 be amended to require that individuals suspected of people smuggling offences who claim to be minors be offered access to consular assistance as soon as practicable after their arrival in Australia.

Agreed in principle.

This recommendation reflects existing practice. However, some individuals choose not to accept consular assistance.

Indonesians detained in Australia for people smuggling are able to access consular assistance in accordance with the Vienna Convention on Consular Relations (VCCR) and Australia's Arrangement on Consular Notification and Assistance (the Consular Arrangement) with Indonesia, signed on 10 March 2010.

Australia's obligations under the VCCR and the Privacy Act 1988 prevent Australia from providing the personal particulars of any Indonesian national detained in Australia for people smuggling to Indonesian consular officials without that person's consent.

The Department of Foreign Affairs and Trade (DFAT) provides the initial notification to the Indonesian Embassy within three days that a SIEV has been boarded by Australian authorities and that Indonesian nationals, normally the crew of the vessel, are believed to be on board.

DIAC advises the Indonesian Embassy when Indonesian people smuggling crew enter immigration detention, are transferred between facilities, or leave immigration detention. Unidentified information (date of arrival, the number of individuals concern